Defense Mechanism

Octavian Report: Can you talk about the genesis of impeachment as an enumerated power of the legislative branch?

Jeffrey Engel: Impeachment was a critical element of the Constitutional Convention and a critical element of the basic philosophy that underlay the creation of the government, which, of course, is the notion of a separation of powers. I actually don't like the term "separation of powers." I think the term "contest of powers" is more accurate. That is to say that the Founders were particularly fascinated by the concept of power, and their sense of government told them that wherever power was located, it would, of its own nature, try to accumulate more power. The term that they preferred was that power “encroaches.”

They recognized that every branch of government was going to want to encroach upon the other, that this competition would itself keep anybody from encroaching too far. So impeachment is an element critical to their sense of understanding any executive, in particular: executives, by their very nature, concentrate power in one individual, and that individual will want to encroach and increase their own power.

This is not unique to the Founders in any way. This actually goes back more to the British experience and particularly the British experience after the Glorious Revolution. All of which is to say when the Founders began talking about an executive, their next question was, "Well, what do we do if we get a bad one? What do we do if we get a dangerous one? How are we going to remedy that problem?" So for many of the Founders, the obvious answer was some form of impeachment.

The main argument against impeachment was twofold. First, that it would potentially make for a tyranny of the legislature: if we allow the legislature to to remove a President, they could just do so willy-nilly. Therefore, they could essentially get rid of somebody whom they simply didn't like, without a legitimate reason for getting rid of them.

But the second major reason why people opposed impeachment was the thinking that it was functionally unnecessary. We have to remember, of course, that we're dealing with the 18th Century timeframe here. Time moved more slowly in many ways. They were not dealing with nuclear weapons or air travel. So as a consequence, George Mason, as I recall, made this argument particularly strongly at first: that if we have a bad executive, the easiest solution is to vote him out of office at the next election. So why do we need impeachment, which has a possibility of disrupting our functioning government? Obviously, that argument lost out in the end to those who thought that the dangers of a dangerous President were not ones that could be sustained till the end of the next election cycle.

The really interesting question comes down to what makes for an impeachable President. And I should point out that most of the state constitutions that are written during and after the Revolution allow for impeachment of an executive for some reason akin to the word “maladministration,” which is a word that appears frequently in these discussions. If you break it down, it's a word that makes all the sense in the world. If somebody is a bad administrator, if somebody's doing a bad job, if somebody is incompetent, then that would be a reason to get rid of them (in addition to the reasons I'll talk about in a moment, which are if they are actively dangerous).

Ultimately James Madison pushes back against this notion. You must remember that everything that we know about the Constitutional Convention largely comes from Madison's own notes, so he always looks particularly good in these stories. He argued that maladministration is a terrible term because it’s so subjective that it would essentially allow the legislature to decide that any President at any time is a terrible administrator, just because he or she is doing something against what the legislature desires.

So he argues very vigorously, and others come to his side, that we have to get rid of all the subjective nature of this. It can't be about politics. It can't be a political question in any way. There has to be something deeper to require us to remove a President, because they do recognize that the President is there by the will of the people. So if the people made a stupid decision, then they should be stuck with their stupid decision unless that President is actively dangerous and harming the country — and not harming by bad policies; that would be maladministration — by conspiring or desiring to benefit himself or some foreign power instead of the American people.

The examples that the Founders gave at this point are really quite striking for our own day. I'm going to paraphrase them here, but it's only a slight paraphrase. "What if we had a President who won an election through the aid of a foreign power?" And they said, "Of course you should impeach him; he's somebody who's more beholden to a foreign power than to his own country." They said, "What if somebody had cheated in the election and they wanted to pardon people in order to cover up the crime?" They said, "Then you have to get rid of that person." "What if somebody had financial ties to a foreign power that made the foreign power have leverage over them?” “Then you should impeach them." All these things are strikingly similar to what we're debating today in the accusation phase against President Trump.

The bottom line is that they wound up employing this term "high crimes and misdemeanors," which, I argue, was absolutely clear to the people in the room, which is one of the reasons why it sounds weird to us. They didn't elaborate. Why would you elaborate on something that was absolutely obvious? “High crimes and misdemeanors” — a term that was used in British common law at the time — meant essentially crimes against the state or crimes against the people or crimes against a legitimate authority.