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Impeachment as Congressional Contempt of the Constitution
The Framers did not intend the impeachment power to give Congress supremacy, in the form of being able to harass and paralyze the Courts or the president over policy differences, let alone raw political will. Nevertheless, Congress has acted, almost from the beginning, with selective contempt for the Constitution, both legislatively and in its employment of the impeachment power. There is really nothing new under the sun, including what the current majority party in the House of Representatives is doing…and it is still contemptuous of the Constitution.
Take a step back from the current tempest in the Congressional teapot and consider the facts laid out in 1992 by Chief Justice William Rehnquist in Grand Inquests: the Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. The Chief Justice published this very approachable book the year that William Jefferson Clinton beat President Bush the First. Taking his book as a guide to the subject and the actors, some focused searching on the internet yields plenty of historical data and documents. Consider just the first major impeachment, along with a prelude, at the dawn of the 19th Century.
As soon as two parties formed and fought for the presidency, upon President Washington declining to run for a third term, they set about violating the Constitution with the Alien and Sedition Acts, outlawing political speech that the party in power disliked. In that context, with factions at each other’s throats, Congress impeached, tried, and removed a federal judge, then targeted a Supreme Court justice, Samuel Chase.
The federal judge was John Pickering. He had become unfit for office, universally recognized at the time to be suffering from some combination of insanity and alcoholism that rendered him incapable of sitting as a judge. The Constitution is perfectly clear:
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. (Article III, Section 1)
The only tool to remove a judge from office is impeachment. The basis for impeachment is in Article II, Section 4:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
The process of impeachment and removal is laid out in two sections of Article I:
Section 2: … The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.
Section 3: … The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
There is not a word in Article III about a method of removing or disciplining judges. The “civil officers” language was and still is read to stretch to Article III judges. Having stretched the impeachment power to cover judges, the Democratic-Republicans went further. They were determined to reduce the number of Federalist judges, seen as an obstacle put in place by a lame-duck Federalist Congress and president first authorizing and then filling a number of federal court seats in February of 1801. Pickering seemed an easy target, even though he had held his seat since his appointment by President Washington.
The House ginned up four articles of impeachment. The first three were all elaborations of a single legal dispute over a ship and its cargo, on which the government alleged duty was owed. Judge Pickering ruled against the government, then refused to stay his decision pending appeal, so costing the government some money. So, the Democratic-Republican majority in the House of Representatives stretched “high crimes and misdemeanors” to disputed the application of law in a court case. They then tacked on a fourth article to the Judge John Pickering impeachment:
That whereas for the due, faithful, and impartial administration of justice, temperance and sobriety are essential qualities in the character of a judge, yet the said John Pickering, being a man of loose morals and intemperate habits, on the 11th and 12th days of November, in the year 1802, being then judge of the district court in and for the district of New Hampshire, did appear on the bench of the said court for the administration of justice in a state of total intoxication, produced by the free and intemperate use of intoxicating liquors; and did then and there frequently, in a most profane and indecent manner, invoke the name of the Supreme Being, to the evil example of all the good citizens of the United States; and was then and there guilty of other high misdemeanors, disgraceful to his own character as a judge and degrading to the honor of the United States. And the House of Representatives, by protestation, saving to themselves the liberty of exhibiting at any time hereafter any further articles or other accusation or impeachment against the said John Pickering; and also of replying to his or any answers which he shall make to the said articles, or any of them; and of offering proof to all and every other articles, impeachment, or accusation which shall be exhibited by them as the case shall require, do demand that the said John Pickering may be put to answer the said high crimes and misdemeanors; and that such proceedings, examinations, trials, and judgments may be thereupon had and given as may be agreeable to law and justice.
Notice how thin this all is. Ah, but what else were they to do? There was an obvious, legitimate solution, already exercised three times since the Constitution was ratified; amend the Constitution. It would take two notorious cases of presidents reported after the fact to have been incapacitated for Congress to propose the 25th Amendment later in the 20th Century, but Congress had moved with lightning speed to fix the process of electing the president and vice president, effectively ensuring they would be elected as a ticket rather than as rivals, and to limit the cases that could be heard by the Supreme Court so that foreigners and citizens of other states could not haul a state government into court.
Consider this timeline:
1788: Constitution ratified and the first presidential election held.
1789-1797: President Washington was unopposed, then stepped aside, setting the precedent for two terms.
1793: The Supreme Court, in Chisholm v. Georgia, held that states had given up their sovereign immunity when they ratified the Constitution.
1794: Congress sends the 11th Amendment to the states, which ratify it in 1795, overturning Chisholm v. Georgia.
