Limiting Senate probe ignores impeachment intent of founders

Senators will soon decide whether to reject the articles of impeachment against President Donald Trump without hearing from witnesses. In making this decision, I think they should heed the words spoken at the Constitutional Convention, when the Founders decided that an impeachment process was necessary to provide “due review,” to quote Benjamin Franklin.

A critical debate took place on July 20, 1787, which resulted in the impeachment clause being added to the U.S. Constitution. Franklin, the oldest and probably the wisest delegate to the Constitutional Convention, said that when the president falls under suspicion, a “regular and peaceful inquiry” is necessary.

In my work of law professor studying original texts Regarding the U.S. Constitution, I have read statements made at the Constitutional Convention that demonstrate that the Founders viewed impeachment as a regular practice, with three purposes:

  • Provide a fair and reliable method for resolving suspected misconduct;
  • To remind both the country and the president that he is not above the law;
  • To deter abuse of power.

Good for the president and the country

Benjamin Franklin of Pennsylvania.
Joseph Duplessis/National Portrait Gallery/Wikimedia Commons

Franklin argued persuasively that impeachment was a process that could be “favorableto the president, saying it’s the best way to provide for “the regular punishment of the executive when his misconduct deserves it and for his honorable acquittal when he should be unjustly accused.

Franklin may have led the debate when he told his fellow delegates the story of a recent dispute which had greatly troubled the Dutch Republic.

One of the Dutch leaders, William V, Prince of Orange, was suspected of having secretly sabotaged a critical alliance with France. The Dutch had no impeachment procedure and therefore no way to conduct “a regular examinationof these allegations. These suspicions arose, giving rise to “the the most violent animosities and disputes.”

The moral of Franklin’s story? As Franklin said, had Prince William “been impeached, a due and peaceful inquiry would have taken place.” The prince would have,if guilty, have been duly punished – if innocent, have regained the public’s trust.”

The main objective was to prevent abuse of power

George Mason of Virginia.
Library of Congress/Wikimedia Commons
James Madison of Virginia.
White House Historical Association / Wikimedia Commons
William R. Davie of North Carolina.
Charles Willson Peale/Wikimedia Commons

Many delegates to the Constitutional Convention agreed with George Mason of Virginia’s assertion that “no point is more important … than the right to impeachment”, because no one is “above justice”.

In the discussions that led to the decision to add the impeachment clause to the Constitution, a recurring reason was mentioned: the fear that the president would abuse his power. George Mason described the president as the “man who can commit the most extensive injustice.” James Madison thought the president might “pervert his administration in a diagram of [stealing public funds] or oppression or to betray one’s trust in foreign powers.” Edmund Randolph, Governor of Virginia, said the President “will have great opportunities to abuse one’s power; particularly in times of war when military force and, in some respects, public money will be in his hands.

Governor Morris of Pennsylvania feared that the President “can be bribed by greater interest in betraying trust and no one would say that we should expose ourselves to the danger of seeing [him] in foreign remuneration. James Madison, himself a future president, said that in the president’s case, “corruption was within range of probable events …and could be fatal to the Republic.

Elbridge Gerry of Massachusetts pointed out that a good president would not worry about impeachment, but a “the bad must be kept in fear.”

A final word from the foundation that has particular resonance in current Senate discussions: William R. Davie of North Carolina has argued that impeachment is “an essential safeguard for the good conduct” of the president; if not, “he will spare no effort or means to get re-elected.”

Editor’s note: This is an updated version of an article originally published on September 26, 2019.

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Norman D. Briggs