I first read this book in the mid-1990s, after my interest in U.S. presidential history had been piqued by Eugene Roseboom's wonderful book, "A History of U.S. Presidential Elections". Since then I have read many books and articles on impeachment, but Rhenquist's book still remains the best thing I have read on the subject.
"Grand Inquests" is much more than an account of the two major 19th-century impeachments. Most of the book consists of a remarkably well-written and entertaining history covering the period of 1775 to the 1868 Johnson impeachment trial.
Rhenquist emphasizes that in the early years the Supreme Court justices spent only a few weeks a year in Washington sitting as members of that court. The rest of the time they "rode circuit", traveling around in the geographic area to which they were assigned, and sitting with a local federal judge to try cases. It was for actions in his capacity as a circuit rider for which Chase was impeached, and in no way pertained to his Supreme Court duties.
Rhenquist says that from the beginning the justices "complained bitterly" about their "onerous circuit-riding duties", and turnover was high. As a result, the Judiciary Act of 1801 was passed in the lame-duck session of Congress in February of 1801, just before Jefferson took office. This Act created six new circuit courts, and sixteen new circuit judges, to be named by outgoing president John Adams.
Jefferson's party regarded this, "with considerable justification, as a piece of political chicanery". The undelivered commission to James Marbury, for the minor office of justice of the peace for the District of Columbia, resulted in the celebrated case of Marbury v. Madison, in which the Supreme Court declared its authority to find acts of Congress unconstitutional.
Chases' impeachment trial began on February 4, 1805, presided over by Vice President Aaron Burr, who after the trial would "disappear into the wilderness on an adventure, the purpose of which still puzzles historians. He would emerge two years later from that wilderness in the custody of United States marshals....to be tried for treason".
The first Article of Impeachment against Chase dealt with his handling of the John Fries trial. Fries was on trial for treason for his involvement in the 1799 Fries Rebellion, which was the third of the three major tax revolts in 18th-century U.S. history, the others being the 1786 Shays Rebellion and the 1794 Whiskey Rebellion. I have a special interest in the Fries Rebellion, since it involved a revolt of Pennsylvania Dutch farmers, some of whom no doubt were among my ancestors on my mother's side.
Chase's error in his handling of the Fries trial was that he delivered an opinion on a question of law, without first allowing the defense counsel to have their say. This opinion was announced by Chase even before the trial started, and it involved the definition of "treason". Treason is the only crime defined in the Constitution, which says that "Treason against the United States shall consist only in levying war against them, or in adhering to her Enemies, giving them Aid and Comfort".
Since we were not at war at the time of the Fries Rebellion, the last part of the definition could not apply, and the accusation had to be that Fries was "levying war". Chase's opinion, announced without hearing counsel, was that "any armed resistance to the enforcement of a federal statute" could be considered to be "levying war". Obviously this is seriously open to interpretation, and counsel should have been allowed to argue this matter fully to the jury, especially in light of the fact that poor Fries was on trial for his life.
The Senate vote on the Fries article of impeachment against Chase was 18-16 for acquittal, and on another article, also for Chase's mishandling of a circuit rider case, the vote was 19-15 for conviction, still four votes short of the 2/3 super majority required by the Founders.
The votes followed party lines, except that six Republicans defected and voted for acquittal. The only one of the six who explained his vote is Samuel Michill, who wrote almost daily letters to is wife. After the vote he wrote:
"Thus, this tedious and important trial is brought to an end. All this mighty effort has ended in nothing. On this occasion myself and my colleague Smith acted with the Federalists. But we did so on full conviction that the evidence, our oaths, and the Constitution, and our conscience required us to act as we have done."
