Chase Not Guilty in Impeachment Trial - History

Chase Not Guilty in Impeachment Trial - History


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Chase


The Jefferson Administration attempted to counter the power of the Supreme Court by impeaching judges. The first target was a New Hampshire Federalist, who was impeached by the House and convicted by the Senate. In 1803, the House of Representatives began an impeachment trial against Supreme Court Justice Samuel Chase. The House of Representatives, which was firmly controlled by the Jeffersonian Republicans, voted for impeachment. The Senate was chaired by Vice President Aaron Burr. During the trial, it was established that the only offenses that were impeachable were those indictable as crimes against the United States. Chase was found not guilty. This ended Jefferson's assault against the independent judiciary


President Jefferson was unhappy with the growing power of the Supreme Court, especially its claim that the judiciary had the exclusive power to determine whether a law was constitutional. Since Adams had appointed many Federalist to the courts Jefferson was determined to dilute their influence and remove as many as possible from the bench.

Samuel Chase had been appointed by George Washington to the Supreme Court in 1796. He naturally opposed Jefferson's attempt to curtail the power of the courts, speaking out against the repeal of the Judiciary Act in a charge to grand jury. Jefferson was angered by the outburst and wrote to Congressman Hopper Nicholson asking, about the seditious and official attack by Chase on the principles of our constitution go unpublished.

Jefferson allies in Congress responded when the House of Representatives impeached Chase on eight counts. The first count was his handling of the trail of John Fries; six of the counts related to various actions at other trials and finally one claimed he did not have the temperament to be a judge.

Once the House had voted to Impeach it was up to the Senate of either convict or finding Chase not guilty. The Senate voted overwhelmingly to find Chase not guilty. Event those who opposed the Federalist voted against the articles of Impeachment, believing that a judge should not be impeached for poor judicial decisions- he should be impeached only for illegal or unethical conduct. The impeachment of Judge Chase was the only time a Supreme Court Judge was never again impeached. The failure to convict Chase became a key factor that insured greater judicial independence.


Samuel Chase

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Samuel Chase, (born April 17, 1741, Princess Anne, Md. [U.S.]—died June 19, 1811, Washington, D.C., U.S.), associate justice of the U.S. Supreme Court, whose acquittal in an impeachment trial (1805) inspired by Pres. Thomas Jefferson for political reasons strengthened the independence of the judiciary.

Chase served as a member of the Maryland assembly (1764–84) and in the Continental Congress (1774–78, 1784–85). As a member of the latter, he signed the Declaration of Independence. He went on to serve as a judge of the Baltimore criminal court and then as chief judge of the Maryland General Court from 1791 to 1796, when Pres. George Washington appointed him to the U.S. Supreme Court. In Ware v. Hylton (1796), an important early test of nationalism, he upheld the primacy of U.S. treaties over state statutes. In Calder v. Bull (1798), he asserted that legislative power over liberty and property is limited by “certain vital principles in our free Republican governments” later courts read these principles into the “due process of law” clauses of the Fifth and the Fourteenth Amendment to the Constitution.

During the struggle between the Federalist and Jeffersonian Republican parties, Chase, a Federalist, conducted his circuit court in a partisan manner. The House of Representatives, encouraged by Jefferson, charged Chase with improper actions in treason and sedition trials and with a political address to a grand jury. In March 1805 the Senate, acting as trial court, found him not guilty. His acquittal, by establishing the principle that federal judges could be removed only for indictable criminal acts, clarified the constitutional provision (Article III, section 1) that judges shall hold office during good behaviour. Some scholars believe that if Chase had been found guilty, the Jefferson administration would have proceeded against other Federalist justices, particularly Chief Justice John Marshall, a leading opponent of Jefferson.

This article was most recently revised and updated by Michael Levy, Executive Editor.


Article 2 of the Constitution

After much debate at the 1787 Constitutional Convention in Philadelphia, the attendees𠅊mong them George Washington, Alexander Hamilton and Benjamin Franklin𠅊pproved the concept behind the impeachment of government officials.

Adapted from British law, the impeachment process was included in Article 2, Section 4 of the U.S. Constitution, the document that serves as the foundation of the American system of government.

Some framers of the Constitution were opposed to the impeachment clause, because having the legislative branch sit in judgement over the executive might compromise the separation of powers they sought to establish between the three branches of government: executive, legislative and judicial.

However, Elbridge Gerry of Massachusetts, who would later serve in the House of Representatives and as vice president under James Madison, noted, 𠇊 good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them.”


Contents

Samuel Chase was the only child of the Reverend Thomas Chase (c. 1703–1779) and his wife, Matilda Walker (? – by 1744), born near Princess Anne, Maryland. [2]

His father was a clergyman who immigrated to Somerset County to become a priest in a new church. Samuel was educated at home. He was eighteen when he left for Annapolis where he studied law under attorney John Hall. [2] He was admitted to the bar in 1761 [3] and started a law practice in Annapolis. It was during his time as a member of the bar that his colleagues gave him the nickname of "Old Bacon Face." [4]

In May 1762, Chase married Anne Baldwin, daughter of Thomas and Agnes Baldwin. Samuel and Anne had three sons and four daughters, with only four surviving to adulthood. [2] Anne died in 1776.

In 1784, Chase traveled to England to deal with Maryland's Bank of England stock, where he met Hannah Kilty, daughter of Samuel Giles, a Berkshire physician. They were married later that year and had two daughters, Hannah and Elisa. [2] [5]

In 1762, Chase was expelled from the Forensic Club, an Annapolis debating society, for "extremely irregular and indecent" behavior. [2]

In 1764, Chase was elected to the Maryland General Assembly where he served for 20 years. [3]

In 1766, he became embroiled in a war of words with a number of loyalist members of the Maryland political establishment. In an open letter dated July 18, 1766, Chase attacked Walter Dulany, George Steuart (1700–1784), John Brice (1705–1766), and others for publishing an article in the Maryland Gazette Extraordinary of June 19, 1766, in which Chase was accused of being: "a busy, reckless incendiary, a ringleader of mobs, a foul-mouthed and inflaming son of discord and faction, a common disturber of the public tranquility". In his response, Chase accused Steuart and the others of "vanity. pride and arrogance", and of being brought to power by "proprietary influence, court favour, and the wealth and influence of the tools and favourites who infest this city." [6]

In 1769, he started construction of the mansion that would become known as the Chase–Lloyd House, which he sold unfinished in 1771. The house is now a National Historic Landmark. [ citation needed ]

He co-founded Anne Arundel County's Sons of Liberty chapter with his close friend William Paca, as well as leading opposition to the 1765 Stamp Act. [2]

Continental Congress Edit

From 1774 to 1776, Chase was a member of the Annapolis Convention. He represented Maryland at the Continental Congress, was re-elected in 1776 and signed the United States Declaration of Independence. [3]

He remained in the Continental Congress until 1778. The involvement of Chase in an attempt to corner the flour market, using insider information gained through his position in the Congress, resulted in his not being returned to the Continental Congress and damaging his reputation. [ citation needed ]

In 1786, Chase moved to Baltimore, which remained his home for the rest of his life. In 1788, he was appointed chief justice of the District Criminal Court in Baltimore and served until 1796. In 1791, he became Chief Justice of the Maryland General Court, again serving until 1796. [3]

On January 26, 1796, President George Washington appointed Chase as an associate justice of the Supreme Court of the United States. Chase served on the court until his death on June 19, 1811. [3]

