Updated 19 Nov 2019: All mentions of the Trump impeachment are removed so that all can read the article with a sharper critical thinking mind.
Are you curious about what the Federalist Papers say about impeachment? This article gives you a two minute review of our constitution and impeachment, then dives into the Federalist Papers. Although the Federal impeachment process applies to federal officials, the focus of this article is on impeaching a president. State impeachments are similar but carried out at the state-level.
This article avoids Trump on purpose. Political positions do evolve over time when presented with a better argument, but one has to be ready to hear the better argument. In general, people are most partisan when closest to historical events and that makes critical thinking more difficult. This article was written during the Trump administration and the original version of this article discussed Trump, the NRA, and Republicans and was unduly harder for Trump supporters to read than it needed to be.
I’m open to new arguments too. If I have presented an invalid argument or viewpoint, and you have a valid argument for me to consider, post it below. If you present a compelling valid argument, I will update this article based upon it.
The Constitution and Impeachment
The Constitution defines the impeachment process as a political process and specifically limits punishment to removal from office. Because impeachment is a political process, its rules and processes are guided most by tradition, but the Constitution does give some guidance. The Constitution gives the power of impeachment to the House. Specifically, the indictment process to the House of Representatives and the trial process to the Senate.
Impeachment Inquiry and Indictment
Article 1 gives the power to impeach to the House of Representatives.
Article 1, Section 2: “The House of Representatives shall…have the sole Power of Impeachment.”
The power to impeach is akin to an indictment in a criminal trial, but impeachments are not criminal indictments, they are political by intent. Impeachment by the House of Representatives brings no formal punishment — only the informal punishment of humiliation. Just as it is embarrassing to be indicted for a crime, it is embarrassing to be impeached by the House. If one is impeached by the House, they are not removed from office, but they are turned over to the Senate for trial with Articles of Impeachment — a political indictment.
Article 1 also gives the power to convict and punish to the Senate.
Article 1, Section 3: “The Senate shall have the sole Power to try all Impeachments. …When the President of the United States is tried, the Chief Justice shall preside…
Judgment in Cases of Impeachment shall not extend further than to removal from Office…but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The Senate trial is a political prosecution, and not a criminal trial. The Chief Justice presides over the trial and the rules vary from one impeachment trial to the next, guided mainly by tradition and current political winds.
Article 1 also indicates that the punishment the Senate can impose is limited to removal from office:
“…shall not extend further than to removal from Office…”
The Constitution limits a conviction in the Senate to removal from office. It is possible that a President could be convicted in the Senate and not removed because the Constitution says it “shall not extend further”. Meaning, punishment can be up to removal from office. It is possible that a Senate trial could lead to conviction and a lesser punishment like a public reprimand, a censure.
The Constitution also specifically defines that impeachment does not remove criminal liability.
“…the Party convicted shall … be liable … to Law.”
Impeachment is a political process run by politicians and it has no effect on criminal liability. Even if one is convicted by the Senate, that person can still be indicted and tried by the Department of Justice (DOJ). In fact, the DOJ could indict and try before, during, or after an impeachment process.
Five Presidents Have Faced Impeachment
The five Presidents that have faced impeachment are James Buchanan, Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump. No president has been removed from office by the impeachment process. Both President Johnson and President Clinton were impeached, indicted by the House of Representatives. Both were acquitted and stayed in office — the equivalent of a not-guilty decision in a criminal trial. Richard Nixon resigned after the House Judiciary Committee voted three articles of impeachment to the House floor, but before a full vote. James Buchanan is not relevant because the House Select Committee started an impeachment inquiry, but found no grounds for impeachment. This is akin to a criminal investigation that ends with no indictment.
Pardon Power and Impeachment
Article 2 gives the President the authority to pardon people for specific federal crimes they have committed. The “offenses against the United States” phrase refers to federal crimes and does not apply to state crimes nor civil actions.
Article 2, Section 2: “The President…shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
A President cannot pardon himself for the impeachment process in the House of Representatives and Senate because that is a political process and not a matter of law. However, it’s an open question if he can pre-pardon himself for indictment by the DOJ.
Finally, Article 2 adds the following specific examples, but does not say impeachment is limited to these offenses. The common understanding is that impeachment is a political remedy to remove an unfit person from office for any reason. After impeachment and removal from office, the judicial branch is free to prosecute any crimes, if any.
