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'Shall any man be above Justice?'; The question posed by George Mason more than 200 years ago resonates today as the Senate weighs the president's dismissal.

THE BALTIMORE SUN

THE FRAMERS of the Constitution considered the impeachment mechanism so crucial that it emerged from the very beginning of the Constitutional Convention. Edmund Randolph included it in his Virginia Plan, which provided the basis for the initial debates at the convention.

The Framers wanted an executive who could be held accountable for wrongful conduct, but they did not want to create a new monarchy in the executive office. Elbridge Gerry expressed the sentiment of the founding generation when he stated, "The maxim would never be adopted here that the chief Magistrate could do [no] wrong."

To hold the president accountable, the Framers vested the executive power in one individual. The idea of a "plural executive" was seriously considered but rejected, despite its anti-monarchical structure.

Another convention delegate, William R. Davie, noted that where there is one executive, everyone will know where to place the blame. At the convention, Davie stated that impeachment "was essential for the good behavior of the Executive."

Benjamin Franklin argued that impeachment power was in the president's best interest. James Madison considered the impeachment power "indispensable ... for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate."

Madison felt that limiting a president's time in office simply did not provide sufficient security against the potential abuse of power. During his tenure in office, the president might "lose his capacity [and] ... pervert his administration into a scheme of peculation or oppression ... [or] betray his trust to foreign powers."

Thus, Madison concluded that impeachment was a necessary check because the president's "loss of capacity or corruption ... [could] be fatal to the Republic."

Though strong sentiment existed for a presidential impeachment mechanism, there was some opposition. Gouverneur Morris and Charles Pinckney sought to remove the provision for impeachment of the president. Morris gave two reasons.

First, he believed that the president could not commit any impeachable act without "coadjutors" (assistants).

Consequently, the Constitution could safeguard the country from the president's wrongful acts by creating punishments to deter potential coadjutors.

Second, Morris expressed concerns that the branch empowered to impeach the president would end up controlling him. George Mason responded to Morris' concerns by stating:

"No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? When great crimes [are] committed ... punish the principal as well as the Coadjutors."

Corruptibility concerns

Mason elaborated on his point by referring to concerns about the corruptibility of electors: "Shall the man who has practised corruption [and] by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?" Morris, persuaded by that argument, abandoned his view and conceded that the president should be impeachable.

Pinckney, however, remained unconvinced. He felt that impeachment provided the legislature with a "rod over the Executive" that "[will] destroy his independence."

"If he opposes a favorite law," he said, "the two Houses will combine [against] him, and under the influence of heat and faction throw him out of office." Pinckney also believed that the powers given to the president "would be so circumscribed as to render impeachment unnecessary."

Once the delegates decided to include a procedure for impeaching a president, the debate shifted to the issue of where to vest the impeachment power.

Randolph's Virginia Plan vested the power to impeach national officers in the national judiciary. Later in the convention, William Paterson proposed the New Jersey Plan, which provided for the removal of national officers through a majority of state governors. Alexander Hamilton proposed that "all impeachments be tried by a Court to consist of the Chief Judge of the Superior Court of Law of each State."

As a compromise, the Committee of Detail initially recommended that "impeachments shall be ... before the Senate and the judges of the [federal] judicial Court." On Sept. 4, 1787, the committee recommended that the president "be removed from his office on impeachment by the House of Representatives, and conviction by the Senate."

Senate as judge

Among other changes the committee suggested was the electoral college system for electing the president. Morris believed that removing the presidential election process from the Senate was "a conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments."

No other tribunal than the Senate could be trusted. Supreme Court members were too few in number and might be corrupted. Roger Sherman agreed that the Supreme Court did not provide a proper impeachment forum because the president appointed the judges.

Hamilton noted that because impeachment seeks to punish a betrayal of public trust, it is proper to place the power to inquire into such matters with those who represent the public. But he maintained that the Senate was the proper forum to try impeachments.

"The punishment which may be the consequence of conviction upon impeachment," said Hamilton, "is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen, in one trial, should, in another trial, for the same offence, be also the disposers of his life and his fortune? "

'Maladministration'

George Mason ignited the debate about which impeachable offenses should be enumerated in the Constitution. At that time, the only impeachable offenses included in the proposed charter were treason and bribery. Mason believed that "attempts to subvert the Constitution may not be Treason" as they had defined that offense.

To correct that error, Mason proposed that "maladministration" be added to the list of offenses. Madison objected, considering it "so vague a term [that it] will be the equivalent to a tenure [at the] pleasure of the Senate." Mason then withdrew "maladministration" and replaced it with the phrase "other high Crimes and Misdemeanors."

The delegates passed that recommendation 8 to 3 without further debate.

Clinton's case

During the course of American history, the House of Representatives has impeached 16 individuals, including two presidents, Andrew Johnson and William Jefferson Clinton; 12 judges; a senator; and a cabinet member. The Senate acquitted 9 of 16 -- including Johnson. On Tuesday, White House counsel Charles F.C. Ruff launched Clinton's defense by calling the impeachment charges a "witches' brew" of speculation -- not high crimes and misdemeanors.

An excerpt of Ruff's defense presentation before the Senate:

"William Jefferson Clinton is not guilty of the charges that have been preferred against him. He did not commit perjury. He did not obstruct justice. He must not be removed from office.

"Now, merely to say those words brings into sharp relief the fact that I and my colleagues are here today, in this great chamber, defending the president of the United States. For only the second time in our nation's history, the Senate is convened to try the president of the United States on articles of impeachment. There is no one who does not feel the weight of this moment.

"... We seek on his behalf no more than we know you will give us --a fair opportunity to be heard, a fair assessment of the facts and the law, and a fair judgment."

Jason J. Vicente, a recent graduate of the Boston University School of Law, is a law clerk at the Massachusetts Superior Court in Boston. This article is adapted from a longer version that appeared in "Policy Analysis," a Cato Institute publication.

Pub Date: 01/24/99

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