Impeachment is Demonstrably Redundant

To reassure the electorate there would be accountability at all levels of the government, the Framers introduced early on in the Constitution a mechanism whereby officials could be removed from power regardless of rank.

  • Article I, Section 2, Clause 5: "the House of Representatives ... shall have the sole Power of Impeachment."
  • Article I, Section 3, Clauses 6 and 7: "The Senate shall have the sole Power to try all Impeachments."
  • 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."

As to the meaning of "impeachment," there was no need for the Framers to explain it because it is an old term of English law.  The impeachment process was first used in England in 1376 against William Latimer, Fourth Baron Latimer, for a variety of alleged wrongdoings.  The charges were proven at trial; Latimer was removed from official positions, fined, and imprisoned — though he was later pardoned.  The constitutions of Virginia (1776), Massachusetts (1780), and other states followed the English precedent but restricted punishment upon conviction to removal from office.  The Convention, George Washington presiding, followed the states' precedent and made impeachment part of the Constitution, which was adopted on 17 September 1787.

The Framers might well be shaking their heads in disbelief at the current situation.  The Democrat majority in the House of Representatives passed articles of impeachment against President Trump having nothing whatever to do with "Treason, Bribery, or other high Crimes and Misdemeanors."  Obstruction of Congress?  Separation of Powers says presidents can legally refuse to do Congress's bidding, which they do when, for example, they veto legislation or assert executive privilege.  Abuse of Power?  House Democrats need a refresher course in the Constitution, which lists fairly extensive executive powers in Article II, upheld over decades by court rulings.  In any case, whatever President Trump is alleged to have done that might qualify as "abuse of power," his pen-and-phone predecessor did a lot more of it. Democrats are overlooking it now as they did then.

On the supposition that, in hindsight, the Framers would have had second thoughts about the wisdom of including the impeachment remedy in the Constitution, I will argue that they could have done without it in the first place because the Bill of Rights — ratified effective December 15, 1791 — was sufficient to accomplish the desired remedy.

Here we go.

Later known as Occam's razor, the principle of parsimony was stated by Aristotle as "other things being equal, we may assume the superiority of the demonstration that derives from fewer hypotheses."  The principle has been extended to cover all areas of inquiry, advising contributors to keep concepts and entities to the required minimum.

What about jurisprudence, where statutes are based not on laboratory experiments or observations through a telescope or microscope, but rather on agreed upon conventions that have a practical basis not always grounded in morality?  Here conceptual simplicity is a good idea, too.  It is redundant to postulate concept A whose application is intended to yield outcome O when the application of an already postulated concept B is sufficient to yield O.  Duplicative concepts slow down the administration of justice, already slow, and create confusion that can lead to mischief.

Now, consider the italicized language in the opening clause of the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury[.]"

There was also no need for the Framers to explain what they meant by "indictment" and "grand jury" because these are old terms in English law as well.  Grand juries can be traced back to the Assize of Clarendon in 1166, an act of Henry II of England.  In 1215, Article 61 of the Magna Carta defined a precursor to the grand jury.  The Framers knew perfectly well how grand juries operated and what a grand jury indictment was.  The term "indictment" in the Fifth Amendment assumed the meaning already in English law.

So the Framers need not have introduced the impeachment remedy in the Constitution when indictment in the Fifth Amendment would have been sufficient to cover the special cases they had in mind.  That is, Article II, Section 4 of the Constitution could have read instead "shall be removed from Office on Indictment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."  The House of Representatives would have been tasked to act as grand jury and, upon indictment, would have passed the matter on to a Senate jury for trial.  A guilty verdict would have led to removal.  QED.

It might be replied that impeachment is conceptually necessary after all because, in the context of the Constitution, impeachment has a narrower meaning than indictment.  The Framers intended impeachment to apply only to "civil Officers of the United States," whereas anyone can be indicted.  Moreover, the penalty upon conviction following impeachment is only removal from office, whereas conviction following indictment can entail a range of penalties, including death in a capital case, imprisonment for robbery or assault, and so on.

This reply is wide of the mark.  It makes no difference who is being indicted, on what charge, or what the penalty is if convicted.  Indictment can be circumscribed as necessary, denoting in Article II, Section 4 of the Constitution a subset of wrongdoers, infractions, and penalties upon conviction.  Impeachment is just indictment by another name.

Once indictment replaces impeachment, Fifth Amendment due process protections apply automatically.  For example, the following rights have been listed under "procedural due process" (PDP) — not to be confused with "substantive due process" (SDP):

  1. An unbiased tribunal.
  2. Notice of the proposed action and the grounds asserted for it.
  3. The opportunity to present reasons for the proposed action not to be taken.
  4. The right to present evidence, including the right to call witnesses.
  5. The right to know the opposing evidence.
  6. The right to cross-examine adverse witnesses.
  7. A decision based only on the evidence presented.
  8. Opportunity to be represented by counsel.
  9. A requirement that the tribunal prepare a record of the evidence presented.
  10. A requirement that the tribunal prepare written findings of fact and the reasons for its decision.

How does the foregoing help Senate majority leader Mitch McConnell?

  • Senator McConnell can point out, as argued here, that impeachment is not a concept in its own right, but rather is a special case of indictment.
  • Therefore, Fifth Amendment PDP rights apply.
  • As many have argued, House Intelligence and Judiciary Committee proceedings violated President Trump's PDP rights, hence the two impeachment articles the House passed on an entirely partisan vote are null and void "poisoned fruit."
  • Senator McConnell should state on the floor of the Senate that House Intelligence Committee Chair Adam B. Schiff (D-Calif.) and House Judiciary Committee Chair Jerrold L. Nadler (D-N.Y.) conducted proceedings that violated President Trump's Fifth Amendment protections.
  • Senator McConnell should then suggest that House speaker Nancy P. Pelosi (D-Calif.) withdraw the two articles of impeachment.  Otherwise, the lawfulness of the House processes that led to these articles will be the first order of business the Senate would take up, with possible referral to the Department of Justice.

Image: Gage Skidmore via Flickr.

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