Article 2, 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 unclear if the justice department can indict a sitting President.
The Federalist Papers
The Federalist Papers was propaganda written by 3 founding fathers: Alexander Hamilton, James Madison, and John Jay. The goal of the Federalist Papers was to persuade the most resistant among the citizens to support the constitution. They were used during the first few years of our country starting in 1788. The Constitution was ratified the next year. The Federalist Essays are not legal documents, but can be used to backup and bolster the meaning behind the words in the constitution as well as explain details not directly in the constitution.
I skipped over the basic justification sections as that’s settled at this point and the fundamentals are clear. Instead, I focused on the following questions:
- Did the founding fathers consider character as a reason to impeach?
- Is bad behavior a reason to impeach?
- Is corruption such as the emoluments clause impeachable?
Essay 39: James Madison
In essay 39, Madison gives his analysis of the government’s national and federal characteristics. He argues that the Constitution is neither a national nor a federal constitution, but rather a composition of both.
A President should be impeached for bad behavior.
In essay 39, Madison argues that the President is impeachable for bad behaviour.
“The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places is, as it unquestionably ought to be, that of good behavior.”
Essay 64: John Jay
In essay 64, Jay argues in defense of the Senate’s participation in the treaty-making process. He assumes only wise and upright men will be President or a senator. I think it’s obvious that he would be disappointed with any politician that tries to go around this process.
Jay argues that corruption is so gross, it’s hard to even consider a case. In that case, the contracts would be voided. Meaning, any agreements a President makes out of corrupt intent should be voided by Congress as soon as possible. I think a fair interpretation of these harsh words is that the Congress should review, debate, and either alter or rollback any corrupt legislation.
“As to corruption, the case is not supposable. He must either have been very unfortunate…or possess a heart very susceptible of such impressions, who can think it probable that the President…be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the laws of nations.
Should a president be impeached because of his character?
Jay also argues that a President should be impeached for questionable character and acts. He argues that should never happen. But, if it does, the President should be impeached immediately.
“With respect to their responsibility… Every consideration that can influence the human mind, such as honor, oaths, reputations, conscience… In short, …the Constitution has taken the utmost care that they shall be men of talents, and integrity… and so far as the fear of punishment and disgrace can operate, that motive to good behavior is amply afforded by the article on the subject of impeachments.”
Essay 65: Alexander Hamilton
In essay 65, Hamilton correctly predicts that impeachments are political, partisan, and could be abused by the party in power.
“…The subjects of its jurisdiction [impeachments] are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They…may…be…political, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them…will seldom fail to agitate the passions of the whole community, and to divide it into parties…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.”
In the same essay, Hamilton states that cunning partisan politicians will be tempted to abuse the impeachment power.
“The difficulty of placing it [impeachment] rightly in a government … of periodical elections will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.”
“The convention…thought the Senate the most fit depositary of this important trust. …will be the least hasty…and will be most inclined to allow due weight to the arguments…”
“What…is the true spirit of the institution [of impeachment] itself? Is it not designed as a method of national inquest into the conduct of public men?…”
Essay 69: Alexander Hamilton
In essay 69, Hamilton compares the Presidency to the kings and such to expound the character of the Presidency. He argues that the President cannot pardon crimes related to impeachment. The constitution reflects this sentiment.
“The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States… He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment;“
Supreme Court Rulings
The U.S. Supreme Court has interpreted this language to include the power to grant pardons, conditional pardons, commutations of sentence, conditional commutations of sentence, remissions of fines and forfeitures, respites, and amnesty.
Is someone pardoned still guilty?
Yes. The Supreme Court stated in Burdick v. United States that a pardon carries an imputation of guilt, and acceptance of a pardon is a confession to such guilt. A pardon does not overturn a conviction, it is a form of mercy for the guilty.
In Associate Justice Joseph McKenna majority opinion in the case Burdick v. United States, a pardon
“carries an imputation of guilt; acceptance a confession of it.”
Can a President pardon someone before a conviction?
I think the short answer is yes, but that the Supreme Court can step in and interpret the Constitution to close this loophole. Either way, the person pardoned is admitting guilt and Presidential mercy by accepting the pardon. For example, President Ford used the pardon power to pardon Nixon prior to conviction. By accepting the pardon, Nixon was guilty of everything he was pardoned for and he accepted the “mercy” from any penalty by President Ford.
“The Supreme Court never has been called upon to judge the validity of an open pardon like the Nixon pardon. If it must do so in the future and if it continues to view Article II, section 2 in light of the meaning the framers intended it to have, the evidence raises a reasonable doubt of the constitutionality of the Nixon pardon.” — William F. Duker, 1976. From The President’s Power to Pardon: A Constitutional History.
Although tradition dictates that pardons are granted after a guilty plea or conviction, many believe there are few limitations for the President to grant a pardon for criminal behavior for past crimes. Their belief includes the ability to pardon prior to a DOJ indictment. And, in fact, presidents have done this several times.
Can a president pardon for future crimes?
No. If he could, that would mean the president had the ability to waive laws for specific individuals.
Does a pardon protect one from a future conviction?
Yes. But only for the specific past crimes specified in the pardon and only at the Federal level. Meaning, if one is pardoned for a conviction of stabbing their mother, if they stab their mother again, that’s a separate specific crime and they can be charged again for stabbing their mother. In addition, if one was put under oath, they would have to tell the truth, the whole truth, and nothing but the truth with regard to the past crime of stabbing their mother; otherwise, they could be charged with perjury.
In addition, if one is convicted and pardoned for federal tax evasion, a state could still charge one for state tax evasion. Furthermore, the state tax evasion may be part of the federal tax evasion charge, but could still be prosecuted at the state level for state crimes. Why and how? Federal and state laws are separate laws and their jurisdictions are limited to federal and state courts respectively.
What is the general position of the DOJ regarding pardons?
The Department of Justice requires that anyone requesting a pardon wait five years after conviction or release prior to receiving a pardon. The constitutionality of open pardons, such as Ford’s pardon of Nixon, has never been judicially tested in the Supreme Court and is an open question.
Can a President pardon someone prior to their impeachment by the House of Representatives?
No. The Constitution clearly says the criminal pardon power does not apply to the political impeachment power.
Can a President pardon his or her kids and others for the crimes that are part of the charges of impeachment?
Short answer: Yes, but only for Federal crimes and acceptance of a pardon for specific crimes is an admission of guilt. Furthermore, anyone given a pardon can still be prosecuted for future crimes and must tell the truth, the whole truth, and nothing but the truth regarding all pardoned crimes when testifying under oath.
Can one refuse a pardon?
SCOTUS ruled in United States v. Wilson in 1833 that a pardon can be rejected by the convict.
In Burdick v. United States in 1915, SCOTUS specifically said:
“Circumstances may be made to bring innocence under the penalties of the law. If so brought, escape by confession of guilt implied in the acceptance of a pardon may be rejected, preferring to be the victim of the law rather than its acknowledged transgressor, preferring death even to such certain infamy.”
It is interesting to contrast this with commutations which are a reduction in prison sentence. Unlike pardons, commutations may not be refused. In Biddle v. Perovich 274 U.S. 480 in 1927, the subject of the commutation did not want to accept life in prison but wanted the death penalty restored. The Supreme Court said,
“[A] pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”
Can courts compel someone pardoned to testify about the crimes?
Yes. If there is no prospect of criminal liability, then the 5th Amendment privilege against self-incrimination also disappears. This is true whether one is granted adequate immunity by prosecutors, or because of the acceptance of a presidential pardon.
In 1895, SCOTUS ruled in Brown v. Walker:
“[I]f the witness has already received a pardon, he cannot longer set up his privilege, since he stands with respect to such offence as if it had never been committed.”
Can the Senate put an impeachment to a public vote?
I think the answer is yes. The Senate holds the sole power for trials of all Federal-level impeachments and they can exercise that power in any constitutional way. Meaning, although we live in a Representative Democracy, we also have mechanisms to put specific things to a specific public vote. I think the driving force behind the way our Founding Fathers setup our Democracy is that citizens do not have time to make every decision, so we use representatives, but, at times, those representatives can put specific issues up for a public vote.
I doubt it will ever happen because it would be too politically damaging. Meaning the senators would be criticized for dodging their representative responsibilities, but who knows?
This article was just an introduction to the mindset of our Founding Fathers. For more, read the Federalist Papers and the Anti-Federalist Papers which contain interesting background information. Finally, if you’re in a historical mood, consider reading the notes from our Constitutional Conventions which contain the thoughts of the citizens of the time.