Another first-hand report is from the diary of John Quincy Adams, who was in the Senate as the time. As usual, John Quincy gets it about right when he writes:
"This was a party prosecution, and is issued in the unexpected and total disappointment of those by whom it was brought forward. It has exhibited the Senate of the United States fulfilling the most important purpose of its institution, by putting a check upon the impetuous violence of the House of Representatives. It has proved that a sense of justice is strong enough to overpower the furies of factions; but it has, at the same time, shown the wisdom and necessity of that provision in the Constitution which requires the concurrence of two-thirds for conviction upon impeachments. The attack upon Mr. Chase was a systematic attempt upon the independence and powers of the Judicial Department..."
I have three main takeaways from the Adams statement. First, it references the danger which the Founders saw in (pure) democracy. Hence, the Founders built in all kind of safeguards to ensure that the "passion of the moment" cannot prevail in our system. One of these safeguards is the six-year term for Senators, providing a check on the "impetuous violence" and the "furies of factions" of the House. Another safeguard is the Electoral College, helping to ensure that a demagogue cannot be elected (although the election of Trump shows that the E.C. no longer fulfills that function).
A second takeaway is the wisdom of the two-thirds majority required for important decisions like a conviction at an impeachment trial. The Founders wrote this into our system for important decisions, like approval of a treaty by the Senate. Certainly this concept was ignored by the British in the Brexit referendum, a horrendous idea violating both of the principles Adams alludes to. Whatever was Cameron thinking?
A third takeaway, not mentioned by Rhenquist, is that Adams himself ignored his own principles and participated in a "party prosecution" when it was his party doing the impeaching. This occurred in 1842 when John Tyler was the subject of an impeachment attempt by House Whigs because of his vetoes of Congressional legislation. The head of the House select committee for this impeachment attempt was none other than John Quincy Adams! I guess even the great ones are capable of gross hypocrisy when it suits their purpose.
The failure of the Chase impeachment attempt did much to ensure the independence of the federal judiciary, and Rhenquist asserts that to this day there have been no further impeachments of federal judges based upon their judicial decisions. A major test of this new-found judicial independence occurred two years later at the trial of Aaron Burr for treason, based upon plans he had supposedly made to cause the secession of the southwestern states during his two-year sojourn to that part of the country after he left the Vice-Presidency.
The Burr trial was presided over by Chief Justice Marshall, and from the beginning President Jefferson "took an inordinate interest in obtaining the conviction of Burr", and made thinly-veiled threats on the independence of the judiciary. Marshall refused to yield to the pressure and made legal rulings that essentially required Burr's acquittal. Rhenquist speculates that had Chase been convicted, Marshall would not have felt able to assert his independence as he did.
To set the stage for the Johnson impeachment case, Rehnquist presents an informative history of slavery in this country, starting with the delivery of twenty slaves to Jamestown in 1619. Rehnquist highlights the fact that the slave trade was abolished by Congress in 1808, based on a specific provision in the "Constitution protecting the slave trade only until January 1, 1808.
Rhenquist's historical account eventually arrives at the start of the Lincoln presidency. Lincoln intentionally chose a diverse cabinet, with appointees from New York, Ohio, Missouri, Pennsylvania, Indiana, Connecticut, and Maryland. Although this group did contain a diversity of views, it should be noted that none were from the deep South.
At his very first cabinet meeting, on March 9, 1861, Lincoln asked each cabinet member to give his views on whether it would be wise to send provisions to Fort Sumter, whose commander had sent word that his supplies were running low and substantial reinforcements were needed. The cabinet members were given a week to think about it, and upon reconvening five answered unqualifiedly "no", one answered "yes", and one said not if it would result in civil war.
Lincoln sent his own emissaries to assess the situation, and the South Carolina governor made it clear to them that any attempt to reinforce Fort Sumter would mean civil war. The cabinet again met, and this time was evenly divided. Despite this, Lincoln ordered the reinforcements sent.