Impeachment Edit

President Thomas Jefferson, alarmed at the seizure of power by the judiciary through the claim of exclusive judicial review, led his party's efforts to remove the Federalists from the bench. His allies in Congress had, shortly after his inauguration, repealed the Judiciary Act of 1801, abolishing the lower courts created by the legislation and terminating their Federalist judges despite lifetime appointments Chase, two years after the repeal in May 1803, had denounced it in his charge to a Baltimore grand jury, saying that it would "take away all security for property and personal liberty, and our Republican constitution will sink into a mobocracy." [7] Earlier in April 1800, Chase acting as a district judge, had made strong attacks upon Thomas Cooper, who had been indicted under the Alien and Sedition Acts Chase had taken the air of a prosecutor rather than a judge. [8] Also in 1800, when a grand jury in New Castle, Delaware declined to indict a local printer, Chase refused to discharge them, saying he was aware of one specific printer whom he wished them to indict for seditious behavior. [9] Jefferson saw the attack as indubitable bad behavior and an opportunity to reduce the Federalist influence on the judiciary by impeaching Chase, launching the process from the White House when he wrote to Congressman Joseph Hopper Nicholson of Maryland, asking: "Ought the seditious and official attack [by Chase] on the principles of our Constitution . . .to go unpunished?" [10]

Virginia Congressman John Randolph of Roanoke took up the challenge and took charge of the impeachment. The House of Representatives served Chase with eight articles of impeachment in late 1803, one of which involved Chase's handling of the trial of John Fries. Two more focused on his conduct in the political libel trial of James Callender. One article covered Chase's conduct with the New Castle grand jury, charging that he "did descend from the dignity of a judge and stoop to the level of an informer by refusing to discharge the grand jury, although entreated by several of the said jury so to do." Three articles focused on procedural errors made during Chase's adjudication of various matters, and an eighth was directed at his "intemperate and inflammatory … peculiarly indecent and unbecoming … highly unwarrantable … highly indecent" remarks while "charging" or authorizing a Baltimore grand jury. On March 12, 1804, the House voted 73 to 32 to impeach Chase. [11] The United States Senate—controlled by the Jeffersonian Democratic-Republicans—began the impeachment trial of Chase on February 9, 1805, with Vice President Aaron Burr presiding and Randolph leading the prosecution.

All the counts involved Chase's work as a trial judge in lower circuit courts. (In that era, Supreme Court justices had the added duty of serving as individuals on circuit courts, a practice that was ended in the late 19th century.) The heart of the allegations was that political bias had led Chase to treat defendants and their counsel in a blatantly unfair manner. Chase's defense lawyers called the prosecution a political effort by his Republican enemies. [ citation needed ] In answer to the articles of impeachment, Chase argued that all of his actions had been motivated by adherence to precedent, judicial duty to restrain advocates from improper statements of law, and considerations of judicial efficiency. [ citation needed ]

The Senate voted to acquit Chase of all charges on March 1, 1805. There were 34 senators present (25 Republicans and 9 Federalists), and 23 votes were needed to reach the required two-thirds majority for conviction/removal from office. Of the eight votes cast, the closest vote was 18 for conviction/removal from office and 16 for acquittal in regards to the Baltimore grand jury charge. [12] He is the only U.S. Supreme Court justice to have been impeached. [3] Judge Alexander Pope Humphrey recorded in the Virginia Law Register an account of the impeachment trial and acquittal of Chase. [13]

The impeachment raised constitutional questions over the nature of the judiciary and was the end of a series of efforts to define the appropriate extent of judicial independence under the Constitution. It set the limits of the impeachment power, fixed the concept that the judiciary was prohibited from engaging in partisan politics, defined the role of the judge in a criminal jury trial, and clarified judicial independence. The construction was largely attitudinal, as it modified political norms without codifying new legal doctrines. [14]

The acquittal of Chase—by lopsided margins on several counts—set an unofficial precedent that many historians say helped ensure the independence of the judiciary. As Chief Justice William Rehnquist noted in his book Grand Inquests, some senators declined to convict Chase despite their partisan hostility to him, apparently because they doubted that the mere quality of his judging was grounds for removal. [7] All impeachments of federal judges since Chase have been based on allegations of legal or ethical misconduct, not on judicial performance. For their part, federal judges since that time have generally been much more cautious than Chase in trying to avoid the appearance of political partisanship. [15]

Samuel Chase died of a heart attack in 1811. He was interred in what is now Baltimore's Old Saint Paul's Cemetery. [16] [17]


Trump defiant after impeachment acquittal as Biden reflects on 'sad chapter' in US history

In a typically bold statement, Mr Trump hints he could be back in the political spotlight to "make America great again".

Sunday 14 February 2021 08:24, UK

Former US president Donald Trump has been found not guilty in his impeachment trial.

Although the final vote came in as 57 "guilty" and 43 "not guilty", the Democrats did not reach the two-thirds majority they needed to secure a conviction.

The path is now clear for Trump to run for president again. will he?

Seven members of Mr Trump's own party (Senators Sasse, Romney, Burr, Collins, Murkowski, Toomey and Cassidy) joined Democrats on the charge of incitement.

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In a statement after the trial, Mr Trump said it was "a sad commentary on our times" that the Democrats had been given a "free pass to transform justice into a tool of political vengeance, and persecute, blacklist, cancel and suppress all people and viewpoints with whom or which they disagree".

He added: "I always have, and always will, be a champion for the unwavering rule of law, the heroes of law enforcement, and the right of Americans to peacefully and honourably debate the issues of the day without malice and without hate.

Three things that make the verdict crucial to all of us

"No president has ever gone through anything like it, and it continues because our opponents cannot forget the almost 75 million people, the highest number ever for a sitting president, who voted for us just a few short months ago."

US President Joe Biden said the acquittal was a reminder that democracy was "fragile", and every American had a duty to defend the truth.

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"While the final vote did not lead to a conviction, the substance of the charge is not in dispute," he said in a statement.

"Even those opposed to the conviction, like Senate Minority Leader McConnell, believe Donald Trump was guilty of a 'disgraceful dereliction of duty' and 'practically and morally responsible for provoking' the violence unleashed on the Capitol.

"This sad chapter in our history has reminded us that democracy is fragile. That it must always be defended. That we must be ever vigilant. That violence and extremism has no place in America. And that each of us has a duty and responsibility as Americans, and especially as leaders, to defend the truth and to defeat the lies."

Mr Trump had been charged with "incitement of insurrection" over last month's violence when the US Capitol was stormed by his supporters, just as Congress was attempting to ratify the 2020 election result.

Just before the 6 January riots, thousands of his supporters gathered at a "Save America" rally on the National Mall, minutes away from the Capitol.

It had been organised to challenge the election result and Mr Biden's win.

Mr Trump's supporters listened to him speak for 70 minutes, during which at one point the former reality star exhorted them to "fight like hell - or you're not going to have a country anymore".

The attack began moments after he took the applause.

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At the impeachment hearing, Mr Trump's defence team had launched a blistering attack on the Democrats, describing proceedings as a "unjust, unconstitutional witch-hunt".

Michael van der Veen, Mr Trump's lawyer, said: "This whole spectacle has been nothing but the unhinged pursuit of a long-standing political vendetta against Mr Trump by the opposition party."

He told the hearing Mr Trump was not to blame and that he had told his supporters to protest peacefully.

It was argued that his speech at the rally was "ordinary political rhetoric" and was constitutionally protected free speech.

Washington's most powerful Republican, senate minority leader Mitch McConnell, dealt a blow to an ebullient Mr Trump by saying he believed he was "morally responsible" for the Capitol attack, and said he only voted to acquit him because he believed the senate had no jurisdiction over a former president.

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It is the first time in history that a US president has been impeached twice.

The first attempt to convict Mr Trump in January 2020, for abuse of power and obstruction of Congress, saw him acquitted by a majority of 52 votes to 48 for one charge and 53 to 47 for the second.

Only one Republican voted against him on one of the charges.

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In his defiant statement after the conclusion of Saturday's vote, Mr Trump hinted he may return to the political spotlight.

