House Speaker Nancy Pelosi formally announced an impeachment inquiry against President Trump over a possible quid pro quo and abuse of power in foreign relations with Ukraine.
Under our Constitution, impeachment is a formal accusation made by the House of Representatives. Any such accusation, once made by a majority of the House, goes to the Senate. That body then conducts a trial of these charges, voting on whether to convict the president of them. If two-thirds or more vote to convict, the president is removed from office.
Pelosi’s launch commences only the fourth serious attempt to impeach a president. Two presidents have been impeached: Andrew Johnson in the late 1860s and Bill Clinton in the late 1990s. Richard Nixon seemed on his way until he resigned in 1974. However, no Senate ever has convicted a president. Clinton’s trial did not come close, Johnson’s fell short by one vote.
But all of this history raises an important question: Why did the Constitution give these powers to Congress in the first place? No higher authority on the Constitution than Federalist No. 65 and Federalist No. 66 give a number of reasons against it. For one, this set-up violates the principle of separation of powers. Alexander Hamilton admitted that it gives Congress, the lawmaking branch, the judicial power of conducting a trial and determining guilt or innocence.
For another, Hamilton noted a deficiency in making a part of Congress serve as jurors. Those determining guilt or innocence should possess the “necessary impartiality between an INDIVIDUAL accused, and…HIS ACCUSERS.” Yet he admits that impeachment proceedings “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” In fact, the impeachment process risks becoming little more than a test of strength between contending political coalitions.
Hardly a ringing endorsement. However, Hamilton notes the system’s weaknesses only to show its superiority to other options. The Supreme Court might seem a better alternative, especially as judges exercise the judicial power involved in impeachment and removal. But Hamilton points out that removing a president does not immunize him from criminal liability. He still may face a day in court if the impeachment and removal stemmed from committing felonies. That day (or days) in court could involve a judge who previously partook in the impeachment process. It is hard to think such a person impartial who already determined a defendant’s guilt on the same matter in a previous case.
Moreover, the Constitution could have created an entirely distinct body just for impeachments. Hamilton counters with the ways that various litigants could manipulate this system, how costly it could be, and that it is susceptible to the same “demon of faction” that any numerous body of humans faces.
In contrast, the House accusing and the Senate trying carries with it certain advantages. Hamilton observes that impeachable offenses will fall under “the abuse or violation of some public trust,” one against “society itself.” America and its people, then, are the alleged victims. Therefore, “who can so properly be the inquisitors for the nation as the representatives of the nation themselves?” What better means to vindicate a Constitution ordained by “We the People” than through their elected officials?
Furthermore, the divide between House and Senate makes sense as well. The House, with its two-year terms, is set up to reflect the more immediate and passionate will of the people. That passion better makes for accusation than for determination. The Senate, with its six-year allotments, better embodies an independence required to more calmly reflect, to more impartially weigh facts in a trial setting. As their combined deliberation makes legislation better, so their combined accusation and determination elevates the impeachment process.
We do not know for certain how this latest impeachment saga will end. Congress and the public must assess the legitimacy of these new accusations. But we can know and trust the Constitution’s process for such assessment and its placement in our legislative branch. As Hamilton admits, the Constitution here may not reach “the standard of perfection.” Still, the impeachment process shows an uncommon wisdom in a commonly imperfect world.
Adam Carrington is is assistant professor of politics at Hillsdale College.