To me this was a clear error on Lincoln's part. If, using his great eloquent powers, he cold not even convince a majority of his own cabinet, how could he possibly expect to unite the country for his war effort? And besides, what was so wrong about letting those seven deep South states secede, based on the principles of self-determination on which our country was founded? Surely we would have much less partisan rancor today had those seven states been allowed to go their own way. (It should be noted that the other four states of the Confederacy seceded only after Lincoln decided to go to war.)
A civil war is a particularly odious kind of war. For Lincoln to plunge headlong into civil war, without the support even of his own cabinet, was surely not warranted. It must follow, then, that his exalted position in American history is not warranted.
The impeachment and trial of Andrew Johnson was a very interesting chapter in American history. Johnson was impeached and tried because he had violated the Tenure in Office Act by removing and replacing Secretary of War Edwin Stanton.
This impeachment attempt was horribly flawed no matter how one looks at it. First, from a political standpoint is was just plain silly. The House voted impeachment on February 24, 1968. With the next election less than a year away, it would make much more sense to simply vote Johnson out of office.
Fro a legal standpoint, it is doubtful that the Tenure in Office Act even applied to Johnson. The Act only covered cabinet members "for the term of the president who appointed them and one month thereafter". Since Stanton had been appointed by Lincoln, not by Johnson, those supporting Johnson argued that it didn't even apply. Michael Les Benedict, author of "The Impeachment and Trial of Andrew Johnson", says that the only historian to delve into this issue intensively has concluded that the Democrats were right on this issue.
From a constitutional standpoint, the impeachment attempt was wrongheaded because the Tenure in Office Act was a clear violation of the separation of powers envisioned by the Founders. Indeed, the Act was watered down in 1869 under Grant, and finally repealed under Cleveland in 1887. And in 1926 the Supreme Court, ruling in a similar case, observed that the Tenure in Office Act had been invalid.
The Johnson impeachment trial failed because seven Republicans voted to acquit, and Rhenquist delves into the reasons given by most of them. Senator Fessenden pointed out that each senator had taken a solemn oath to "do impartial justice, according to the constitution and the law", thereby emphasizing the judicial, rather than the political, nature of the proceeding. He concluded that the Tenure in Office Act did not apply to protect Stanton from removal from office. And even if he were wrong on this, it was at least a highly debatable point, so that the president should not be removed for his good faith belief in the Act's inapplicability.
Similarly, Senator Grimes wrote that:
"Nor can I suffer my judgment of he law governing this case to be influenced by political considerations. I cannot agree to destroy the harmonious working of the constitution for sake of getting rid of an unacceptable president. Whatever may be by opinion of the incumbent, I cannot consent to trifle with the high office he holds. I can do nothing which, by implication, may be construed into an approval of impeachments as a part of future political machinery."
Senator Fowler wrote about how cabinet members are agents of the executive and the president has the right to select his own cabinet, a right guaranteed to him by the constitution.
Rhenquist looks at the Articles of Impeachment voted on by the Judiciary Committee against Nixon in 1974, and he concludes that the result was entirely consistent with the views of the seven "recusant Republicans" who voted to acquit Johnson. This is based on the fact that of the five Articles of Impeachment presented against Nixon, the two of them that did not represent clear and serious abuses of presidential power were rejected by the Committee vote. Thus, the article charging Nixon with making false statements to Congress about the bombing of Cambodia was rejected by a 26-12 vote. And similarly, the article charging Nixon with wrongfully using public money to improve his San Clemente home, and with wrongfully taking deductions on his income tax returns, was also rejected by the same 26-12 vote.
Since Rhenquist's book, published in 1992, there has been the Clinton impeachment and trial, and now the current move to impeach Trump, so a few comments on these efforts seem warranted. The Clinton attempt was obviously way out of bounds, as there was no "clear and serious abuse of presidential power". It was purely a political prosecution, and the Republicans came out of it looking like partisan hacks, especially the House Republicans who prosecuted the "case".
