{"id":7672,"date":"2020-01-30T17:33:53","date_gmt":"2020-01-30T22:33:53","guid":{"rendered":"https:\/\/www.statutesandstories.com\/blog_html\/?p=7672"},"modified":"2020-03-25T11:54:09","modified_gmt":"2020-03-25T15:54:09","slug":"the-founders-and-impeachment-part-ii","status":"publish","type":"post","link":"https:\/\/www.statutesandstories.com\/blog_html\/the-founders-and-impeachment-part-ii\/","title":{"rendered":"The Founders and Impeachment – Part II"},"content":{"rendered":"\n

This post is a continuation of a discussion of the framers,\nthe Constitution, and the impeachment trial of President Donald J. Trump. Both\nthe House Managers arguing for impeachment and the lawyers defending the President\nagree that intent of the founders is relevant in the Senate trial. <\/p>\n\n\n\n

The phrase \u201chigh Crimes and Misdemeanors\u201d is not defined in\nSection 4 of Article II of the Constitution. Accordingly, the arguments and\nlegal briefs cite to the notes of the Constitutional Convention in 1787, the\nstate ratification debates in 1788, and The<\/em> Federalist Papers<\/em>. In\nparticular, Federalist No.<\/em> 65 is repeatedly mentioned in the briefs,\nthe House Managers\u2019 opening statements, and the Q & A\u2019s before the Senate.<\/p>\n\n\n

Part I<\/strong><\/a><\/span> of this post provides an overview and discusses the House Managers\u2019 Trial Brief. This post (Part II), discusses the President\u2019s Trial Brief and legal arguments. As discussed in Part I, the House Managers argue, among other things, that when drafting the Constitution, the founders intended \u201cabuse of power\u201d to be impeachable. By contrast, the President\u2019s lawyers argue that the impeachment articles brought against President Trump are \u201cstructurally deficient and can only result in acquittal.\u201d<\/p>\n\n\n

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While the House Managers emphasize Federalist No<\/em>. 65\nand the broad and flexible meaning of the phrase \u201chigh Crimes and Misdemeanors,\u201d\nthe President\u2019s lawyers focus on the \u201creal danger\u201d of partisan impeachments recognized\nby Hamilton in Federalist<\/em> No. 65. The President\u2019s brief also cites to\nJefferson\u2019s concern that impeachment is \u201cthe most formidable weapon for the\npurposes of dominant faction that ever was contrived.\u201d<\/p>\n\n\n\n

Both sets of briefs ground their arguments in the drafting history of the phrase high Crimes and Misdemeanors. The President\u2019s brief places particular emphasis on Gouverneur Morris\u2019 position that \u201cfew\u201d offenses \u201cought to be impeachable,\u201d and the \u201ccases ought to be enumerated and defined.\u201d When the term \u201cmaladministration\u201d was proposed as a ground for impeachment it was rejected based on Madison\u2019s concern that \u201c[s]o vague a term\u201d would be equivalent to a tenure during the \u201cpleasure of the Senate.\u201d Citing William Blackstone\u2019s Commentaries on the Laws of England, the President argues that the framers restricted impeachment to specified offenses of \u201calready known and established law,\u201d not amorphous abuses of power.<\/p>\n\n\n

Click here for a link to the Constitution<\/strong><\/span><\/a> in the National Archives. A copy of the impeachment clause in Article II, Section 2 is copied below.<\/p>\n\n\n

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President Trump\u2019s Trial Brief<\/em><\/p>\n\n\n\n

Among the authorities cited in the President\u2019s Trial Brief are\nAlexander Hamilton (cited 24 times); James Madison (cited 20 times); Gouverneur\nMorris (cited 6 times), James Iredell (cited 5 times); George Mason (cited 2\ntimes); Charles Pinckney (cited once) and a letter from Thomas Jefferson to\nJames Madison in 1798. The House Managers\u2019 Trial brief cites to three of The\nFederalist<\/em> essays (Nos. 65, 69, and 69). The President\u2019s Trial Brief cites\nto Federalist<\/em> No. 48, 49, 51, 65, and 66. <\/p>\n\n\n

Click here for a link to the President\u2019s Trial Brief<\/strong><\/a><\/span>, which contains an entire background section describing the \u201cText and Drafting History of the Impeachment Clause.\u201d<\/p>\n\n\n

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Copied below are selections from the President\u2019s Trial Brief:<\/p>\n\n\n