1796: John Adams, Federalist, elected
1798: The Federalists, the first party in power, were not happy to find effective opposition mounting, so they passed the Alien and Sedition Acts for the real purpose of suppressing domestic political opposition. The cover story was fear of war with France, messy foreign entanglements with Britain and France leading to a reversal of our earlier alliance. This attempt to suppress dissent failed and backfired.
1800: Thomas Jefferson, Democratic-Republican, elected
1801: After a major electoral defeat, President John Adams and the Federalist majorities in Congress “pack the courts” by authorizing and then filling a number of district court seats just before the new Democratic-Republican congressional majorities and President Jefferson took office.
1803: The majority swung heavily from Federalist to Democratic-Republican in Congress.
- House: D-R 103: F 39
- Senate: D-R 25: F 9
1803-1804: Congress responded to bitter fights over the presidency and vice presidency, where it appeared rivals might be installed. The 12th Amendment effectively put the two offices together on one ticket, removing the obvious moral hazard.
The Democratic-Republican majority in the House moved to impeach Judge Pickering. In March of 1803, the House swiftly voted 45- 8 to impeach Judge Pickering. However, the Congress in those days adjourned for months, so they did not start drafting the articles of impeachment until October, voting at the end of December and finally electing floor managers to carry the articles to the Senate, which they did on January 4, 1804. The next day, January 5, 1804, the House was already debating whether to impeach Justice Samuel Chase. Removing him would allow the Democratic-Republicans to start reshaping the Supreme Court more to their liking.
The Senate did consider evidence of Judge Pickering’s alleged insanity, the House has been worried and have found witnesses to claim that any insanity was caused by heavy drinking. The public held the belief, deeply embedded in the common law, that insanity was a defense to criminal charges. So, the House and Senate were in a bad position if they did not get around this claim in some way. The Senate took written testimony on the mental state of Judge Pickering without the assistance of the House managers, who repeatedly insisted they had no such instruction from the House. On March 10, 1804, the Senate rejected the insanity defense that had been offered. Finally, on March 12, 1804, the Senate voted 20-6 to remove Judge Pickering from office.
Justice Chase was impeached for applying the law and conducting his courtroom in a matter the Jeffersonian Republicans (not the Republican Party that formed in the 1850s) disliked. If the facts sound odd to you, it is because at the dawn of our republic, the Supreme Court spent much of their time split up hearing cases individually in different circuits. They were circuit-riding judges who then came together to consider cases on final appeal. So, the party with a majority in both the House and Senate was indirectly targeting the Supreme Court in its infancy.
1804: On March 26, two days before the annual adjournment, the House adopted eight articles of impeachment against Justice Chase*
1805: The Democratic-Republicans add to their congressional majorities:
- House: D-R 114: F 28
- Senate: D-R 27: F 7
The Senate, with such a large Democratic-Republican majority could easily rubber stamp the impeachment of Justice Chase, and so help their party’s short term political agenda. Yet, they did not. The most the Democratic-Republicans could muster for any of the 8 charges was 19-15. On some charges, majorities voted not guilty. Doing the math, and looking at the roll call vote, eight Democratic-Republican Senators joined the Federalists. They put the Constitution over their party passions, seeing that removing judges from office because you really just do not like the way they apply the law and run their courtroom is a gross violation of the Constitution in itself, a rewriting of the checks and balances.
Notice the timing. Consider that if the Democratic-Republicans were really concerned about the third branch of government being out of control, as the Anti-Federalists had warned, then they had more than enough votes in both houses of Congress to vote out an amendment to Article III, defining a legislative supermajority veto or review of court cases, or giving state legislatures such a power. Similarly, they might have added a mechanism for removing physically or mentally unfit judges.
Article V of the Constitution provides: “The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution…” The House had 142 members, so 2/3 would be 94. There were 34 Senators, so 23 would carry the day. Jefferson’s party had room to spare to unilaterally reshape the judiciary for the long term by changing the rules under which the courts operate. They chose not to do so. Considering the vote on the impeachment of Justice Chase, it may well be that there was no real appetite to significantly change the Constitution.
What lessons do you draw from this small bit of history?
* These two pages from the Annuls of Congress capture the eight charges leveled against Justice Chase:
Rules and precedents? Rules and precedents! We don’t need no stinkin’ rules and precedents!
Congress was sorry when it was the Continental Congress. Has not changed since.
Amen to that.
Thanks for all your work on this post Cliff. Worth the price of a Ricochet membership. It’s such a shame we humans are such a conniving bunch of bastards. Politicians so quickly forget why they are elected to represent the people.
Then what on earth is Alcee Hastings doing in Congress?
As we have seen more times than we could possibly count, rules don’t apply to Democrats.
The Senate chose to not impose that punishment. Don’t know why, but it is their decision.
All politicians/government officials act with selective contempt for the Constitution. That’s precisely why the framers made sure to build in checks and balances. The House of Representatives contemptuously use the impeachment power and then the Senate brings the process to a screeching halt. This is the system working as it was designed…
Great job, Clifford.