The Trump situation presents more difficult issues to analyze. The Mueller Report describes thirty-eight separate incidents of potential obstructions of justice. Surely Trump did try to interfere with the Mueller investigation, but his efforts were unsuccessful. An example is his instructions to Corey Lewandowski, his former campaign manager, to tell Attorney General Sessions to give a speech denouncing the special counsel's investigation. However, Lewandowski was not comfortable with doing this, and never did deliver the message to Sessions.
It should be noted that "obstruction of justice" is a very murky, vague, and broad concept. Like beauty, it exists in the eye of the beholder. And, since Trump was unsuccessful, he cannot even be said to be guilty of it; rather, at best he would be guilty of attempted obstruction of justice.
Those who favor pursuing Trump's impeachment are victims of the fallacy, "I can, therefore I should". The fact is, the existence of adequate grounds for impeachment is not a sufficient reason to proceed. As set out by Laurence Tribe and Joshua Matz in To End a Presidency: The Power of Impeachment, the existence of adequate ground is only one of a three-part test. The second part of the test is "as a matter of political reality, is the effort to remove the president likely to succeed in the House and then in the Senate". And the third prong, then, is "is it genuinely necessary to resort to the impeachment power, recognizing that the resulting collateral damage will likely be significant".
In thinking this through, it is obvious that House Speaker Nancy Pelosi is correct in refusing to push the impeachment issue. Trump's shortcomings were well known during the campaign, and he was elected anyway. Any impeachment effort would surely be seen as a partisan prosecution, and would fail on a party line vote, with the damage to the country being enormous. Even Newt Gingrich now admits he and his fellow House Republicans were wrong to pursue the Clinton impeachment, and he praises Pelosi for her more temperate approach.
In summing up the six impeachment attempts mentioned in this review, we can say that the Tyler and Johnson impeachments were purely political, with no misconduct being alleged. Tyler's alleged wrongdoing was that he vetoed measures passed by Congress which he disagreed with. Similarly, Johnson disagreed with the Radical Republicans concerning Reconstruction policy. Both were honest differences of opinion and obviously not proper grounds for impeachment.
Clinton was guilty of wrongdoing, but it was private wrongdoing and not related to his public duties as president. Kudos to the five Republicans who had the political courage to vote against conviction on both Articles: Olympia Snowe (ME), Susan Collins (ME), Lincoln Chafee (RI), Jim Jeffords (VT), and Arlen Spector (PA).
Five additional Republicans voted against conviction on the perjury Article. What is so striking to me is the careless way in which the term "perjury" was thrown around back then, sort of like with "obstruction of justice" today. Many people don't seem to understand that not every instance of lying under oath is perjury. Rather, it has to be lying under oath about something which is material to an issue in the case at hand. Clinton's consensual relationship with Monica Lewinsky was totally immaterial to any issues in the Paula Jones case, as the trial judge eventually found in dismissing the case. Hence, the 45 Republican Senators who voted for conviction on this article are guilty of gross partisanship blindness.
Chase was certainly guilty of incompetence, but the Senate wisely rejected this as a basis for removal from office. Nixon was guilty of gross misconduct, and would have been rightfully removed from office had he not resigned.
Trump presents a somewhat unique case. He is certainly guilty of maladministration; in the words of the British ambassador, Kim Darroch, his administration has been "dysfunctional, inept and chaotic". However, we need to remember that maladministration is not a ground for impeachment. In fact, it was specifically suggested at the Constitutional Convention by George Mason, who promptly withdrew it when James Madison pointed out that "so vague a term will be equivalent to a tenure during pleasure of the Senate".
Returning full circle to Rehnquist, he concludes his excellent book by stating:
"The importance of these two acquittals [Chase and Johnson] in our constitutional history can hardly be overstated. We rightly think of our courts as the final voice in the interpretation of our constitution, and therefore tend to think of constitutional law in terms of cases decided by the courts. But these these two "cases"--decided not by the courts but by the United States Senate--surely contributed as much to the maintenance of our tripartite federal system of government as any case decided by any court."
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment