US founding father Alexander Hamilton would probably counsel president Donald Trump to come up with a better defense than the one offered by Trump’s attorneys ahead of his looming Senate impeachment trial.
Trump’s primary argument—issued in a response to the House impeachment trial brief and summons he received this weekend—is that the impeachment is bunk because the articles fail to allege a “violation of law or crime, let alone ‘high crimes and misdemeanors’ as required by the Constitution.” The president also complains that he’s been deprived of due process, relying on the standards outlined for criminal trials.
The historical record, however, doesn’t support Trump’s position that the two processes must mirror each other in form or function. Some have even called comparisons between impeachment and criminal proceedings “bogus” and “bad-faith arguments.”
Hamilton saw this coming. The prolific lawyer illuminated Trump’s claims, albeit indirectly, in Federalist No. 65, a seminal essay in the 1788 Federalist Papers. In the essay, Hamilton made it clear that political impeachment proceedings are necessarily treated unlike crimes in court, substantively and procedurally.
The essay explains the framers’ thinking on impeachment, as their reasoning had evolved over weeks of debate at the 1787 Constitutional Convention in Philadelphia. It shows that political and criminal prosecutions are neither inextricably intertwined nor mutually exclusive. A president can be impeached for abuse of power in office, followed by a criminal prosecution or not. What offends the Constitution isn’t identical to a statutory crime. Hamilton noted of impeachment:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
The emphasis on “political” exists for a reason. Hamilton and his fellows had engaged in long and heated arguments about this particular prosecution process. Initial resistance to impeachment by some attendees—for fear it would be used to cow public officials—was eventually overcome when Constitutional Convention representatives explicitly agreed there had to be a distinct way to censure abuses of office and remove offending public servants, separate from criminal prosecutions and elections.
“High crimes and misdemeanors”
Article II, section 4 of the Constitution provides that “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The meaning of the last clause, “high crimes and misdemeanors,” has been widely disputed for centuries.
It’s still not obvious. But legal scholars generally agree that misdemeanor in this context doesn’t refer to petty offenses in the criminal law sense, but to any serious malfeasance that interferes with presidential duties and endangers the nation. As Georgetown University Law Center professor Susan Low Bloch told Quartz last year, “Impeachment isn’t criminal law. It’s a political remedy.”
The two processes also deliberately differ in form and function. Hamilton explained that impeachment should be tried by a numerous body of representatives, like the Senate, which is why the Supreme Court doesn’t handle impeachment. The high court doesn’t have enough justices or the right authority and “credit” in this context to ensure the political process reflects the people’s will.
Hamilton pointed out, too, that “the necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding.” An impeachment is deliberately unlike a criminal trial because it exists for different reasons and so must be handled distinctly procedurally. “[Impeachment] can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases,” Hamilton wrote.
Thus, the Trump team’s reliance on a defense that he committed no crime—and was deprived of due process during the inquiry to boot!—is disingenuous or ill-informed.
Federalist No. 65 is explicit. The political prosecution process isn’t bound by the conventions of criminal cases. While presidents can be criminally prosecuted for offenses, that doesn’t limit impeachable offenses to crimes, nor does a Senate trial substitute for a criminal prosecution. Hamilton explains:
The punishment which may be the consequence of conviction upon impeachment, 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.
Crime and punishment
The framer’s take on what’s at stake in the two different proceedings further emphasizes the distinctions. Hamilton refers to the judges of an impeachment as “disposers of [the impeached’s] fame” and to judges of crimes as “disposers of his life and fortune.” The outcomes will differ—impeachment is political and meant to protect the people and government, so its most severe punishment is removal and censure. Impeachment stains a reputation but isn’t a criminal prosecution, which can jeopardize life, liberty, fortune, and more.
Yet Trump and his defenders are continually muddying the waters by claiming the president’s actions don’t rise to the level of crime, as if this was the proper criteria. Most recently, Harvard University constitutional law scholar and Trump defense team member Alan Dershowitz claimed that even if the president did everything the impeachment brief accuses him of doing—that is, using his pubic office to solicit a personal favor from a foreign government and thereby jeopardizing the integrity of national elections and security—it’s not grounds for removal because his were “non-criminal actions.”
That position isn’t supported by the historical record, and if Hamilton was around to debate on the Sunday talk shows, he’d surely give Dershowitz and the rest of the Trump legal team an earful.