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01/25/2020

James Freeman on Impeachment History
Michael Ramsey

In the Wall Street Journal, James Freemen: More Fun with Impeachment History (responding principally to this article by Charles Savage in the New York Times).  From the introduction:

On Thursday this column noted the effort to suggest that Alexander Hamilton would endorse the current partisan adventure. But he’s not the only one being posthumously and dubiously enlisted in the anti-Trump campaign.

The basic idea is to suggest that partisan allegations of non-crimes are completely consistent with the history of impeachment. Charlie Savage writes this week in the New York Times:

One precedent — a high-profile case against a former British governor-general in India named Warren Hastings accused of mismanagement, mistreatment of locals and military misconduct — unfolded during the drafting and ratification of the Constitution and was reported in American newspapers.
His chief prosecutor, the famous parliamentarian Edmund Burke, argued that Mr. Hastings’s actions violated the public trust even though they were not indictable. (Mr. Hastings was acquitted, but only many years later.)
The original draft of the Constitution had made only treason and bribery a basis for impeachment. But according to James Madison’s notes of the Constitutional Convention, George Mason brought up the Hastings case and proposed expanding the definition of impeachment to cover something like it. After rejecting the term “maladministration” as too broad, the convention participants decided to add the English term “high crimes and misdemeanors.”

A closer reading of that moment in history shows that Mason only said that Hastings wasn’t guilty of treason, not that he hadn’t committed any crimes. Readers will also note in the relevant passage that Madison explicitly warned against the type of case now occurring in the U.S. Senate. ...

RELATED: Lots of impeachment-related commentary at Volokh Conspiracy, from Josh Blackman (summarizing his op-ed in the New York Times), Ilya Somin and Jonathan Adler in response.  It's mostly pragmatic, though, rather than originalist.