Hamilton on Impeachment (Updated)

It's worth re-reading Federalist 65 (among others).

Impeachment is the subject of Federalist 65 by Alexander Hamilton. It has some interesting things to say on what constitutes an impeachable offense, and the politics  and process of impeachment. (He has more to say about impeachment in Federalist 66 and Federalist 67 too.)

One paragraph from Federalist 65 is particularly relevant today.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Of note, this paragraph both identifies what sorts of actions constitute impeachable offenses and makes an important observation about the politics of impeachment.

On the former, Hamilton stresses that impeachable offenses—what the Constitution refers to as "Treason, Bribery and other High Crimes and Misdemeanors"—are "those offenses which proceed . . . from the abuse or violation of some public trust," as opposed to, say, violations of applicable criminal statutes or common law crimes. These reinforces Keith Whittington's point that impeachment does not require the commission of a crime. Indeed, impeachment was understood as the primary and proper remedy to the misuse of executive power, including (indeed especially) those things which lie exclusively within executive control, such as the Pardon Power.

Hamilton also notes that the prospect of impeachment is likely to activate pre-existing factions (an observation that is more interesting in that he did not seem to anticipate political parties of the sort we have today). On the one hand, this meant that the question of impeachment is one that should be "political" in that it concerns the nation as a whole, and should be contested political question. On the other, he warned of the risk that impeachment would simply be a test of which "factions" were larger or more powerful.

This risk is addressed, in part, by the separation of impeachment (which is in the House) and conviction and removal (which are to be tried in the Senate). The hope was that the Senate would be more insulated from factional pressures, and would be able to evaluate the case for or against impeachment somewhat independently. Is that a hope that can be fulfilled? Time will tell, but I'm not optimistic. Many Democrats have approached impeachment as a partisan question (as Hamilton suggested could happen), and many Republicans have responded as tribal loyalists, rather than statesmen. This is to be expected in the House. Hamilton's hope was that something better might occur in the Senate.

UPDATE: Some commenters (and e-mailers) have suggested that one reason for greater partisanship in the Senate may be the Seventeenth Amendment, which provides for the direct election of Senators. Prior to this amendment's ratification, Senators were elected by state legislatures.

There is no doubt that the shift to direct popular election of Senators has influenced Senate behavior. My co-blogger Todd Zywicki has written a fair amount about this. And it is certainly possible that the election of Senators by state legislatures might serve to insulate Senators from partisan or tribal pressures. On the other hand, it is not clear to me that state legislators are any less partisan or tribal in our present moment, so it's not clear to me how, or even whether, direct election of Senators explains the shift from what Hamilton predicted.