Of all our sources for understanding how the Constitution’s framers thought about impeachment, none is more important than Nos. 65 and 66 of The Federalist Papers. Scattered other framerly remarks on the topic exist, and one should examine the framers’ influences and historical context, but The Federalist contains our only sustained commentary on the impeachment process from one of America’s founding constitutional and juridical thinkers.
Unfortunately, when seen in the light of Alexander Hamilton’s words, the recent conduct of many Republican senators looks indefensible.
If there is a defense, it’s that a view of impeachment that cannot withstand contact with Hamilton’s reasoning has become widespread. It goes like this: The Framers set a high bar for conviction — two-thirds of the Senate — so that officials could not be removed and/or disqualified from office unless an overwhelming public consensus supported such an outcome. Since the Senate will not convict unless backed up by such a consensus, it is in certain ways wrong — a distracting waste of time, an expression of disregard for the public — for the House to impeach when there is no such consensus. One should really think of impeachment and conviction as a hyphenated concept, impeachment-and-conviction, since the whole shebang is, in the end, a way of capturing the consensus. Because impeachment-and-conviction is a political process, it is not always good to impeach-and-convict officials whose conduct merits impeachment-and-conviction; the desirability of impeachment-and-conviction will depend on the constraints and desiderata of the total political moment. We can only expect that all of our normal politics will weigh on the scales of judgment (so that, for example, senators will take into account the consequences for their party of, or the public reaction in general to, a conviction). We also can only expect full deployment of the usual tactics of politics, including mass-media special pleading by members of Congress and any available procedural tricks.
I’ll call this the popular model of impeachment-and-conviction. Not a bit of it can be reconciled with Hamilton.
Federalist 65 expressly contradicts the assumption from which it all flows: that impeachment and conviction are both expressions of the public will. Impeachment is, yes; but conviction, no. “Where else than in the Senate,” Hamilton writes, “could have been found a tribunal sufficiently dignified, or sufficiently independent,” to try impeachments? “What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?” Just before this Hamilton calls impeachment “a method of national inquest into the conduct of public men” and says that the “representatives of the nation” — that is, the House — are the “inquisitors for the nation.”
So we’ll have to throw out the hyphens. What Hamilton presents here is a popular model of impeachment and an impartial model of trial. The Senate is not to reduplicate the House’s representation of the people; rather it is to stand in impartial judgment between accuser (the people via the House) and accused (the impeached individual).
We’ll also have to conclude that the Senate, when acting as a court of impeachments, may not concern itself in any degree with public opinion — since such concern, in any degree, would violate the stipulated impartiality. This conclusion gains additional support from the contrast Hamilton expressly draws between factional influence and public passion, which are to be avoided, and demonstration of innocence or guilt, which is to be sought:
The prosecution [of impeachments] 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 many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Hamilton also expressly acknowledges that the Senate and the public might come to opposed judgments: In explaining why the Supreme Court should not be a court of impeachments, he doubts whether it will “possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives.” So he can’t consider it wrong for the House to impeach when conviction isn’t assured. (Really, how could he, given that impeachment requires only a majority while conviction requires two-thirds? If the goal had been to make sure that impeachments were as likely as possible to yield convictions, the requirements would match.) And he can’t consider it wrong for the Senate to convict when something less than an overwhelming consensus of the public — something corresponding to two-thirds of the Senate — favors conviction. Such a conviction would actually be consistent with the people’s will as Hamilton understands it to be expressed, by a simple majority of the impeaching House. The two-thirds requirement for conviction is rather a way of securing a fair judgment of the accused, as Hamilton notes in Federalist 66: “As the concurrence of two thirds of the Senate will be requisite to a condemnation, the security to innocence . . . will be as complete as itself can desire.”
It is highly significant that Hamilton’s discussion of the Senate’s role is cast in judicial language — the impeachment is a “prosecution,” the senators are “jurors,” the Senate is a “court,” it will “acquit” or “convict,” it stands between “accuser” and “accused.” An impeachment trial is of course not a courtroom trial, and the Senate shapes its proceedings as normal courtroom jurors cannot shape a trial — the senators decide how long the trial lasts, whether to call witnesses, etc. In effect, they act as both judge and jury. But there is a clear analogy with conventional courts of law, which is that both normal jurors and senatorial juror-judges are to render impartial judgment.
True, Hamilton says that impeachable offenses are “of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” But that doesn’t mean the Senate’s judgment of political accusations may itself be political, as if the whole process were some political ouroboros with a suppressible appetite for “real demonstrations.” The only proper questions for the Senate to ask are Did the accused do what the article of impeachment says he did? and Does that kind of deed, in its kind of context, present a political crime that warrants removal and/or disqualification? If so and if so, the Senate convicts the individual in his instance. If necessary, it then works to reconcile the people to its judgment. What it does not do is preemptively reconcile its judgment to the people, for then the judgment is not impartial.
If we take Hamilton seriously about all this, even what might be called “non-factional politics” — e.g., worries about stoking division or inflaming the public — are improper at the trial stage, because these are not real demonstrations of guilt or innocence. Rather the House will have weighed such factors in its decision, as representatives of the people, to impeach.
