Controversial Republican President Trump has been impeached by the House of Representatives for abuse of power and obstruction of justice in the Ukraine scandal. Now, the House is poised to send the articles of impeachment to the Senate for a trial with the possible (though unlikely) penalty of Trump’s removal from office.
But if some Framers had gotten their way, the process would be different.
At the Constitutional Convention, which convened in Philadelphia in May 1787, a variety of ideas were floated for the system of impeaching and trying a president.
Charles Pinckney of South Carolina proposed that the power of impeachment be given to a lower “House of Delegates” and the trial to the “judiciary.”
William Paterson’s plan, also known as the New Jersey plan, called for impeachment by a majority of the “executives of the several states” and trial in a unicameral congress.
Alexander Hamilton proposed that impeachments be tried by a court consisting of the judges of the Supreme Court and the “chief or senior judge of the superior court of law of each state provided that such judge hold his place during good behavior and have a permanent salary."
“The early favorite of many delegates was impeachment by the house and trial by the Supreme Court or some other body of judges,” Frank Bowman, a professor at the University of Missouri School of Law, wrote in his book, “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump." “Most delegates looked to the Supreme Court as the proper trial venue and that preference persisted throughout the summer.”
James Madison was a supporter of a Supreme Court trial and the idea stayed in the draft of the Constitution into August, Harvard Law Professor Cass Sunstein wrote in his book, “Impeachment: A Citizen’s Guide.” Madison argued that if the president were tried by the Senate instead, he would be “improperly dependent” on the Senate.
It’s not too far fetched an idea to have the president tried by the Supreme Court. About 40 nations worldwide try impeachments before the judiciary, and courts are also involved in three US states, Harvard Law Professor Laurence Tribe and Georgetown Law Professor Joshua Matz write in their book, “To End a Presidency: The Power of Impeachment.”
But other Framers, including Gouverneur Morris of New York, argued that members of the Supreme Court might be “warped or corrupted” by the fact that they had been appointed by the president whose case they were judging. They believed that the Senate would be the best entity to try the president.
“Morris’s position prevailed before the Convention, evidently on the theory that it was the least bad of the various imperfect solutions,” Sunstein wrote.
“A Court of Impeachments is among the most puzzling articles of a republican Constitution; and it is far more easy to point out defects in any plan, than to supply a cure for them,” Madison would later write.
Bowman said in a telephone interview there were numerous reasons the Senate was ultimately chosen as the trial venue.
One reason, he said, was the long history of English and colonial American impeachment, in which lower houses impeached officials and upper houses tried them. The Framers would have been familiar with that history.
“Something like that had been going on since 1376 on both sides of the Atlantic,” he said, referring to the first British impeachments during the reign of Edward III.
Another reason, he said, was that concerns about the Senate getting too much power over the president were allayed when the Framers decided against proposals that would have involved Congress in electing the president.
The Framers also knew that the courts were ultimately not the right place to try an impeachment, he said.
“I think they understood impeachment as being a fundamentally political process,” he said.
An impeachment trial is not just a judgment on the facts and the law, which judges are used to making, he said, but it’s also “a judgment about which facts ought to be sufficient to remove the chief magistrate of the country.”
“That takes judges way out of their comfort zone,” he said.
The Senate is about to make a determination on the facts of the case and then determine, “Do those facts matter constitutionally? And that’s not a judicial job,” he said.
Martin finucane can be reached at firstname.lastname@example.org