{"id":7652,"date":"2020-01-29T23:32:59","date_gmt":"2020-01-30T04:32:59","guid":{"rendered":"https:\/\/www.statutesandstories.com\/blog_html\/?p=7652"},"modified":"2020-01-30T18:20:00","modified_gmt":"2020-01-30T23:20:00","slug":"the-founders-and-impeachment","status":"publish","type":"post","link":"https:\/\/www.statutesandstories.com\/blog_html\/the-founders-and-impeachment\/","title":{"rendered":"The Founders and Impeachment"},"content":{"rendered":"

The Founders and the Impeachment Trial of President Donald J. Trump<\/strong><\/span><\/p>\n

Part I \u2013 Overview and House Trial Brief<\/strong><\/span><\/p>\n\n\n

The framers of the Constitution figure prominently in the\nimpeachment trial of President Donald J. Trump. Given the limited number of precedents\nfor presidential impeachment in American history, the intent of the founders is\ncertainly relevant to both the prosecution and defense. The phrase \u201chigh Crimes\nand Misdemeanors\u201d is not defined in Section 4 of Article II of the\nConstitution. It is thus only natural to look to the notes of the Constitutional\nConvention in 1787, along with the state ratification debates, and The<\/em> Federalist Papers<\/em>, which are widely\nregarded as providing the best evidence of the founding father\u2019s intent.<\/p>\n\n\n\n

This post will discuss the multiple references to the\nfounding fathers in the trial briefs submitted to the Senate. This post will\nalso discuss the controversy over a particular letter Hamilton wrote to George\nWashington in 1792, which has been repeatedly invoked during the trial along\nwith Federalist<\/em> No. 65.<\/p>\n\n\n\n

Overview of Senate Trial Briefs<\/em><\/p>\n\n\n\n

At least ten members of the founding generation are cited in\ntrial briefs submitted by the House Managers and the President\u2019s lawyers.  Not surprisingly, citations to Alexander\nHamilton and James Madison outpace the other founders, as they were principle\ndrafters of The Federalist Papers<\/em>.\nMoreover, James Madison, George Mason and Gouverneur Morris are cited for their\ncentral roles in the drafting of the phrase, \u201cTreason, Bribery and other high\nCrimes and Misdemeanors.\u201d <\/p>\n\n\n\n

The House Managers\u2019 Trial Brief cites to Alexander Hamilton\nnine times. The President\u2019s Trial Brief cites to Hamilton twenty-four times. Even\nthough Hamilton did not draft the impeachment clause, there is bi-partisan\nagreement that Hamilton\u2019s opinions bear on this subject. Some might find it\nsurprising that Hamilton was cited more times by the President\u2019s team than by\nthe House Democrats. With that said, the President\u2019s legal brief is\nsubstantially longer (109 pages excluding appendices) compared to the House\nBrief (61 pages). <\/p>\n\n\n\n

In addition to multiple citations to Hamilton (cited a combined total of 33 times), Madison (cited 21 times) and The Federalist Papers<\/em>, eight additional founders make appearances in the trial briefs, including: George Mason, Gouverneur Morris, Edmond Randolph, James Iredell, George Washington, Ben Franklin, Thomas Jefferson, and John Adams. <\/p>\n\n\n\n

During the Senate Trial, it was observed that Alexander Hamilton was mentioned at least 48 times, Madison approximately 35 times, with Washington, Adams, Jefferson and Franklin receiving less love.<\/p>\n\n\n\n

Hamilton in the Spotlight<\/em><\/p>\n\n\n\n

Alexander Hamilton and James Madison were the principal drafters of The<\/em> Federalist Papers<\/em>, eighty-five essays written between October of 1787 and August of 1788 to help convince the \u201cPeople of New York\u201d to ratify the U.S. Constitution. The Federalist Papers<\/em> were written anonymously under the pseudonym Publius. A closely guarded secret, Publius\u2019 identity did not become public until Hamilton’s death in 1804. Today scholars agree that Hamilton wrote 51 of The<\/em> Federalist<\/em> essays, Madison wrote 29, and John Jay, who became ill, only wrote 5 essays.<\/p>\n\n\n\n

\"\"
Alexander Hamilton<\/figcaption><\/figure><\/div>\n\n\n\n

Before delving into the arguments made to the Senate, it is\nuseful to start with the very first Federalist<\/em>\nessay. Although it was not cited by the litigants the Trump Senate trial, Federalist No. 1<\/em> provides a \u201cgeneral\nintroduction\u201d for the \u201cseries of papers\u201d that followed in the 84 subsequent Federalist <\/em>essays. In this introductory\nessay, Hamilton observed that \u201cwise and good\u201d people can disagree even on\nquestions of \u201cthe first magnitude to society.\u201d This fact, Hamilton argued,\nshould \u201cfurnish a lesson in moderation\u201d to us all. <\/p>\n\n\n\n

Citing Hamilton, Justice Neil Gorsuch makes this exact point in his recent book, A Republic If You Can Keep It<\/em>. The title of Justice Gorsuch\u2019s book is taken from a famous quote attributed to Benjamin Franklin at the close of the Constitutional Convention. As curious Americans waited on the steps of Independence Hall, Franklin was asked, \u201cWhat do we have, a republic or a monarchy?\u201d According to the oft repeated anecdote, Franklin replied, \u201cA republic, if you can keep it. Our responsibility is to keep it.\u201d <\/p>\n\n\n

In Federalist No. 1<\/em>, Hamilton explained the importance of ratifying the proposed constitution, which was drafted behind closed doors in Philadelphia. According to Hamilton, the consequences were \u201cnothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.\u201d Click here for a link to Federalist<\/a><\/em> No. 1<\/a><\/strong>.<\/a><\/span><\/p>\n\n\n

In a famous passage in his first Federalist<\/em> essay, Hamilton asked the following question: <\/p>\n\n\n

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.<\/p>\n\n\n

Alexander Hamilton is widely acknowledged as a pivotal\nfigure in President Washington\u2019s first cabinet. He was also one of the most\nvocal proponents of the Constitution. Hamilton thus provides fertile material\nfor historians, lawyers and judges to survey the founder\u2019s thinking. It also\nhelps that Hamilton was arguably the most prolific and productive writers of\nhis day. According to historian Ron Chernow, Hamilton was the \u201cforemost\npolitical pamphleteer in American history.\u201d<\/p>\n\n\n\n

Riding the storm and directing\nthe whirlwind<\/em><\/p>\n\n\n\n

The above passages from Federalist No. 1<\/em> above were not cited by the Senate trial briefs. Representative Adam B. Schiff\u2019s Opening Statement began by quoting a letter written by Hamilton to Washington in 1792, several years after the Constitution was written. In dramatic warning to President Washington, Alexander Hamilton discussed the unlikely, but nonetheless possible danger of \u201cpopular demagogues\u201d subverting the Constitution to pursue their personal gain.<\/p>\n\n\n

In a letter marked \u201cPrivate and Confidential,\u201d Washington had asked Hamilton to address twenty-one criticisms that Washington had heard while traveling the country toward the end of his first term. Click here for a link to Washington\u2019s July 29, 1792 letter to Hamilton<\/a><\/strong><\/span>. While Washington did not identify Jefferson by name, Ron Chernow suggests that Hamilton would clearly have known the source of the grievances Washington listed. Among the list of complaints, Washington wrote to Hamilton that critics were alleging that the real intent of Hamilton\u2019s policies was to replace the new Constitution with a monarchy based on the British model.<\/p>\n

In a passage quoted by both Representatives Schiff and Nadler, Hamilton rejected any suggestion that there was a plot by Hamilton or anyone else in the administration to reinstitute a monarchy. Hamilton, in his exhaustive 14,000 page letter entitled \u201cObjections and Answers Respecting the Administration,\u201d methodically responded to all criticisms identified by Washington.  Click here for a link to Hamilton\u2019s August 18, 1792 letter to Washington<\/a><\/span><\/strong>. With regard to criticism 14 in Washington\u2019s letter, Hamilton explained the circumstances which theoretically could present a threat to our democracy:<\/p>\n

When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits\u2014despotic in his ordinary demeanour\u2014known to have scoffed in private at the principles of liberty\u2014when such a man is seen to mount the hobby horse of popularity\u2014to join in the cry of danger to liberty\u2014to take every opportunity of embarrassing the General Government & bringing it under suspicion\u2014to flatter and fall in with all the non sense of the zealots of the day\u2014It may justly be suspected that his object is to throw things into confusion that he may \u201cride the storm and direct the whirlwind.\u201d<\/p>\n\n\n

To be sure, Hamilton did not think that this scenario was likely. But he did identify the \u201cpath\u201d whereby a demagogue could subvert the new Republican form of government:<\/p>\n\n\n