… right up until the House refuses to submit the articles of impeachment to the Senate.
Geez, Nancy Pelosi, way to ruin my appeal for calm!
Great job as usual Clifford!
At least I got some comedy all day yesterday with one right after the other of those weasels going on camera to extol “The Founders!” and “Our Framers!” and “Our Beloved Constitution!” (which until this week they just wiped their feet on)
Bu they were solemn.
Article 1 states that the legislative houses are the sole determinants of the qualifications of their members.
My theory is that Alcee Hastings could never be a Senator (since the Senate had voted to remove him), but since it only takes a simple majority in the house to impeach, mustering a 2/3 majority to remove him wasn’t going to happen.
It says ‘judgment shall not extend further than’, meaning it could be less. I think the Senate chooses the sentence after the conviction. If they didn’t specify that he couldn’t hold future office, then he would be eligible.
I think a fair sentence would be another term after his second one, since the first one was so besmirched and obstructed at every turn. Haha! A girl can dream.
This is one very studious and informative post. Thank you so much for all the details you included.
Exactly. Why, we now have hearsay as our new rule and it’s a lot more stinkin’ important than constitutional trivialities or silly precendents.
Every time Trump jokes around about serving a third time, another 20 Democrats die of heart attacks, so there is that!
Their feet, you say? I had understood they had it printed on rolls and hung in the stalls of their washrooms.
So Clifford, I find the entire discussion of the 1803 era judge mentioned in your article to be interesting. Especially given that one of the defenses he raised against his impeachment was insanity. (Or maybe it was his attorneys who raised it.)
Since Jan 20th 2017, we have been told quite often that the 25th Amendment allows for the removal of any person from a higher office due to mental defects. So I found it interesting that the judge’s insanity or being an alcoholic was once a permitted defense against impeachment.
Wouldn’t matter even if they said he couldn’t serve again.
The House has sole authority to determine the qualifications of their members.
A couple of things:
First, the 25th Amendment, by definition, amends the earlier portions of the Constitution. It deals only with the president’s incapacity, not that of a judge or member of Congress.
Second, the insanity defense was not a direct attack on the process of impeachment. Rather, it struck at “high crimes and misdemeanors.” The Congress was casting about for available tools to unseat a Federalist judge who happened to actually be medically unfit. Impeachment was the only tool they had, and, instead of taking this episode as a cue to reconsider Article III, they used a sledgehammer to mash a round peg into a square hole. The Democratic-Republicans alleged that the judge’s conduct on the bench, his application of the law, was impeachable, when the obvious remedy was appellate review and reversal. The record of the House and Senate deliberations reveals that the American people believed that insane people were not fully responsible for criminal conduct.
The Democratic-Republicans actually had a point, in those days, about what they styled Judge Pickering’s refusal to allow appeal of a verdict against the government. In a day when communications moved at the speed of horseback or slow sail, a trial court that refused to stay its verdict about a ship and its cargo was effectively letting the ship owner make off with the ship and goods without the government having effective remedy. It was not like the government could fire off even a telegram to Washington to get members of the Supreme Court to consider and issue a stay on the trial court judge’s decision.
Note, however, that Congress did not allege corruption. They claimed injury to the public purse but not a payment of some sort to the judge for the favorable verdict. There are hanging judges and bleeding heart judges; neither set are rightly subject to impeachment. In the case of a judge who cannot be trusted by other judges, we see that Pickering was apparently sidelined, his trial load taken over by another judge for some time.
Each time that Congress misuses its powers, it frays at its own legitimacy and the power of the Constitution. Impeachment of presidents happened once between 1788 and 1973, almost two centuries, now this weapon has been deployed against the executive branch three times in less than half a century.
Not quite a complete statement. They cannot change the Constitutional qualifications. The facts of the case are available on the Senate website: “The Impeachment Trial of Alcee L. Hastings (1989) U.S. District Judge, Florida.” [emphasis added, note the sequence of events I highlighted]:
He was older than 25 and resided in the state. Even if the Senate ruled him unfit for future office if he had been elected he could have served, provided the House didn’t kick him out.
We’ve seen already that states don’t seem to use Constitutional qualifications prior to putting someone on the ballot.
No. A constitutional bar is a constitutional bar. The House knew this when it impeached the judge. The Senate knew this when they refrained from doing more than removing the judge from his Article III position. After all, they surely knew peers engaged in similarly mercenary exploitation of elected office.
New GOP talking point: if the impeachment is not official until they send it to the Senate, then he hasn’t yet been impeached. If they decide not to send it to the Senate, then he never was impeached.
“Cocaine Mitch” explains impeachment and the Constitution slowly: