Faithless Execution. Andrew C McCarthy

justice James Iredell likewise observed that a president would be “personally responsible for any abuse of the great trust reposed in him.”⁴

      For the unitary executive to be truly accountable, the Framers provided a mechanism to hold him to account. It would be “indispensible,” as James Madison put it, for Congress to have the power to impeach and remove the president in order to protect the nation against “the incapacity, negligence or perfidy of the chief Magistrate.” At the Commonwealth of Pennsylvania’s later debate over ratification of the proposed Constitution, James Wilson explained that the imperative of a removal power stemmed from both the concentration of executive authority in one public official and the principle that no man was above the law:

      The executive power is better to be trusted when it has no screen. Sir, we have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes. . . . Add to all this, that officer is placed high, and is possessed of power far from being contemptible, yet not a single privilege, is annexed to his character; far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.⁵

      Support for the impeachment remedy was overwhelming, though not unanimous. Gouverneur Morris and Charles Pinckney, for example, worried that impeachment proceedings might interfere with the president’s effective performance of his duties. Moreover, because chief executives would always have subordinates in the commission of any crime, they thought it sufficient that these “coadjutors” could be punished during the presidential term. Morris also offered what may be the ultimate argument for the political rather than legal essence of the matter: If a president were reelected, he opined, that would be sufficient proof that he should not be impeached.

      Quite rightly, the other delegates were not moved by these qualms. After all, a president who was corrupt in the execution of his duties would spare no corrupt efforts to get himself reelected, especially if winning would immunize him from impeachment. His perfidy might not be discovered until after reelection was secured. These all too real possibilities, Mason pointed out, “furnished a peculiar reason in favor of impeachments whilst [the president was] in office.” Plus, the law regarded principals as responsible and thus punishable for the wrongs of their coadjutors; manifestly, this should no less be so when it came to the president—the principal capable of doing the greatest harm to the republic. It was, unsurprisingly, Benjamin Franklin who offered the convention’s most bracing point in favor of impeachment: Historically, when no impeachment remedy was available to a society, “recourse was had to assassination” in cases where “the chief magistrate had rendered himself obnoxious”—an intolerable outcome that not only “deprived [him] of his life but of the opportunity of vindicating his character.”

      Ever concerned about the balance of powers among the branches that is the Constitution’s genius, the Framers did worry that granting impeachment authority to Congress could give the legislature too much power over the executive. Any governmental power can be abused, and impeachment is no exception. But though this danger could not be discounted, it would be mitigated by the unlikelihood that a large bicameral legislature drawn from different states with divergent interests—as opposed to a single chief executive—could be broadly corrupted. Moreover, the high hurdle of a two-thirds supermajority needed for conviction in the Senate would guard against wrongful removal.⁶

      History attests to the Framers’ wisdom in this regard. In over two and a quarter centuries of constitutional governance, articles of impeachment have been formally voted by the full House of Representatives against only two American presidents, Andrew Johnson and Bill Clinton. In each case, there were insufficient votes in the Senate to convict and remove the incumbent from office. A third president, Richard Nixon, would surely have been impeached and removed had he, like Johnson and Clinton, chosen to fight to the bitter end.⁷

      The convention delegates concurred in the principles that the United States is a nation of laws not men and that the potential for abuse of the presidency’s awesome powers required making provision for removal of an unfit incumbent. This consensus, however, did not immediately translate into agreement on an impeachment standard. It was assumed from the first that a president would be removable for “malpractice or neglect of duty.” Yet, consistent with the concern that the executive not become too beholden to Congress, some delegates suggested a narrower and more objective standard that stressed the gravity of impeachment: The president would be removable only for treason or bribery. But this was clearly insufficient, failing to account for an array of corrupt and incompetent actions not necessarily related to either cupidity or treachery.

      Such condemnable conduct was not merely foreseeable in the abstract. The Framers had a concrete, contemporaneous example: the sensational impeachment trial in Parliament of Warren Hastings, Britain’s governor-general in India. The primary proponent of Hastings’s impeachment was Edmund Burke, the renowned Whig parliamentarian, political philosopher, and supporter of the American Revolution. Burke extensively charged Hastings with “high crimes and misdemeanors,” the ancient British standard for removing malfeasant public officials. While some of Hastings’s offenses involved bribery, most related to extortion, heavy-handed corruption, trumped-up prosecutions (resulting in death and other severe punishments), the allegedly reckless conduct of warfare, and what we would today call “human rights” abuses against the indigenous people of England’s Indian domains. Far from treasonous, Hastings’s actions were intended to preserve and strengthen the British Empire’s position (even if, to Burke’s mind, their wanton immorality and disregard for Indian sensibilities arguably weakened it).⁸

      The impeachment inquiry on Hastings’s governance formally began in 1786, and articles against him in the House of Commons were voted the next year, only a few weeks before the Philadelphia convention. Mason noted the spectacle in positing that the executive would be inadequately restrained if impeachment were limited to treason and bribery: “Treason as defined in the Constitution will not reach many great and dangerous offenses. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason[.]” After the delegates finally agreed to add “high crimes and misdemeanors” to treason and bribery as grounds for impeachment, Hamilton explained that Great Britain provided “the model from which [impeachment] has been borrowed.”⁹

      “High crimes and misdemeanors” was not Mason’s first choice. He argued for “maladministration,” the term used in the impeachment provisions of several state constitutions. Blackstone’s Commentaries on the Laws of England, a magisterial legal treatise that profoundly influenced the Framers, described “maladministration of such high officers, as are in public trust and employment” as the “first and principal” of the “high misdemeanors”—offenses “against the king and government” that were punished by “parliamentary impeachment.”¹⁰ “Maladministration” was indeed close to the concept the delegates had in mind, but Madison had reservations about its vagueness. A promiscuous construction of the term could devolve into legislative dominance over the executive, going well beyond the objective of empowering Congress to deal decisively with a president who had demonstrated himself truly unfit. Mason responded to Madison’s concerns by amending his proposal to “high crimes and misdemeanors,” which had the benefit of being a venerable term of art.¹¹ This standard was adopted by the convention and enshrined in the Constitution.¹²

      All public officials are certain to err at times, and chief executives, who make the most consequential decisions, can err egregiously. Nor will it be uncommon for presidents to abuse their powers to a limited extent, whether because of venal character or because it is often the president’s burden to navigate between Scylla and Charybdis. Comparatively few presidents, though, will prove dangerously unfit for high office. Thus, impeachment was designed to be neither over- nor under-inclusive. “High crimes and misdemeanors,” complementing treason and bribery, was an apt resolution. It captures severe derelictions of duty that could fatally compromise our constitutional order, but eschews impeachments based on trifling irregularities.

      As Burke made clear, “high