On Wednesday, the House Judiciary Committee will convene a panel of constitutional scholars to provide historical context for the impeachment inquiry and particularly the meaning of the Constitution’s impeachment standard of “treason, bribery, or high crimes and misdemeanors.” Were I appearing on that panel, this is what I would say: Much of the research for the statement derives from my work on “The Framers’ Coup: The Making of the United States Constitution."
On July 25, 2019, President Trump asked Ukrainian president Volodymyr Zelensky for “a favor.” Considering the evidence unearthed by the House Intelligence Committee in its totality, and keeping in mind that impeachment proceedings do not require us to suspend our common sense, it is clear that President Trump conditioned a much sought-after White House visit for the Ukrainian president, as well as the delivery of nearly $400 million appropriated by Congress for Ukrainian defense, on the Ukrainian government’s doing Trump two personal favors: The Ukrainians were to investigate a “fictional narrative” (in the words of former US ambassador to Ukraine Marie Yovanovitch) of Ukrainian interference in the 2016 presidential election. And they were to investigate what we know to be baseless allegations that former vice president Joe Biden, Trump’s political adversary, had corruptly intervened in Ukrainian politics to secure the dismissal of then-Prosecutor General Viktor Shokin (allegedly to prevent Shokin from investigating corruption at Burisma Holdings Limited, an energy exploration and production conglomerate based in Kyiv, where Biden’s son Hunter served on the board of directors).
Does Trump’s effort to use the power of his office to pressure a foreign government into digging up dirt on his political adversary qualify as the sort of “high crime and misdemeanor” that the Framers of the United States Constitution would have deemed sufficient for impeachment and removal from office?
I shall seek to answer that question in three parts. First, how did the delegates to the 1787 Constitutional Convention held in Philadelphia decide that a president ought to be subject to removal from office upon conviction on an impeachment? Second, how did they arrive at the impeachment standard of “treason, bribery, or other high crimes and misdemeanors?” And lastly, what specific concerns lay behind the Framers’ decision to provide an impeachment mechanism — concerns that might be helpful in evaluating whether President Trump’s shakedown of Ukraine qualifies as a “high crime and misdemeanors?”
The delegates to the Philadelphia convention commenced their deliberations with the so-called Virginia Plan, which was largely the handiwork of James Madison, in consultation with his fellow Virginia delegates. On the issue of impeachment, the Virginia Plan provided only that the national judiciary would have jurisdiction, among other things, to impeach “any national officer.” No standard for impeachment and removal from office was specified.
Just one week into the convention, the delegates provisionally agreed that the president would be removable on impeachment and conviction for “malpractice or neglect of duty.” When they returned to that subject several weeks later, a small handful of delegates — 55 delegates attended at least part of the convention, though not all of them were in attendance at any one moment — objected to the very idea of making the president impeachable. These delegates — Charles Pinckney of South Carolina, Gouverneur Morris of New Jersey, and Rufus King of Massachusetts — worried that the prospect of Congress impeaching and removing a president from office would make the president too dependent upon Congress. This concern was especially acute because, for most of the convention, the delegates assumed that the president would also be selected by Congress. The whole point of creating a powerful president, which most of the Framers supported, was to check Congress — a goal that would be impossible to achieve if Congress had the power both to appoint the president and remove him from office.
King argued against any mechanism for impeaching the chief executive on the ground that the president would be “tried for his behavior by his electors, who would continue or discontinue him in trust according to the manner in which he had discharged it.” King thus saw no need for any “intermediate trial by impeachment.” He distinguished federal judges, who would hold office during “good behavior” (i.e., for life), and thus should be subject to removal from office through impeachment. Only if the president were to have lifetime tenure — which King actually favored — rather than a tenure of much shorter duration, would King support a provision for impeaching the president.
