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Commentary

Commentary

2.1

Moving forward to Article II (executive), we come to what has been seen as the constitution's most crucial impeachment passage. Article II, section 4, states:

The President, vice-President and all other 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.

The conventionally accepted reading of this passage is that “Conviction” refers to conviction by the Senate, since the Senate has “the sole Power to try all impeachments.”.

As Senator John Edwards might say: “Not so fast.”

We'll revisit the use of the word “sole” in Article I. First, let's move forward to Article III, concerning the Judiciary, where the last paragraph of Section 2 states:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...

The conventional interpretation has been that in this passage, the restrictive clause “except in Cases of Impeachment” simply confirms that these cases are tried by the Senate. However, there is an equally reasonable alternative interpretation. This restrictive clause is both a) a recognition that some Judiciary trials may be of people who by their actions are subject to the judicial power and have also been impeached by the House, and b) an explicit provision to deny these people the right to a trial by jury, in recognition of the weight that must be given to the national interest of having office holders who are not criminals. According to this alternative interpretation, any individual who accepts the honor of serving as a civil officer in our government surrenders the right to judicial criminal trial by jury if impeached on criminal grounds.

Let's now return to examine Article II, and ask this simple question: what happens if a federal civil officer is a) impeached by the House on criminal grounds within the scope of Article II, and b) convicted in a Judiciary criminal trial?

When you look at this crucial constitutional passage, the answer that emerges is different from the conventional answer that only the Senate can remove from office. Instead, we see that with the word “shall” this passage simply establishes a minimum consequence. Whenever a civil officer is impeached, and convicted -- by Judicial or Senate trial -- then whatever else happens, removal from office is required. Therefore, following House impeachment on criminal grounds, there are two possible trial venues that can cause removal from office: a) decriminalized Senate impeachment trials, and b) Judiciary criminal trials of “Cases of Impeachment.”

It is important to emphasize two points. First, we are talking about two different kinds of trials, conducted by two separate branches of the federal government. Either trial – a Senate impeachment trial or a Judicial criminal trial -- can proceed independent of the other. Second, we must keep clearly in mind that neither trial can commence until the House has voted to impeach. We're not talking about a group of out of control judges here. Impeachment has always been recognized as having a political element. The prerequisite of a House impeachment vote for all “cases of removal,” whether tried by the Senate (impeachment) or by the Judiciary (criminal), makes impeachment ultimately accountable to the American people, as it should be.

Both the language and structure of our constitution, and the 1787 constitutional convention proceedings (as represented by Madison's Notes), show clearly that a judicial trial venue for removal of civil officers following House impeachment on criminal grounds is a deliberate, intended provision of our constitution. For most of the convention's proceedings, impeachment trials were to be assigned to the Judiciary. On September 4^th, about two weeks before the signing, language was presented to the convention that transferred impeachment trials to the Senate. The draft language, which parallels the final constitutional text, stated: “... removed from his office on impeachment by the House of Representatives, and conviction by the Senate, for...” On September 8^th, Madison, our fourth president, and known as the “father of the constitution”, introduced a motion to delete the restrictive phrase “by the Senate.”

The motion failed. Of course many initial attempts at many things fail.

Madison was no quitter. He continued with his effort to remove the restrictive phrase “by the Senate,” and thus to provide for a judicial means of removal from office. On the same day that his initial effort to delete “by the Senate” failed, Madison was appointed to the five-person committee assigned to produce the final draft constitution. When it emerged, the restrictive phrase “by the Senate,” was gone -- never to return.

This deletion, as with several other rearrangements and re-wordings, indicates a clear intent to provide, as described above, two venues, for two kinds of trials.

Two further issues can now be addressed. First, regarding the word “sole” in the Article I Section 3 provision:

The Senate shall have the sole Power to try all Impeachments

The word “sole” has been understood to provide that only the Senate has impeachment-based power to remove people from office. The operation of this word fits reasonably well with the conventional understanding of impeachment. However, in the context of this new constitutional theory, there is an equally if not better alternative construction of the function of the word “sole.” Some additional background is required.

We have already seen what Madison apparently did with the Article II (executive) restrictive clause “by the Senate” after the Senate was assigned the power to try impeachments. Considerations driving this reassignment of impeachment power included a perception that was growing toward the end of the convention: at least initially, the judiciary was likely to be the weakest of the three branches, and would thus potentially be less credible than the Senate in standing up to abuses of power. A second important consideration in the final structure and arrangement of provisions was this: while (as noted), English impeachment trials were conducted by the House of Lords (with structural parallels to the U.S. Senate), there was no independent judicial branch of government in England. Assumptions about the function and scope of this newly independent branch could thus not be made with reference to England – there was no parallel.

In this context we can now see a reasonable, if not better, alternative construction of the word “sole” in the Article I provisions regarding the Senate. The constitution establishes two kinds of trials: a) decriminalized impeachment trials, with consequences limited to removal and disqualification from office, and b) criminal trials, which are to be conducted by the Judiciary, a newly established independent branch of government not present in England. Of these two kinds of trials, the Senate has the “sole” power to conduct impeachment trials per se, with consequences fully specified and limited in Article I (legislative). The Judiciary is to conduct “the trial of all crimes,” with the emphasis on all, and with a limitation specified in Article III (judiciary): that in “Cases of impeachment” no jury is required.

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