The 1787 Constitutional Convention had as much difficulty coming to a conclusion about Impeachment as do the present day Congress and particularly the media. It is my opinion that the root cause of so much contradictory pronouncement is that Impeachment has an inherently too- powerful result. George Mason introduced Impeachment as a subject for the Convention to consider. It was debated, mostly on-and-off throughout months of work. Each time the discussion foundered on deciding what an impeachable offense consisted of. It was finally settled by Mason’s suggestion to add high crimes and misdemeanors to follow bribery and treason (from England’s usage). The delegates were anxious to adjourn and Mason was unwilling to give up inclusion of a means to get rid of a president who might be acting in concert with a foreign government; on this all agreed. Thus the definition intended giving a low-to-high range; even if the lower standard is ambiguous it signals importantly there is an importance to impeachments.
An impeachment by the House of Representatives is no more than the equivalent of an indictment by a Grand Jury in a criminal offense. It is a means of initiating felony proceedings; thereafter it is the trial only that has importance. I have heard it said that it was a poor prosecutor that could not indict a ham sandwich if he desired that result. The meaning of the comparison is that an impeachment does not have to be anything important at all. The offense is more often than not a matter of politics among politicians. The media sensationalize impeachments because it is easy to portray it in excessive language; provided by politicians. The worst that can happen to the defendant is to be ineligible for any high office in the government. To a politician that might be a high price, but in any other employment it is merely dismissal. The Constitution was written in final form by a Committee of five members chosen specifically for their writing ability and to put the instructions from the Convention in order. These writers used language precisely and sparingly. They were unlikely to say an impeached person could not be sentenced beyond removal from office, if they meant something more than removal from office, else they would have written that differently. The person impeached has to be still in office to be removed from it. There could be debate as to the timing of impeachment affecting the removal debate, but that is not inherent in the present situation. Trump is impeached, but cannot be sentenced, if convicted. I read a prior impeachment of General Grant’s Secretary of War who had resigned before being impeached. The same debate as with Trump occurred, and the Senate, after debate, acquitted to ensure the taint of impeachment was qualified properly as “innocent or improper,” which ever applied in the public mind.
The media lack nuance in writing up stories about impeachment. They use previous impeachments and quote what Senators and Representatives have said about the process. And too, current actors have a political reason to choose sides and to speak in uncompromising words about merits or flaws of the politics of the impeached’s forthcoming trial. These commentaries, both past and present are totally political speech, as much as a campaign for election is only about one thing; election.
Of real importance is if a government politician is impeached and convicted by the requisite two-thirds majority of the Senate. Then a sentence may be imposed, but is not mandatory, and may be no more than removal from office and a second sentence of ineligibility for high office in the government thereafter. Even if only impeached and convicted, but without the second add-on sentence the person is still eligible to seek office again. What matters to the politician is whether she can overcome the stigma. It seems to me it is a poor opponent that cannot win election against an impeached and convicted opponent, but it has been done. That is as clear an indication that even the politicians consider impeachment as nothing more than a high form of dirty politics, for which there is no rule book of limitations.
For more on this subject see my February 7, 2020 essay on Trump’s first Impeachment and January 27, 2021 for my conclusions about impeaching a former officeholder.
Publiustoo.com February 8, 2021