And it should go without saying that any self-interested or factional calculations of the senators — including concern for the future of their political parties — must be given no weight at all. This would be as if a jury declined to convict a mob boss because it feared reprisals from his goons.
Finally, just as a law court would not decline to hold a trial for fear of public reaction, it is completely improper for the Senate to pocket an impeachment. Yes, there is debate about whether it is constitutional to impeach and try a former president, and I’ll come back to that. My point here is that Hamilton’s language cannot be reconciled with the idea that the Senate may refuse to judge an accusation it does have authority to judge simply because it feels that not judging will, in some vague overall political sense, be best. The people having alleged a political crime, it would be a dereliction for the Senate not to render impartial judgment.
And so: alas. Held up against the high standard of The Federalist Papers, the Senate right now looks like an effing joke. Or to put it less charitably, like a body possessed by “the demon of faction” — the very thing Hamilton is so anxious to avoid.
From the Hamiltonian perspective it is, to say the least, unseemly for a senator to state his or her view of Trump’s guilt or innocence before hearing the evidence at trial. No impartial juror would ever do such a thing, yet it is something we see senators of both parties doing now.
What Hamilton would find simply grotesque, I believe, is the conduct of some Republicans.
It is simply grotesque for Marco Rubio to appear on a Sunday news show, call the idea of holding a trial “stupid,” and pledge to try to end the trial as soon as he can. It is simply grotesque for Lindsey Graham to continue his special “journey” with Trump by lobbying his Senate colleagues, in advance of the trial, against conviction. It is simply grotesque for Rand Paul, interviewed by one of the Fox opinion demagogues, to leave no doubt that the future of the Republican Party is his chief concern.
Ah, but Paul also said the trial would be unconstitutional — and if it is, why shouldn’t he look to the future of his party?
Yes. He did say that. He merely said it. And the “mereness” of that and similar senatorial assertions — combined with Paul and other senators’ factional quest to thwart the trial — is the most grotesque thing of all.
It would be one thing for senators who had sincere doubts about the constitutionality of late impeachments to present a thorough and duly deliberated account of their thoughts — hearing, in public, expert testimony on both sides of the question; publicly and sufficiently debating arguments and counter-arguments; explaining which arguments they found to have greater merit, and why, or at least indicating someone whose explanation among the explanations they endorsed. A transparent and intellectually honest debate of that sort would make it believable that constitutional scruples rather than factional interests were what anchored the wish to dismiss. Such a debate would also help the Senate reconcile the people, who through their representatives have made an accusation, to the dismissal of that accusation.
The most reasoned explanation I have read is Mike Lee’s, which asserts judgments in various categories of evaluation but is still inadequate because no reasons for the judgments are given. What Paul and many others have offered — when not mere assertion — is best described as fallacious color commentary: as when Paul claimed that Chief Justice John Roberts’s decision not to preside over the trial was “a huge, huge signal that there’s something wrong with this proceeding.” The claim is obviously question-begging, since Roberts might also think that the Constitution allows former presidents to be tried but requires the chief justice to preside only when current presidents are. Since the claim is question-begging, it is also argumentatively worthless. But argument seems never to have been the point. Rather the point seems to have been an anti-impeachment and then anti-conviction PR campaign, culminating in a stunt procedural vote designed to make acquittal look inevitable before the trial could even begin.
Ah, but the House’s impeachment was itself a political stunt — done in a day, no witnesses called, etc. Well, let’s concede that — the old tu quoque — for the sake of argument. Replies Hamilton: So what? The House, replies Hamilton, is the accuser. The accuser, replies Hamilton, by definition is not impartial. The Senate, replies Hamilton, was supposed to be. But it wasn’t.
Perhaps it was inevitable that matters would come to this. That mass media and social media, combined with the advent of political parties and the democratic nature of the modern Senate, would render impeachment trials political in the widest and lowest sense, no more than shows in which senators become “tools of the most cunning or the most numerous faction” (No. 65). That much of the commentariat, inured to this fallen way of things, would see the question whether conviction is probable as more important than the question whether it is merited. That sooner or later a gifted demagogue, manipulating the public and through it his party by means of a politics purified of truth, would attain the White House and, just by being himself, render the Senate even less capable of impartially judging his conduct.
But, however improbably, the Senate can still correct course. A million mistaken headlines notwithstanding, the Senate did not hold a vote on whether trying Trump is constitutional. It held a vote on whether to table a point of order objecting to the trial’s constitutionality. The distinction sounds trivial but means that the constitutional question was never reached, and that no senator is committed by vote to an answer. Senators remain free to examine and debate the constitutional arguments — to really examine, really debate, not just pretend to. If they believe that the Constitution permits a trial, they may still approach their duty as jurors with all due sobriety — not rushing, not declining to call witnesses, really seeking the truth and not just pretending to. One assumes a few copies of The Federalist Papers can still be found in the Senate office buildings. Nos. 65 and 66 are not long; an hour would suffice to read them as they should be read, very slowly, with frequent pause to think.
I don’t expect it. But it’s possible. Nothing but itself stops the Senate from becoming the dignified thing it was meant to be and ceasing to be the contemptible thing it has become.