He said: "Our historic, patriotic and beautiful movement to Make America Great Again has only just begun.

"In the months ahead I have much to share with you, and I look forward to continuing our incredible journey together to achieve American greatness for all of our people.


The chief justice who presided over the first presidential impeachment trial thought it was political spectacle

On March 5, 1868, the first day of President Andrew Johnson's impeachment trial, the following item appeared on the front page of the Brooklyn Daily Eagle:

The sheer poetry of this news item is unlikely to be repeated in the coverage of President Trump’s Senate trial.

As Trump’s trial gets set to begin, the spotlight is inevitably turning — just as it did with Johnson — to the chief justice of the United States, who must somehow preside over this very odd, kind-of-sort-of legal process of politicians sitting in judgment of the country’s commander in chief.

In Johnson’s trial, it was Salmon P. Chase.

Chase — not to be confused with Justice Samuel Chase, whose nickname was “Old Bacon Face” — was an extremely serious and pious man. Some of his closest friends could not recall ever seeing him laugh.

“Chase neither drank nor smoked,” the historian Doris Kearns Goodwin once wrote. “He considered both theater and novels a foolish waste of time and recoiled from all games of chance, believing that they unwholesomely excited the mind.”

Born in New Hampshire to farmers, Chase was an Episcopalian. From early on, his parents hammered into his psyche that there was a bright line between moral and amoral. Naturally, this upbringing imbued in Chase a keen sense of right and wrong.

Chase became a lawyer, eventually settling in Ohio were he defended runaway slaves. He was grumpy but popular. In 1848, the Ohio legislature elected him to the U.S. Senate — that’s how it worked back then — and upon tasting political power Chase could not shake it.

Chase won two terms as Ohio’s governor, then ran for president against Abraham Lincoln — losing, of course to the more affable Honest Abe.

Lincoln made Chase part of his “Team of Rivals,” the title of Goodwin’s bestseller about Lincoln’s presidency, appointing him treasury secretary. Chase’s contributions to the formation of the national banking system were celebrated years later when his portrait appeared on the $10,000 bill.

Chase and Lincoln got along about as well as Nancy Pelosi and Mitch McConnell. Lincoln always harbored the suspicion that Chase was a political opportunist. Chase thought Lincoln wasn’t as anti-slavery as he was. There were disputes over war policy and personnel matters at Treasury.

Ultimately, Chase resigned — three times. Lincoln refused the first two, then accepted the third. There were no hard feelings from Lincoln, though.

In 1864, after the death of Chief Justice Roger B. Taney, Lincoln selected Chase as his replacement. It was yet another stroke of Lincoln’s political genius.

Taney wrote the majority opinion in what many historians consider to be the worst Supreme Court decision in history — Dred Scott v. Sandford, which held that those of African descent could not be U.S. citizens. Chase had defended runaway slaves. After emancipation, Lincoln saw Chase as an inspired choice.

Lincoln nominated Chase on Dec. 4, 1864. The Senate confirmed him on Dec. 4, 1864.

(Imagine a Supreme Court nomination taking a single day!)

On the evening of April 14, 1865, Lincoln was shot. He was pronounced dead the next morning. His vice president, Andrew Johnson, became president. Chase swore him in. Three years later, Chase presided over Johnson’s impeachment trial.

This was a confusing time. There were no precedents to follow. In fact, according to historian John P. Niven’s biography of Chase, it wasn’t even clear who should conduct the trial — the president of the Senate (who was Johnson’s political enemy) or the chief justice (who was supposed to be nobody’s enemy.)

Chase consulted the Constitution, which said the “Senate shall have the sole Power to try all Impeachments.” That meant the Senate’s highest officer was in charge. But it also said, “When the President of the United States is tried, the Chief Justice shall preside.”

So Chase would preside. Next problem: The Constitution gives no guidance about what “preside” actually means. Chase took it upon himself, Niven wrote, to pressure the Senate to “be organized in some particulars as a court” and Chase “insisted he should rule on the competency of witnesses and on the evidence.”

Johnson was on trial for, among other things, violating the Tenure of Office Act in 1867, which said the president couldn’t fire important government officials unless he got the go-ahead from the Senate. Johnson had fired the secretary of war, Edwin M. Stanton, without consulting the Senate. Cue impeachment.


Chase Not Guilty in Impeachment Trial - History

With Nancy Pelosi finally sending the impeachment articles to the Senate and Mitch McConnell’s plan to open the Senate trial on Tuesday, Impeachment Act III opens. Unlike Acts I (Schiff) and II (Nadler), which jettisoned the Nixon (1974) and Clinton (1999) precedents, Act III will feature Republicans seeking to return to due process, based on the two 20th-century presidential impeachments. Pelosi’s appointment of Schiff and Nadler means Democrats will try to import Acts I and II into Senate procedure.

The House vote to impeach should be understood as a radical departure from not only longstanding American precedent but also English antecedents, dating back to the year 1350. We will look at English antecedents through the lens of early American precedents, which derived from, but evolved differently than, the English legacy.

This article is the first of two. Next week, my second article will examine more closely the Nixon and Clinton precedents.

Early America, (1635–1787): In their 1984 study of how impeachment developed in America, co-authors Peter C. Hoffer and N. E. H. Hull identify three phases: (a) criminal impeachment, during which officials were targeted for criminal offenses (b) provincial impeachment, during which officials were targeted for abuse of local governance and (c) revolutionary impeachment, when the target was abuse of power by their overlords in the English parliament.

Most nettlesome were problems stemming from the inherently hybrid vehicle of impeachment: it intertwined legislative, executive, and judicial elements. It thus created tensions among the branches, and among political and legal principles, that could be limited but never fully resolved. The solution settled upon by the Framers was to adopt from English law the judicial nature of trials but not seat them in the judiciary. Instead, trials would be conducted in the Senate (roughly equivalent to Britain’s House of Lords), with impeachment (the filing of charges) brought by the House of Representatives (roughly equivalent to Britain’s House of Commons). In effect, while impeachment and removal of officials is a political act, its procedures must be governed by legal norms in the trial phase. The Framers rejected one major aspect of English practice: removal of officers for mere maladministration or incompetence. The American presidency was not to be dominated by the Congress.

The late Sen. Robert Byrd, who had been majority leader and also wrote a magisterial two-volume history of the Senate’s first two centuries, added to the above that the Framers were intimately familiar not only with English practice but also with impeachment in colonial America and America under the Articles of Confederation. Their acquaintanceship included experience with impeachments in actual practice, not simply as history. But many early impeachments were directed at maladministration, a ground so broad that it would have transformed the presidency into a state of vassalage. This would have created a “no-confidence” parliamentary system, one the Framers decisively rejected. (One notable target of state-level impeachment was Virginia Gov. Thomas Jefferson, and supporters included Declaration signers Richard Henry Lee and Patrick Henry. The charges, over the governor’s handling of the state militia, went nowhere.)

The American Republic. Since its 1789 birth, America has seen 19 impeachments. These include 15 judges, one Cabinet member (secretary of war in 1875), and three presidential impeachments: Andrew Johnson, impeached by the House but then acquitted in the Senate (1868), Richard Nixon, who resigned facing certain impeachment (1974), and Bill Clinton (impeached in 1998, acquitted in 1999).

Let us look back at two key 19th-century precedents: the first significant impeachment of a judge, Samuel Chase (1804–05), narrowly acquitted in his Senate trial and the first impeachment of a president, Andrew Johnson (1868), also narrowly acquitted. Doing so will offer us historical guideposts that can instruct us as to the present situation. We begin with the Framers of 1787–88.

The Framers of Philadelphia. In his contemporaneous Notes of Debates in the Federal Convention of 1787, James Madison, whose stellar role in those debates and his role in writing the Federalist Papers earned him the sobriquet “Father of the Constitution,” summarized (his Notes were not verbatim) the exchanges in Philadelphia, on impeachment. Madison explained the necessity of having a remedy for the “incapacity, negligence, or perfidy” of the president, with the fixed four-year term an insufficient safeguard. The vote, by State, was 8-2 in favor of making the executive impeachable. Notably, the presidential pardon power, virtually absolute, was expressly denied the president as to impeachments.

The Grand Convention that met in Philadelphia over the summer of 1787 was followed by the campaign from September 1787 to July 1788, conducted by way of The Federalist, 85 papers that by virtual acclamation constitute the greatest reflection on constitutional governance in world history. Put simply, without the latter, the former would never have been ratified. Papers 65, 66, 79, and 81, all attributed to Alexander Hamilton, address impeachment.

In paper 65, Hamilton writes that impeachable offenses are political and that “The prosecution of them, for this reason, 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.”

The Senate, insulated from the passions of the day — elected to six-year terms by state Legislatures until passage of the 17th Amendment in 1913 — was thus better suited to adjudicate trials than the House of Representatives, elected every two years by direct popular vote. The Supreme Court bench was too few in number to fill the role. Hamilton goes on to note that after impeachment, the president would still be subject to prosecution in the law courts. In paper 66, Hamilton notes that making the House the locus of impeachment — the formal filing of charges — and then the Senate as locus for trial separates the accusers from those who pass final judgment. Ever skeptical of human nature, Hamilton drily says of the Senate, “We may thus far count upon their pride, if not their virtue.” In Federalist 79, he notes that the Constitution prohibits diminishing compensation of judges during their tenure, but increases are allowed this is because they serve for life. In paper 81, Hamilton stresses that judges hold office during “good behavior,” a safeguard needed given life tenure. Impeachment of judges provides the remedy for bad behavior.

The Framers adopted one final provision to guard against usurpation of presidential power by a sitting vice president: whereas for all other impeachments, the vice president presides over the Senate, when presidents are on trial, the chief justice of the Supreme Court presides. (A key inside player is the Senate parliamentarian, who will advise the chief justice on procedural rulings her advice is likely to weigh heavily.) The chief justice, however, cannot cast a tie-breaking vote, as vice presidents do on other Senate votes. Thus Republicans, with 51 senators, cannot lose any of their number, if they are to overrule parliamentary rulings by the chief justice — unless one or more Democrats vote with the Republicans.

There is, of course, one other impeachment trial over which the vice president cannot preside: if the vice president is impeached and faces Senate trial. The presiding officer is the president pro tempore — in this Senate, Iowa’s Chuck Grassley. In 1868, the vice presidency was vacant, Andrew Johnson having risen to the presidency upon Lincoln’s death. That year, the radical Republican senator from Ohio, Benjamin Wade, presided, per the 1792 law governing presidential succession, which provided for succession by the president “pro tem” of the Senate and then the Speaker of the House. (In 1886, the line of succession was changed to be the cabinet secretaries, in order of department creation, beginning with the secretary of state, with Congress excluded. In 1947, at Harry Truman’s request, Congress put the speaker of the House first after the vice president, and then the president pro tem, followed by the Cabinet heads, in chronological order.)

Samuel Chase. In the 19th century, Supreme Court judges served in two capacities: in Washington, D.C., for a few months per year, they sat as justices of the Supreme Court, and for much of the rest of each year, they sat on federal district courts, hearing cases alongside a local federal district court judge. Federal district courts were scattered across the several states, the number of which expanded during the 19th century. Each Supreme Court justice was assigned a “circuit” of courts where they would sit doing so entailed “riding circuit” on horseback. To reach courts in remote areas could take weeks.

Samuel Chase faced impeachment only for his alleged misconduct during trials where he sat whilst riding circuit his actions on the Supreme Court were not targeted. Mainly the complaints centered on his nasty judicial temperament. He escaped impeachment on one count by a single vote in the Senate. The late Chief Justice William Rehnquist observed in his magisterial history of impeachments, Grand Inquests (1992), that the failed Chase impeachment set the bar high: judges would not be impeached for specific rulings they made or for their points of view. Some form of aggravated misconduct, often but not necessarily criminal, would be required. Rehnquist noted that these boundary lines preserved the independence of the federal judiciary. Those lines have not been crossed yet.

Turning to the presidential impeachments and trials, all began with two major threshold procedural moves. They were specifically authorized to commence an impeachment inquiry by recorded floor votes of the full House, and they were conducted in full public view. Of the latter, in the 19th-century distance communications were limited to the wireless telegraph, while the 1974 and 1998–99 proceedings were vastly amplified by pervasive radio and television. Although online internet access was available, it was very limited. The past 20 years has seen an explosive growth of U.S. household fixed (excluding mobile-only) access. In 2000, there were but 7 million such households in 2018 there were over 110 million. Thus, from now on, social media surely will play a political role in high-visibility impeachments (those of presidents, vice presidents, and Supreme Court justices).

Andrew Johnson. The tumultuous effort to unseat Andrew Johnson is recognized by historians as a prime example of an abusive impeachment and one lacking in merit. The sequences of events began with the 39th Congress, whose term ran until March 4, 1867 (a date not changed until the 20th Amendment moved the presidential inauguration to January 20, beginning in 1937). In December 1866, the 39th House of Representatives voted to open in impeachment inquiry, referring the matter to the House Judiciary Committee (HJC). Tellingly, Rehnquist writes that the HJC inquiry did not — pace Adam Schiff today — act as a grand jury, which is convened to investigate specific crimes rather, it was in form a political campaign seeking to levy charges against an opponent.

Meanwhile, the full 39th Congress, in its closing months, passed three bills: (a) the Reconstruction Act, superseding existing governance in the defeated states with far harsher rules (b) the Army Appropriations Act, requiring that all presidential orders under the law go through Gen. Ulysses S. Grant, who could not be removed by the president without Senate approval and (c) the Tenure of Office Act (TOA), on removal of executive appointees. Johnson vetoed the first law, which then was passed by overriding his veto. The army bill Johnson signed, with a statement questioning its constitutionality.

The heart of the case against Johnson was his firing of Secretary of War Edwin Stanton, in violation of the third law. The TOA expressly prohibited president Johnson from firing executive branch officials confirmed by the Senate, one of which was Stanton, a War Democrat (like Johnson) who frequently tried to undercut Johnson’s Reconstruction policies. Widely accepted now as an unconstitutional law and vetoed by Johnson citing exactly that reason, the Radical Republicans (RRs) resolved to remove Johnson for having done so. They came within one vote of succeeding in the Senate trial (as had the Democrat-Republicans in the Samuel Chase trial in 1805).

Immediately upon the expiration of the 39th Congress, the 40th Congress, far more tilted toward the RRs, convened. The new Senate took a significant step: it elected RR Benjamin Wade of Ohio as president pro tem to preside over the Senate when the vice president is not in attendance. But as Johnson became president upon Lincoln’s assassination, the vice presidency was vacant. Were Johnson removed from office, under the succession law, then Wade would ascend from his senatorial post to become president.

Justice Rehnquist notes the irony in the Johnson 1868 conflict coming to a head on George Washington’s calendar birthday (February 22, a Saturday in 1868) — a date celebrated separately, as was Lincoln’s (February 9), but later sacrificed on the altar of long weekends and bargain shopping. The House started impeachment proceedings on Sunday, in the Reconstruction Committee, and on Monday, February 24, voted along party lines, 126 to 47, in favor of impeachment. On February 29, a special committee convened solely to draw up articles of impeachment reported out nine articles. Every article save two was directed at the president’s exercise of rights to fire executive branch employees and/or the assertion of his right to do so.

The House managers were mostly RRs, but moderate John Bingham of Ohio was selected as chairman of the managers. The Senate appointed six RRs and one Democrat to draw up rules for the trial. On March 4, 1868 — exactly one year after the 40th Congress was convened, the Senate convened to receive the articles of impeachment from the House managers. On March 5, Chief Justice Salmon Chase was sworn in to preside over the Senate trial. After procedural wrangles, the trial commenced on March 30. On May 16 and 26, votes were taken on three of the 11 articles. They all failed. Astonishingly, the Senate never voted on the other eight articles.

The TOA was repealed in 1887, during Grover Cleveland’s first term. In Myers v. United States (1926), the Supreme Court held that presidents have plenary power to fire executive-branch employees. But in Humphrey’s Executor (1935), the Supreme Court partly backtracked: Congress can create an agency that exercises legislative and/or judicial powers and can prevent presidents from firing such officials by limiting presidential authority to fire to executive-branch officials. And in Morrison v. Olson (1988), the Supreme Court — 7-1, over Justice Scalia’s vigorous dissent — upheld the Office of the Independent Counsel, created by the 1978 Ethics in Government Act. Although in 1999, bipartisan majorities in both Houses voted to abolish the office, this precedent leaves open the prospect that a future Congress, if dominated by one party, could revive the law to harass a president of another party.

Bottom Line. In the 19th century, the historical precedents for impeachment narrowed in three important ways: (1) impeachments would not be based upon opposition to substantive presidential policy (2) impeachments would not lie for generalized “maladministration” and (3) impeachments would not be based upon usurpation of legitimate powers given the president.

In effect, Democrats aim to revive 19th-century impeachment precedents, markers that were rejected during the Nixon and Clinton impeachments.

John C. Wohlstetter is author ofSleepwalking with the Bomb (2014).


The Invention—and Reinvention—of Impeachment

Bird-eyed Aaron Burr was wanted for murder in two states when he presided over the impeachment trial of Supreme Court Justice Samuel Chase in the Senate, in 1805. The House had impeached Chase, a Marylander, on seven articles of misconduct and one article of rudeness. Burr had been indicted in New Jersey, where, according to the indictment, “not having the fear of God before his eyes but being moved and seduced by the instigation of the Devil,” he’d killed Alexander Hamilton, the former Secretary of the Treasury, in a duel. Because Hamilton, who was shot in the belly, died in New York, Burr had been indicted there, too. Still, the Senate met in Washington, and, until Burr’s term expired, he held the title of Vice-President of the United States.

The public loves an impeachment, until the public hates an impeachment. For the occasion of Chase’s impeachment trial, a special gallery for lady spectators had been built at the back of the Senate chamber. Burr, a Republican, presided over a Senate of twenty-five Republicans and nine Federalists, who sat, to either side of him, on two rows of crimson cloth-covered benches. They faced three rows of green cloth-covered benches occupied by members of the House of Representatives, Supreme Court Justices, and President Thomas Jefferson’s Cabinet. The House managers (the impeachment-trial equivalent of prosecutors), led by the Virginian John Randolph, sat at a table covered with blue cloth at another blue table sat Chase and his lawyers, led by the red-faced Maryland attorney general, Luther Martin, a man so steady of heart and clear of mind that in 1787 he’d walked out of the Constitutional Convention, and refused to sign the Constitution, after objecting that its countenancing of slavery was “inconsistent with the principles of the Revolution and dishonorable to the American character.” Luther (Brandybottle) Martin had a weakness for liquor. This did not impair him. As a wise historian once remarked, Martin “knew more law drunk than the managers did sober.”

Impeachment is an ancient relic, a rusty legal instrument and political weapon first wielded by the English Parliament, in 1376, to wrest power from the King by charging his ministers with abuses of power, convicting them, removing them from office, and throwing them in prison. Some four hundred years later, impeachment had all but vanished from English practice when American delegates to the Constitutional Convention provided for it in Article II, Section 4: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

It’s one thing to know this power exists. It’s another to use it. In one view, nicely expressed by an English solicitor general in 1691, “The power of impeachment ought to be, like Goliath’s sword, kept in the temple, and not used but on great occasions.” Yet this autumn, in the third year of the Presidency of Donald J. Trump, House Democrats have unsheathed that terrible, mighty sword. Has time dulled its blade?

Impeachment is a terrible power because it was forged to counter a terrible power: the despot who deems himself to be above the law. The delegates to the Constitutional Convention included impeachment in the Constitution as a consequence of their knowledge of history, a study they believed to be a prerequisite for holding a position in government. From their study of English history, they learned what might be called the law of knavery: there aren’t any good ways to get rid of a bad king. Really, there were only three ways and they were all horrible: civil war, revolution, or assassination. England had already endured the first and America the second, and no one could endorse the third. “What was the practice before this in cases where the chief Magistrate rendered himself obnoxious?” Benjamin Franklin asked at the Convention. “Recourse was had to assassination, in which he was not only deprived of his life but of the opportunity of vindicating his character.”

But the delegates knew that Parliament had come up with another way: clipping the King’s wings by impeaching his ministers. The House of Commons couldn’t attack the King directly because of the fiction that the King was infallible (“perfect,” as Donald Trump would say), so, beginning in 1376, they impeached his favorites, accusing Lord William Latimer and Richard Lyons of acting “falsely in order to have advantages for their own use.” Latimer, a peer, insisted that he be tried by his peers—that is, by the House of Lords, not the House of Commons—and it was his peers who convicted him and sent him to prison. That’s why, today, the House is preparing articles of impeachment against Trump, acting as his accusers, but it is the Senate that will judge his innocence or his guilt.

Parliament used impeachment to thwart monarchy’s tendency toward absolutism, with mixed results. After conducting at least ten impeachments between 1376 and 1450, Parliament didn’t impeach anyone for more than a hundred and seventy years, partly because Parliament met only when the King summoned it, and, if Parliament was going to impeach his ministers, he’d show them by never summoning it, unless he really had to, as when he needed to levy taxes. He, or she: during the forty-five years of Elizabeth I’s reign, Parliament was in session for a total of three. Parliament had forged a sword. It just couldn’t ever get into Westminster to take it out of its sheath.

The Englishman responsible for bringing the ancient practice of impeachment back into use was Edward Coke, an investor in the Virginia Company who became a Member of Parliament in 1589. Coke, a profoundly agile legal thinker, had served as Elizabeth I’s Attorney General and as Chief Justice under her successor, James I. In 1621—two years after the first Africans, slaves, landed in the Virginia colony and a year after the Pilgrims, dissenters, landed at a place they called Plymouth—Coke began to insist that Parliament could debate whatever it wanted to, and soon Parliament began arguing that it ought to meet regularly. To build a case for the supremacy of Parliament, Coke dug out of the archives a very old document, the Magna Carta of 1215, calling it England’s “ancient constitution,” and he resurrected, too, the ancient right of Parliament to impeach the King’s ministers. Parliament promptly impeached Coke’s chief adversary, Francis Bacon, the Lord Chancellor, for bribery Bacon was convicted, removed from office, and reduced to penury. James then dissolved Parliament and locked up Coke in the Tower of London.

Something of a political death match followed between Parliament and James and his Stuart successors Charles I and Charles II, over the nature of rule. In 1626, the House of Commons impeached the Duke of Buckingham for “maladministration” and corruption, including failure to safeguard the seas. But the King, James’s son, Charles I, forestalled a trial in the House of Lords by dismissing Parliament. After Buckingham died, Charles refused to summon Parliament for the next eleven years. In 1649, he was beheaded for treason. After the restoration of the monarchy, in 1660, under Charles II, Parliament occasionally impeached the King’s ministers, but in 1716 stopped doing so altogether. Because Parliament had won. It had made the King into a flightless bird.

Why the Americans should have resurrected this practice in 1787 is something of a puzzle, until you remember that all but one of England’s original thirteen American colonies had been founded before impeachment went out of style. Also, while Parliament had gained power relative to the King, the Colonial assemblies remained virtually powerless, especially against the authority of Colonial governors, who, in most colonies, were appointed by the King. To clip their governors’ wings, Colonial assemblies impeached the governors’ men, only to find their convictions overturned by the Privy Council in London, which acted as an appellate court. Colonial lawyers pursuing these cases dedicated themselves to the study of the impeachments against the three Stuart kings. John Adams owned a copy of a law book that defined “impeachment” as “the Accusation and Prosecution of a Person for Treason, or other Crimes and Misdemeanors.” Steeped in the lore of Parliament’s seventeenth-century battles with the Stuarts, men like Adams considered the right of impeachment to be one of the fundamental rights of Englishmen. And when men like Adams came to write constitutions for the new states, in the seventeen-seventies and eighties, they made sure that impeachment was provided for. In Philadelphia in 1787, thirty-three of the Convention’s fifty-five delegates were trained as lawyers ten were or had been judges. As Frank Bowman, a law professor at the University of Missouri, reports in a new book, “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump,” fourteen of the delegates had helped draft constitutions in their own states that provided for impeachment. In Philadelphia, they forged a new sword out of very old steel. They Americanized impeachment.

This new government would have a President, not a king, but Americans agreed on the need for a provision to get rid of a bad one. All four of the original plans for a new constitution allowed for Presidential impeachment. When the Constitutional Convention began, on May 25, 1787, impeachment appears to have been on nearly everyone’s mind, not least because Parliament had opened its first impeachment investigation in more than fifty years, on April 3rd, against a Colonial governor of India, and the member charged with heading the investigation was England’s famed supporter of American independence, Edmund Burke. What with one thing and another, impeachment came up in the Convention’s very first week.

A President is not a king his power would be checked by submitting himself to an election every four years, and by the separation of powers. But this did not provide “sufficient security,” James Madison said. “He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Also, voters might make a bad decision, and regret it, well in advance of the next election. “Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen,” the Virginia delegate George Mason said.

How impeachment actually worked would be hammered out through cases like the impeachment of Samuel Chase, a Supreme Court Justice, but, at the Constitutional Convention, nearly all discussion of impeachment concerned the Presidency. (“Vice President and all civil Officers” was added only at the very last minute.) A nation that had cast off a king refused to anoint another. “No point is of more importance than that the right of impeachment should continue,” Mason said. “Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?”

Most of the discussion involved the nature of the conduct for which a President could be impeached. Early on, the delegates had listed, as impeachable offenses, “mal-practice or neglect of duty,” a list that got longer before a committee narrowed it down to “Treason & bribery.” When Mason proposed adding “maladministration,” Madison objected, on the ground that maladministration could mean just about anything. And, as the Pennsylvania delegate Gouverneur Morris put it, it would not be unreasonable to suppose that “an election of every four years will prevent maladministration.” Mason therefore proposed substituting “other high crimes and misdemeanors against the State.”

The “high” in “high crimes and misdemeanors” has its origins in phrases that include the “certain high treasons and offenses and misprisons” invoked in the impeachment of the Duke of Suffolk, in 1450. Parliament was the “high court,” the men Parliament impeached were of the “highest rank” offenses that Parliament described as “high” were public offenses with consequences for the nation. The phrase “high crimes and misdemeanors” first appeared in an impeachment in 1642, and then regularly, as a catchall for all manner of egregious wrongs, abuses of authority, and crimes against the state.

In 1787, the delegates in Philadelphia narrowed their list down to “Treason & bribery, or other high crimes & misdemeanors against the United States.” In preparing the final draft of the Constitution, the Committee on Style deleted the phrase “against the United States,” presumably because it is implied.

“What, then, is an impeachable offense?” Gerald Ford, the Michigan Republican and House Minority Leader, asked in 1970. “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” That wasn’t an honest answer it was a depressingly cynical one. Ford had moved to impeach Supreme Court Justice William O. Douglas, accusing him of embracing a “hippie-yippie-style revolution,” indicting him for a decadent life style, and alleging financial improprieties, charges that appeared, to Ford’s critics, to fall well short of impeachable offenses. In 2017, Nancy Pelosi claimed that a President cannot be impeached who has not committed a crime (a position she would not likely take today). According to “Impeachment: A Citizen’s Guide,” by the legal scholar Cass Sunstein, who testified before Congress on the meaning of “high crimes and misdemeanors” during the impeachment of William Jefferson Clinton, both Ford and Pelosi were fundamentally wrong. “High crimes and misdemeanors” does have a meaning. An impeachable offense is an abuse of the power of the office that violates the public trust, runs counter to the national interest, and undermines the Republic. To believe that words are meaningless is to give up on truth. To believe that Presidents can do anything they like is to give up on self-government.

The U.S. Senate has held only eighteen impeachment trials in two hundred and thirty years, and only twice for a President. Because impeachment happens so infrequently, it’s hard to draw conclusions about what it does, or even how it works, and, on each occasion, people spend a lot of time fighting over the meaning of the words and the nature of the crimes. Every impeachment is a political experiment.

The ordeal of Samuel Chase is arguably the most significant but least studied impeachment in American history. The Chase impeachment was only the third ever attempted. In 1797, the House had impeached the Tennessee senator William Blount, who stood accused of scheming to conspire with the British and to enlist the Creek and Cherokee Nations to attack the Spanish, all with the design of increasing the value of his highly speculative purchase of Western lands. (“Whether the scheme was merely audacious or just plain crazy remains debatable,” Bowman writes, darkly foreshadowing more recent shenanigans, involving the possible acquisition of Greenland.) The case rested on a letter allegedly written by Blount, describing this plan after two senators said they recognized Blount’s handwriting, the Senate expelled him in a vote of 25–1, and he slinked off to Tennessee. The House had voted to impeach, but Blount’s lawyers argued that senators are not “civil officers,” and so can’t be impeached. (“#IMPEACHMITTROMNEY,” Trump tweeted recently. The Blount precedent went some way toward establishing that this is an impossibility.) The motion to dismiss was read aloud in the Senate by Jefferson, who was Vice-President at the time.

Samuel Chase’s troubles began when Congress passed the 1798 Sedition Act, aimed at suppressing Republican opposition to John Adams’s Federalist Administration. Chase, riding circuit (which Supreme Court Justices used to do), had presided over the most notorious persecutions of Republican printers on charges of sedition, including the conviction of the printer James Callender. The Sedition Act expired on March 3, 1801, the day before Jefferson’s Inauguration, but, through a series of midnight appointments, Adams had connived to insure that Jefferson inherited a Federalist Supreme Court. Chase had actively campaigned for Adams and spoke intemperately for the bench, denouncing Republicans. In an overheated charge to a grand jury in Baltimore, he attacked Republicanism, describing it as “mobocracy.” Jefferson set an impeachment in motion when he wrote to House Republicans, “Ought this sedition and official attack on the principles of our Constitution . . . go unpunished?”

If the proceedings against Blount tested whether senators could be impeached, the proceedings against Chase tested a new theory of executive power—that Supreme Court Justices serve at the pleasure of the President. This test came in the wake of Marbury v. Madison, in 1803, in which John Marshall’s Supreme Court exercised a prerogative not specified in the Constitution: the Court had declared an act of Congress unconstitutional. A Republican leader of the Senate told the Massachusetts senator John Quincy Adams that he hoped to impeach the entire court. Judicial independence? Judicial review? No. “If the Judges of the Supreme Court should dare, AS THEY HAD DONE, to declare an act of Congress unconstitutional . . . it was the undoubted right of the House of Representatives to remove them, for giving such opinions,” he said. “A removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation.”

John Randolph, a steadfast Republican but no lawyer, drafted the articles of impeachment against Chase, which broadly charged him with prostituting his high office to the low purpose of partisanship but, narrowly, rested on all manner of pettiness, including the charge that during Callender’s trial Chase had used “unusual, rude, and contemptuous expressions toward the prisoner’s counsel” and had engaged in “repeated and vexatious interruptions.” Notwithstanding the weakness of the charges, not to say their vexatiousness, the House voted to impeach. The trial in the Senate opened on February 4, 1805.

An impeachment trial is a medieval play, with its mummers and its costumes and its many-colored cloth-covered tables. Chase’s trial lasted a month. Burr ran a well-ordered court. He warned the senators not to eat apples and cake while in session. He censured them for leaving their seats. He hushed the spectators in the galleries.

The trial turned less on what Chase had done than on whether he could be impeached for having done those things. John Randolph, though, didn’t really have a theory of impeachment. He had a theory of vengeance. His arguments, a distressed John Quincy Adams wrote in his diary, consisted “altogether of the most hackneyed commonplaces of popular declamation, mingled up with panegyrics and invectives.” Randolph called eighteen witnesses, few of whom aided his case, and some of whom aided Chase’s. “Saw nothing that struck me as remarkable,” one witness, who had attended Callender’s trial, said. As an observer put it, “I swear if they go on much farther, they will prove Judge Chase an angel.”

Chase’s defense called thirty-one witnesses, including some of Randolph’s. Chase’s attorneys said the charges were plainly silly, and they didn’t much bother to refute them, especially since Randolph had done that job so well himself. Instead, they argued about the nature of impeachment. One of Chase’s younger lawyers, Joseph Hopkinson, insisted that “no judge can be impeached and removed from office for any act or offense for which he could not be indicted.” In other words, an impeachable offense has to be an indictable offense: a crime. “High crimes and misdemeanors,” Hopkinson argued, meant “high crimes” and “high misdemeanors.”

The trial reached its climax on February 23rd, when a red-faced Luther Martin rose from behind the defense’s table. He spoke for a day and a half, expounding on his own theory of impeachment. A judge could commit a crime, like hitting someone, for which he could not be impeached. He could even commit a high crime for which he could not be impeached. All that he could be impeached for were crimes “such as relate to his office, or which tend to cover the person, who committed them, with turpitude and infamy such as show there can be no dependence on that integrity and honor which will secure the performance of his official duties.” To be impeached, Martin said, a judge had to commit crimes that either derived from his judicial power or were so horrible, so grotesquely unethical, that they disqualified him from holding a position of public trust.

Republicans outnumbered Federalists in the Senate 25–9. On March 1st, for each article, Burr asked of each senator, “Is Samuel Chase, Esq., guilty or not guilty of a high crime or misdemeanor in the article of impeachment just read?” A majority voted guilty for three articles. None earned the required two-thirds super-majority. Six Republicans broke ranks on all eight articles. By a vote of 19–15, the Senate came closest to convicting Chase on the article regarding his partisan zeal in his charge to the Baltimore grand jury. Burr stood up. “It becomes my duty to pronounce that Samuel Chase, Esq., is acquitted,” he said. Then he bowed to Chase and left the chamber. As for Burr, he was never convicted of killing Alexander Hamilton. (Two years later, in an unrelated incident of amazing sneakiness, he was tried for treason, and acquitted.)

The acquittal of Samuel Chase established the independence of the judiciary. It also established another principle, as Bowman argues: “The price of the independence granted by life tenure is abstention from party politics.” It did not, however, establish a lasting theory of impeachment. Brandybottle Martin had stated his case beautifully, and easily defeated the hapless John Randolph, but Martin’s argument was wrong. Nothing in American history, from the founding of its earliest colonies, suggests that an impeachable offense has to be an indictable crime, not for the King’s men, not for judges and Justices, and not for the President of the United States. Presidents can be impeached for actions that are not crimes, not least because the criminal code was not written with Presidents in mind. Most of us cannot commit such staggering outrages as to direct the F.B.I. to spy on our enemies or enlist foreign powers to interfere in our elections. The President has powers that only a President can exercise, or abuse. Were these powers beyond the reach of the people’s power, impeachment would be a dead letter.

If the House votes to impeach Donald Trump, it is by no means clear that the Senate will hold a trial. And, if the Senate does hold a trial, the likelihood that it will convict is small. Impeachment is a tall and rickety ladder conviction is a tiny window, barely cracked open. It’s difficult and dangerous to climb the ladder, and no one who has made it to the top has ever managed to crawl in through the window.

After the acquittal of Samuel Chase, in 1805, the House, in the next decades, impeached two more judges, one in 1830 and one in 1862 the Senate acquitted the first and convicted the second. The first real attempt to impeach a President came in 1843, when a Virginia congressman accused John Tyler of “corruption, malconduct, high crimes and misdemeanors,” but the House voted down a motion to investigate, 127–83.

In 1868, “out of the midst of political gloom, impeachment, that dead corpse, rose up and walked forth again!” Mark Twain wrote. Republicans in the House impeached President Andrew Johnson by a vote of 126–47. They were desperate, as Brenda Wineapple chronicles in her gripping new book, “The Impeachers: The Trial of Andrew Johnson and the Dream of a Just Nation.” Johnson, a Tennessee Democrat who didn’t free his slaves until 1863, after the Emancipation Proclamation, had been Abraham Lincoln’s improbable Vice-President, and had assumed the office of the Presidency after his assassination, in 1865. Lincoln and congressional Republicans had one plan for Reconstruction: it involved welcoming the freedmen into the political community of the nation. Johnson, who believed that, “in the progress of nations, negroes have shown less capacity for government than any other race of people,” betrayed that vision. “Slavery is not abolished until the black man has the ballot,” Frederick Douglass declared. But granting the franchise to black men was the last thing Johnson intended to allow. While Congress was out of session, he set in motion a Reconstruction plan that was completely at variance with what Congress had proposed: he intended to return power to the very people who had waged war against the Union, and he readmitted the former Confederate states to the Union. “No power but Congress had any right to say whether ever or when they should be admitted to the Union as States and entitled to the privileges of the Constitution,” the Pennsylvania representative Thaddeus Stevens said during Johnson’s impeachment proceedings. (Stevens, ailing, had to be carried into the Capitol on a chair.) “And yet Andrew Johnson, with unblushing hardihood, undertook to rule them by his own power alone.” Johnson vetoed the 1866 Civil Rights Bill and nearly every other congressional attempt to reassert authority over the law of the United States. But the Republicans’ strategy, to pass a law they expected Johnson to break, so that they could impeach him, backfired.

“Sally, will you make me the happiest man in the world, and accept full responsibility if I should fail to be the happiest man in the world?”

The Senate acquitted Johnson, falling short by a single vote of the two-thirds majority necessary to convict. Stevens died a couple of months later, “the bravest old ironclad in the Capitol,” Twain wrote. The Republicans had tried to save the Republic by burying the Confederacy for good. They failed.

Every impeachment reinvents what impeachment is for, and what it means, a theory of government itself. Every impeachment also offers a chance to establish a new political settlement in an unruly nation. The impeachment of Samuel Chase steered the United States toward judicial independence, and an accommodation with a party system that had not been anticipated by the Framers. Chase’s acquittal stabilized the Republic and restored the balance of power between the executive and the judicial branches. The failed impeachment of Andrew Johnson steered the United States toward a regime of racial segregation: the era of Jim Crow, which would not be undone until the Civil Rights Act of 1964 and the Voting Rights Acts of 1965 were passed, a century later, in the Administration of another Johnson. Johnson’s acquittal undid the Union’s victory in the Civil War, allowed the Confederacy to win the peace, and nearly destroyed the Republic.

Johnson’s acquittal also elevated the Presidency by making impeachment seem doomed. Jefferson once lamented that impeachment had become a “mere scarecrow.” That’s how it worked for much of the twentieth century: propped up in a field, straw poking out from under its hat. A Republican congressman from Michigan called for the impeachment of F.D.R., after the President tried to pack the Court. Nothing but another scarecrow.

The impeachment of Richard Nixon, in 1974, which, although it never went to trial, succeeded in the sense that it drove Nixon from office, represented a use entirely consistent with the instrument’s medieval origins: it attempted to puncture the swollen power of the Presidency and to reassert the supremacy of the legislature. Nixon’s Presidency began to unravel only after the publication of the Pentagon Papers, in 1971—which indicted not Nixon but Lyndon Johnson, for deceiving the public about Vietnam—and the public anger that made impeachment possible had to do not only with Nixon’s lies and abuses of power but also with Johnson’s. But a new settlement, curtailing the powers of the President, never came. Instead, the nation became divided, and those divisions widened.

The wider those divisions, the duller the blade of impeachment. Only very rarely in American history has one party held more than two-thirds of the seats in the Senate (it hasn’t happened since 1967), and the more partisan American politics the less likely it is that sixty-seven senators can be rounded up to convict anyone, of anything. And yet the wider those divisions the more willing Congress has been to call for impeachment. Since Ronald Reagan’s Inauguration in 1981, members of the House have introduced resolutions for impeachment during every Presidency. And the people, too, have clamored. “Impeach Bush,” the yard signs read. “Impeach Obama.”

Not every impeachment brings about a political settlement, good or bad. The failed impeachment of Bill Clinton, in 1999, for lying about his sexual relationship with Monica Lewinsky, settled less than nothing, except that it weakened Americans’ faith in impeachment as anything other than a crudely wrought partisan hatchet, a prisoner’s shiv.

Clinton’s impeachment had one more consequence: it got Donald Trump, self-professed playboy, onto national television, as an authority on the sex lives of ego-mad men. “Paula Jones is a loser,” Trump said on CNBC. “It’s a terrible embarrassment.” Also, “I think his lawyers . . . did a terrible job,” Trump said. “I’m not even sure that he shouldn’t have just gone in and taken the Fifth Amendment.” Because why, after all, should any man have to answer for anything?

“Heaven forbid we should see another impeachment!” an exhausted Republican said at the end of the trial of Samuel Chase. The impeachment of an American President is certain to lead to no end of political mischief and almost certain to fail. Still, worse could happen. Heaven forbid this Republic should become one man’s kingdom. ♦


Trump defiant after impeachment acquittal as Biden reflects on 'sad chapter' in US history

In a typically bold statement, Mr Trump hints he could be back in the political spotlight to "make America great again".

Sunday 14 February 2021 08:24, UK

Former US president Donald Trump has been found not guilty in his impeachment trial.

Although the final vote came in as 57 "guilty" and 43 "not guilty", the Democrats did not reach the two-thirds majority they needed to secure a conviction.

The path is now clear for Trump to run for president again. will he?

Seven members of Mr Trump's own party (Senators Sasse, Romney, Burr, Collins, Murkowski, Toomey and Cassidy) joined Democrats on the charge of incitement.

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In a statement after the trial, Mr Trump said it was "a sad commentary on our times" that the Democrats had been given a "free pass to transform justice into a tool of political vengeance, and persecute, blacklist, cancel and suppress all people and viewpoints with whom or which they disagree".

He added: "I always have, and always will, be a champion for the unwavering rule of law, the heroes of law enforcement, and the right of Americans to peacefully and honourably debate the issues of the day without malice and without hate.

Three things that make the verdict crucial to all of us

"No president has ever gone through anything like it, and it continues because our opponents cannot forget the almost 75 million people, the highest number ever for a sitting president, who voted for us just a few short months ago."

US President Joe Biden said the acquittal was a reminder that democracy was "fragile", and every American had a duty to defend the truth.

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"While the final vote did not lead to a conviction, the substance of the charge is not in dispute," he said in a statement.

"Even those opposed to the conviction, like Senate Minority Leader McConnell, believe Donald Trump was guilty of a 'disgraceful dereliction of duty' and 'practically and morally responsible for provoking' the violence unleashed on the Capitol.

"This sad chapter in our history has reminded us that democracy is fragile. That it must always be defended. That we must be ever vigilant. That violence and extremism has no place in America. And that each of us has a duty and responsibility as Americans, and especially as leaders, to defend the truth and to defeat the lies."

Mr Trump had been charged with "incitement of insurrection" over last month's violence when the US Capitol was stormed by his supporters, just as Congress was attempting to ratify the 2020 election result.

Just before the 6 January riots, thousands of his supporters gathered at a "Save America" rally on the National Mall, minutes away from the Capitol.

It had been organised to challenge the election result and Mr Biden's win.

Mr Trump's supporters listened to him speak for 70 minutes, during which at one point the former reality star exhorted them to "fight like hell - or you're not going to have a country anymore".

The attack began moments after he took the applause.

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At the impeachment hearing, Mr Trump's defence team had launched a blistering attack on the Democrats, describing proceedings as a "unjust, unconstitutional witch-hunt".

Michael van der Veen, Mr Trump's lawyer, said: "This whole spectacle has been nothing but the unhinged pursuit of a long-standing political vendetta against Mr Trump by the opposition party."

He told the hearing Mr Trump was not to blame and that he had told his supporters to protest peacefully.

It was argued that his speech at the rally was "ordinary political rhetoric" and was constitutionally protected free speech.

Washington's most powerful Republican, senate minority leader Mitch McConnell, dealt a blow to an ebullient Mr Trump by saying he believed he was "morally responsible" for the Capitol attack, and said he only voted to acquit him because he believed the senate had no jurisdiction over a former president.

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It is the first time in history that a US president has been impeached twice.

The first attempt to convict Mr Trump in January 2020, for abuse of power and obstruction of Congress, saw him acquitted by a majority of 52 votes to 48 for one charge and 53 to 47 for the second.

Only one Republican voted against him on one of the charges.

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In his defiant statement after the conclusion of Saturday's vote, Mr Trump hinted he may return to the political spotlight.

He said: "Our historic, patriotic and beautiful movement to Make America Great Again has only just begun.

"In the months ahead I have much to share with you, and I look forward to continuing our incredible journey together to achieve American greatness for all of our people.


For Further Reading

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. (New Haven and London: Yale University Press, 1937).

Kyvig, David E. The Age of Impeachment: American Constitutional Culture Since 1960. (Lawrence, Kansas: University Press of Kansas, 2008).

Les Benedict, Michael. The Impeachment and Trial of Andrew Johnson. (New York: W.W. Norton & Company, 1999).

Madison, James, Alexander Hamilton, John Jay. The Federalist Papers. (New York: Penguin Books, 1987).

Melton, Buckner F., Jr. The First Impeachment: The Constitution’s Framers and the Case of Senator William Blount. (Macon, Georgia: Mercer University Press, 1998).

Rehnquist, William H. Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. (New York: Harper Perennial, 1999).

“Report by the Staff of the Impeachment Inquiry on the Constitutional Grounds for Presidential Impeachment,” Committee Print, Committee on the Judiciary, U.S. House of Representatives, 93rd Cong., 2nd sess., February 1974.

Storing, Herbert J., ed. The Complete Anti-Federalist. 7 vols. (Chicago: University of Chicago Press, 1981).

Sullivan, John. “Chapter 27—Impeachment,” in House Practice: A Guide to the Rules, Precedents, and Procedures of the House. (Washington, D.C.: Government Printing Office, 2011).

Thomas, David Y. “The Law of Impeachment in the United States,” The American Political Science Review 2 (May 1908): 378–395.