Opposition to any presidential impeachment mechanism was a distinctly minority position at the convention, and a bevy of delegates rose to express strong support for presidential impeachment. William Davie of North Carolina called impeachment an “essential security for the good behavior of the executive,” who, without such a safeguard, would “spare no efforts or means whatever to get himself reelected.” James Wilson of Pennsylvania, one of the convention’s strongest proponents of a powerful chief executive, “concurred in the necessity of making the executive impeachable whilst in office.” George Mason of Virginia, who had written his state’s bill of rights in 1776, denied that any man should be “above justice” and opined that “[n]o point is of more importance than that the right of impeachment should be continued.” Mason offered “a peculiar reason” in favor of impeachment: “Shall the man who has practiced corruption and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?” Edmund Randolph, the governor of Virginia, stated that “[t]he propriety of impeachments was a favorite principle with him,” as “[g]uilt wherever found ought to be punished,” and “[t]he executive will have great opportunities of abusing his power, particularly in time of war when the military force, and in some respects the public money, will be in his hands.”
James Madison explained, as a president ‘might lose his capacity after his appointment’ or ‘“might pervert his administration into a scheme of peculation or oppression’ or ‘betray his trust to foreign powers.’
Benjamin Franklin, the oldest delegate at the Philadelphia convention and perhaps the most famous man in the world at the time, agreed that an impeachment mechanism was essential to avoiding “the most violent animosities and contentions” that would occur in the absence of “a regular and peaceable inquiry” into allegations of wrongdoing by the chief executive. James Madison, the one individual most responsible for the existence and success of the Philadelphia convention, “thought it indispensable that some provision be made for defending the community against the incapacity, negligence or perfidy of the chief magistrate.” Limiting the president’s term of service “was not a sufficient security,” Madison explained, as he “might lose his capacity after his appointment” or “might pervert his administration into a scheme of peculation or oppression” or “betray his trust to foreign powers.” Unlike with regard to corrupt or incompetent congressional representatives, Madison argued, the executive branch would be administered by a single man and thus “loss of capacity or corruption” could prove “fatal to the republic.”
Tellingly, after this onslaught of criticism from other delegates, Gouverneur Morris, one of the strong presidentialists who had originally opposed any mechanism for presidential impeachment, admitted that his “opinion had been changed by the arguments in the discussion,” that “[h]e was now sensible of the necessity of impeachments” if the president was to enjoy a significant term in office, and that he believed the president ought to be impeachable “for treachery, corrupting his electors, and incapacity.”
After this debate, the convention agreed by a vote of eight states to two that the president should be impeachable, though the delegates did not at this point discuss the impeachment standard. To summarize, the Philadelphia convention explicitly rejected the argument made by just a few delegates that the president should not be removable from office through impeachment. Thus, impeachment is not a coup; it is not an overthrowing of the will of the voters. It is a check deemed essential by the Founders to ensure that the president remain accountable for abuses of his office.
While the delegates easily agreed that the president should be subject to impeachment and removal from office, they proved more divided over the appropriate substantive standard for impeachment. As already noted, their deliberations on this issue began with a standard of “malpractice or neglect of duty.” Yet some delegates pointed out that such a low threshold for impeachment would make the president overly dependent on Congress, which the convention ultimately decided would be the institution determining whether he should be impeached and removed from office. Some such delegates favored limiting impeachment simply to “treason or bribery” — the worst transgressions they could imagine a president committing. Their paradigm case was the president’s selling off the interests of the country for a foreign pot of gold.
Yet other delegates responded that the president could commit egregious abuses of office that nonetheless fell short of “treason and bribery.” The Committee of Detail, which converted resolutions already endorsed by the delegates into a first draft of the Constitution, added “corruption” to “treason and bribery” as a ground for removal from office on an impeachment. Another committee then deleted “corruption,” which led George Mason to object that there were many “great and dangerous offenses” that might “subvert the Constitution” and thus warrant impeachment without constituting treason or bribery. His proposal to add “maladministration” to the impeachment standard was opposed by Madison, who worried that such a “vague” term would amount to “a tenure during pleasure of the Senate.” Mason then withdrew his motion to add the word “maladministration” and proposed instead to add “other high crimes and misdemeanors.” The convention then approved this change, without further recorded debate.
“High crimes and misdemeanors” was a term of art that the delegates borrowed from British practice and from state constitutions. Lay people today may be surprised to learn that impeachment for “high crimes and misdemeanors” clearly did not require a crime, an indictable offense. Rather, as Alexander Hamilton explained in Federalist No. 65, the only one of the Federalist Papers to specifically explore the impeachment standard, impeachment for “high crimes and misdemeanors” was appropriate for “the abuse or violation of some public trust” — i.e., “injuries done immediately to the society itself.” Thus, in British practice, ministers and other government officials had been impeached for actions as varied as misappropriating government funds, not spending money allocated by Parliament, disobeying an order from Parliament, and appointing unfit subordinates.
If the Framers did not mean to limit the category of impeachable offenses to indictable crimes, which criteria informed their impeachment standard of “treason, bribery, or other high crimes and misdemeanors”? Their underlying concerns can be distilled into three related concepts:
- “corruption,” a term to be defined momentarily,
- especially in the context of interference by foreign nations in American governance, and,
- specifically in the context of elections.
The Framers’ concern with “corruption” pervaded the Philadelphia convention and the Constitution that it wrote. Indeed, as already noted, at one point in the convention “corruption” had been part of the standard for impeachment. What the Framers meant by “corruption” is relatively straightforward: abusing public office to pursue personal interests rather than the common good. The Framers regarded corruption as a tremendous evil. As George Mason told the Philadelphia convention, “If we do not provide against corruption, our government will soon be at an end.”
Several provisions of the Constitution were designed specifically with this concern about corruption in mind. For example, the Framers’ ultimate decision to vest the power of removal through conviction on an impeachment in the Senate rather than the Supreme Court was partly responsive to concerns about corruption. As Gouverneur Morris told the delegates, the Supreme Court, because of its smaller size, “might be warped or corrupted” in an impeachment trial.
Similarly, the Framers put into the Constitution an Incompatibility Clause, barring congressional representatives and senators from holding executive office simultaneously, and an Ineligibility Clause, barring the appointment of members of Congress during the period for which they were elected to any federal civil office that had been created, or for which the salary had been increased, during their term in office. The point of these provisions was to reduce “the venality and abuses” — in Mason’s words — that had plagued the British system, where the king was perpetually offering well-paid executive offices to Members of Parliament in order to influence their votes.
The Framers had a special concern with regard to corruption in the presidency.
A president, unlike a king, was unlikely either to be the richest man in the country or to have his very identity suffused with that of the nation. These differences would make presidents more vulnerable than monarchs to bribes to betray the nation’s trust. As Alexander Hamilton explained at the Philadelphia convention: “The hereditary interest of the king was so interwoven with that of the nation, and his personal emoluments so great, that he was placed above the danger of being corrupted from abroad.” Charles Cotesworth Pinckney of South Carolina offered a very similar explanation for why the Framers had divided the treaty power between the Senate and president, rather than giving it to the president alone. (In Great Britain, the king could make treaties without Parliament’s participation.) As Pinckney explained, a king was probably invulnerable to bribery, while a president might be able “to live in greater splendor in another country than his own.” In addition, a king’s identity was so tightly connected with that of his country that he was probably not susceptible to a bribe, while a president might be because “he was no more interested in the prosperity of his country than any other patriotic citizen.”
Because of this special concern about corruption in the presidency, the Framers inserted into the Constitution two different Emoluments Clauses. The Foreign Emoluments Clause bars anyone holding any office of profit or trust under the United States (including the president), from accepting, without the consent of Congress, “any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign state.” The Domestic Emoluments Clause forbids the president specifically from receiving, in addition to his fixed salary, “any other emolument from the United States, or any [state].” In addition, the Constitution forbids Congress from increasing or decreasing the president’s salary while in office, so that his decision making will not be influenced by Congress’s dangling financial incentives before him.
The Framers enacted a mechanism for impeaching and removing the president to prevent his behavior in office from being influenced by his personal interests rather than considerations of the public good. As James Iredell, later appointed by President George Washington as one of the original Justices on the United States Supreme Court, explained at the North Carolina ratifying convention, impeachment was for errors “of the heart, and not of the head.” The president could not be impeached for “want of judgment.” However, “if a man be a villain, and willfully abuse his trust,” then he could be removed from office through conviction on an impeachment.
If the Framers were principally concerned with corruption — abuse of office for personal ends — their secondary and related concern was with the corrupting effect of foreign influence. As Hamilton explained at the Philadelphia convention, “One of the weak sides of republics was their being liable to foreign influence and corruption. Men of little character, acquiring great power, become easily the tools of intermeddling neighbors.”
The Framers’ fear of foreign meddling was evident in their reaction to the greatest faux pas committed at the Philadelphia convention. In the context of a debate over how to apportion representation in the upper house of the national legislature, Gunning Bedford, a delegate from the small state of Delaware, warned that if large-state delegations did not agree to equal representation in that body, small states would have little choice but to “find some foreign ally of more honor and good faith, who will take them by the hand and do them justice.”
The prospect of soliciting foreign intervention in American affairs was so anathema to most of the delegates that Bedford’s threat was immediately and roundly denounced. Rufus King declared himself “grieved that such a thought had entered into his [Bedford’s] heart,” and Madison likewise decried the “rash policy of courting foreign support.” Taken aback by such denunciations, Bedford apologized for the “warmth” of his remarks, which he attributed “to the habits of his profession” — he was a lawyer, of course — and disingenuously claimed that he had been misunderstood and that he “did not mean that the small states would court the aid and interposition of foreign powers.”
Hamilton further elaborated on this concern about foreign influence and corruption in Federalist No. 22: “In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust. ... Hence it is that history furnishes us with so many mortifying examples of the prevalenc[e] of foreign corruption in republican governments.” Hamilton then enumerated instances in which European nations had interfered in one another’s affairs through corrupt means. For example, France and England had used such influence to “buy” the parties in Sweden. In the United Provinces of the Netherlands, Hamilton added, public officials had “been purchased by the emissaries of the neighboring kingdoms.”
John Jay, who was Secretary for Foreign Affairs for much of the period in which the United States was governed by the Articles of Confederation — 1777 to 1787 — spoke with special authority on the evils of foreign intervention in American political affairs. In a letter to Thomas Jefferson in late 1786, Jay worried that the Shays rebels in Massachusetts — who had shut down civil courts in parts of the state in protest against the state’s strict fiscal and monetary policies that left them at risk of financial ruin — were enjoying foreign support. Less than a month later, Jay wrote to George Washington, explaining that simply to grant greater powers to Congress would not adequately remedy the defects in the Articles of Confederation because members of Congress would remain vulnerable to foreign influence. During the debate over ratification of the Constitution, Jay argued strenuously against the demands of ratification opponents for a second constitutional convention on the ground that it would be vulnerable to foreign influence. Jay explained that other nations, “jealous of [the] growing importance of the United States, and fearful that our commerce and navigation would impair their own,” would try to obstruct such a convention in order to perpetuate a weak national government in the United States.
The depth of the Framers’ concern with foreign intervention in American affairs through corrupt means was evident in the Philadelphia convention’s debates over how long a period of citizenship to require for congressional representatives and senators. Arguing against a requirement of only three years’ citizenship for congressional representatives — as provided by the Committee of Detail — George Mason favored extending that period to seven years, for fear “that a rich foreign Nation, for example Great Britain, might send over her tools who might bribe their way into the Legislature for insidious purposes.” The delegates then overwhelmingly approved Mason’s motion. Charles Pinckney invoked a similar argument in defense of a motion to extend the length of the citizenship requirement for United States senators from four to fourteen years — the delegates eventually settled upon a nine-year requirement — noting the “peculiar danger and impropriety” of opening the doors of the Senate to “those who have foreign attachments,” given that this body would play a role in making treaties and managing foreign affairs. Elbridge Gerry of Massachusetts went even further, arguing that in the future, eligibility for congressional service “might be confined to natives,” given that “[f]oreign powers will intermeddle in our affairs, and spare no expense to influence them,” and that “[p]ersons having foreign attachments will be sent among us and insinuated into our councils, in order to be made instruments for their purposes.”
The Framers’ concern that presidents would be vulnerable to foreign corruption was especially acute with regard to election meddling. As Hamilton explained in Federalist No. 68, which discusses the mode of selecting the president:
“Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendan[ce] in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”
In the course of a debate at the Philadelphia convention over the method of selecting the president, Madison argued against congressional selection — which was the method tentatively agreed to by the delegates throughout most of the convention — on the ground that foreign ministers would use the opportunity to seek to influence the selection of the president. As limited as the president’s powers would be relative to those of a king, Madison observed, those European powers vested with possessions in the western hemisphere would deem it “an object of great moment” to “have at the head of our government a man attached to their respective politics and interests.” Madison warned that “[n]o pains, nor perhaps expense, will be spared, to gain from the Legislature an appointment favorable to their wishes.” Madison raised the same objection to state governors’ choosing the president—another method of selection considered at the convention. Only selecting the president by popular vote or through special electors, Madison argued, could eliminate this concern of foreign influence.
Indeed, the electoral college method of selecting the president was designed specifically to counteract the risk of foreign intervention. As Hamilton stated in Federalist No. 68, selection of the president under the Constitution would not “depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes.” In addition, to exclude “any sinister bias,” the Framers barred federal officeholders from serving as electors. In addition, as Madison explained at the Philadelphia convention, the electoral college system afforded “very little opportunity for cabal or corruption” (foreign corruption is what he emphasized in this speech), because the electors would meet but once and “proceed immediately to an appointment,” they would meet in their respective states—rather than in the nation’s capital, where it would have been easier to corrupt then en masse—and these meetings would take place throughout the nation on the very same day.
Indeed, the electoral college method of selecting the president was designed specifically to counteract the risk of foreign intervention.
However, critics of the Constitution were not persuaded that the Philadelphia convention had taken sufficient steps to prevent foreign influence upon the election of the American president. When Jefferson first saw a draft of the Constitution in Paris, where he was serving as American ambassador to France, he expressed “strong dislike” for the “perpetual re-eligibility of the President” (not changed until the 22nd amendment, adopted in 1951, limiting presidents to two terms), which would “be productive of cruel distress to our country, even in your day and mine,” as “the importance to France and England to have our government in the hands of a Friend or a foe, will occasion their interference by money, and even by arms.” In similarly criticizing the Constitution for omitting presidential term limits, George Mason warned that the great powers of Europe would “be interested in having a friend in the President of the United States.” As an illustration of the problem, Mason noted that Prussia and Russia had manipulated the selection of the King of Poland, and he argued that European nations would have an even greater interest in influencing the election of the American president. Future president James Monroe made a similar point at the Virginia ratifying convention: European nations, especially those with territories in the Americas, would “by their powers and intrigues,” seek to influence the president’s election “in order to make him serve their purposes.”
Trump’s Ukraine shakedown hits the trifecta of the Framers’ impeachability concerns. The president acted from corrupt motives — conditioning both a White House visit for Zelensky of Ukraine and the delivery of nearly $400 million in Ukrainian defense aid appropriated by Congress. In return, Trump expected Zelensky investigate a “fictional narrative” of Ukrainian interference in the 2016 presidential election and Ukraine’s digging up dirt on Trump’s political rival, Joe Biden (dirt that, it should be emphasized, does not actually exist and thus would have to be manufactured).
Abuse of office for personal gain was at the core of the Framers’ conception of “corruption.” The president encouraged foreign interference in American affairs, and Trump solicited that foreign intervention specifically with regard to an American election. In the process of doing so, the president repeated his transgressions of three-to-four years earlier, when he and his campaign encouraged and sought to benefit from Russia’s “sweeping and systematic” (in the words of the Mueller report) interference in the 2016 presidential election.
If Trump’s Ukrainian shakedown does not qualify as a “high crime and misdemeanor,” it is not clear what would.
Michael J. Klarman teaches constitutional law and constitutional history at Harvard Law School.