The truth unquestionably is, that the only path to a subversion of the republican system of the Country is, by flattering the prejudices of the people, and exciting their jealousies and apprehensions, to throw affairs into confusion, and bring on civil commotion. Tired at length of anarchy, or want of government, they may take shelter in the arms of monarchy for repose and security.<\/p>\n\n\n

In his opening statement, Representative Schiff argued that President\nTrump \u201chas acted precisely as Hamilton and his contemporaries had feared.\u201d Of\ncourse, President Trump\u2019s attorney, Jay Sekulow, promptly rejected this comparison.\nFor Sekulow, the famous Hamilton quote was \u201cinapplicable and completely out of\nplace\u201d since it wasn\u2019t about impeachment and was primarily about policy\ndisputes five years after the Constitution was adopted. \u201cThey\u2019re not only\ntaking the wrong law, they\u2019re taking the wrong quotes from the Founding Fathers.\n. . It would be really appropriate if they cited the right provisions and what\nthe Founding Fathers were actually talking about,\u201d Sekulow asserted. <\/p>\n\n\n\n

House Manager Gerald Nadler went even further in implicitly connecting Hamilton\u2019s warning to President Trump. According to Representative Nadler, Hamilton\u2019s 1792 letter was an \u201can especially striking portrait.\u201d For Nadler, \u201cHamilton was a wise man. He foresaw dangers far ahead of his time.\u201d<\/p>\n\n\n

Conservative columnist William Kristol, in a piece for the now-defunct Weekly Standard<\/em>, quoted the same Hamilton letter in a January 2018 article entitled \u201cDid Alexander Hamilton Predict the Rise of Donald Trump?\u201d <\/a><\/strong><\/span> It is safe to conclude that the 1792 Hamilton quote does not directly<\/em> support the Democratic argument for impeachment. The quote was not written in the context of impeachment and Hamilton\u2019s musings were addressed only to Washington. Nevertheless, at the time of this writing, it will be for the Senate to decide what the letter warned against.<\/p>\n

In an earlier op-ed in the Wall Street Journal entitled \u201cHamilton Wouldn\u2019t Impeach Trump,\u201d<\/a><\/strong><\/span> attorney Alan Dershowitz hinted at the arguments that he would later make on the Senate floor. Thus, there should have been no surprise that Hamilton and the founders would be cited as authorities by both sides in the Senate trial.<\/p>\n\n\n

Federalist 65<\/em><\/p>\n\n\n\n

              One of the disputed legal questions in the trial of President Trump is whether the House\u2019s allegations of \u201cabuse of trust\u201d rise to the level of an impeachable offense. The most frequently cited Federalist<\/em> essay, by both parties, is Federalist<\/em> No. 65. Not surprisingly, Federalist<\/em> No. 65 was written by Hamilton. The relevant language from Federalist<\/em> No. 65 is cited below. In the remainder of this blog post sets forth the arguments by the parties in their Senate briefs citing the founding fathers.<\/p>\n\n\n

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction 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 are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. 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. 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.<\/p>\n

Click here for a link to Federalist No. 65<\/a><\/strong><\/span>. While both the House Managers and the President cite to Federalist No. 65, they disagree about how to interpret it, as set forth below.<\/p>\n

\"\"<\/a><\/p>\n

The following discussion focuses on the meaning of the term \u201chigh crimes and misdemeanors\u201d and the specific debates by the founders in 1787 and 1788 over the impeachment power. The House Managers\u2019 Trial Memorandum is discussed below. In Part II<\/strong>, the President\u2019s Trial Brief will be discussed.<\/p>\n\n\n

\"\"<\/figure><\/div>\n\n\n\n

House Managers\u2019 Trial Brief<\/em><\/p>\n\n\n\n

The House Managers\u2019 Trial Brief cites historical sources, including quotes to the founders and The<\/em> Federalist Papers<\/em>. Among the quoted authorities are Hamilton (cited 9 times); George Mason (cited 2 times); James Madison (cited 1 time); a letter between John Adams and Thomas Jefferson (1 time); and The Federalist Papers<\/em> \u2013 No. 65, 69, and 69 (cited 6 times).<\/p>\n\n\n\n

\"\"<\/figure><\/div>\n\n\n

Click here for a link to the House Managers\u2019 Trial Brief<\/a><\/strong>,<\/span> which contains an entire background section dedicated to the \u201cConstitutional Grounds for Presidential Impeachment.\u201d <\/p>\n\n\n

Copied below are selections from the House Managers\u2019 Trial Brief:<\/p>\n\n\n