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Thursday, January 23, 2020

ANALYSIS/OPINION:

When the impeachment process was first raised at the 1787 convention in Philadelphia, it led to a furious argument among the delegates.

“One of the most hotly debated clauses in the Constitution deals with the removal of federal government officials,” writes Scott Bomboy, the editor in chief of the National Constitution Center.


“But what did the Founders who crafted that language think about the process and its overall intention?”

“The need for the ultimate check, and in particular the removal of the President, in a system of checks and balances was brought up early … in Philadelphia,” he tells us. “Constitutional heavyweights such as James Madison, Benjamin Franklin, James Wilson and Gouverneur Morris debated the impeachment clause at the convention, and Alexander Hamilton argued for it in The Federalist after the convention,” Mr. Bomboy writes.

President Trump, and his White House allies, insist he has done nothing wrong. But a House investigative panel produced texts of phone conversations Trump had with Ukrainian President Vlodymyr Zelensky, in which Mr. Trump said to Mr. Zelensky that “I would like you to do us a favor …”

The favor Mr. Trump sought from Mr. Zelensky was to have his government investigate how 2016 election rival — former Vice President Joe Biden — may have helped son Hunter land a high-paying job on the board of Burisma, one of Ukraine’s largest private gas companies.

Hanging in the balance of Mr. Trump’s request was multi-million dollars in U.S. defense aid that the president had reportedly withheld, pending his requested investigation.

But Mr. Trump’s lawyers have countered such arguments, saying “The President cannot be removed from office because House Democrats deliberately misconstrue one of his commonly used phrases,” The Washington Post argued Tuesday.

“That transcript of the call to [Zelensky],” Mr. Trump’s lawyers said, “shows that the president was speaking about issues of burden-sharing among European nations as well as corruption — two foreign policy issues that not only were in his purview as commander in chief but reflected his ‘longstanding concerns’ about foreign aid,” The Post said.

“As for the obstruction-of-Congress charge, the president’s legal team called it frivolous and dangerous” because Mr. Trump, as president, had the right to argue that he was merely defending his executive privileges, The Post reported.

“Accepting that unprecedented approach [from the Democrats] would fundamentally damage the separation of powers by making the House itself the sole judge of its authority,” White House lawyers argued in their brief.

That, in some ways, echoes concerns expressed in the debate over including the impeachment clause at the 1787 convention.

Mr. Bomboy’s analysis points out that “Gouverneur Morris and Charles Pinckney were also both concerned about impeaching a President. Morris feared that a President would feel beholden to the branch of government that could impeach him, leading the President to become ‘a tool of a faction.’”

But he also points out that “They were in the minority. James Madison saw the impeachment clause as ‘indispensable … for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.”

“Elbridge Gerry stated that impeachment was needed as a check against the abuse of presidential power. “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them,” he argued.

“George Mason then refuted Morris’ argument that only the president’s assistants should face the impeachment process. “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?,” he asked.

Eventually, Morris changed his mind “on the issue of executive impeachment, and eight of the 10 delegations” approved the impeachment clause’s addition to the draft Constitution,” Mr. Bomboy writes.

“Into August and September 1787, the process became more defined. The [U.S.] Supreme Court was removed as a possible trial venue; a two-thirds vote requirement was required for conviction in the Senate; and George Mason added the words ‘high crimes and misdemeanors.’”

Yet, questions remain about the Founding Fathers final work on impeachment, the center’s Keith Whittington says in a followup essay.

“But what might fall into the category of ‘other high Crimes and Misdemeanors’ was still quite unclear.”

• Donald Lambro is a syndicated columnist and contributor to The Washington Times.


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