Studying Jefferson's Impeachments

Here’s why I love what I get to do. The national impeachment crisis over the presidential behavior of Donald Trump has turned us all back to our history books. I have, but have not yet read, several of the recently published books on impeachment, one with chapters by Peter Baker of the New York Times and Jon Meacham, America’s latest favorite presidential historian.

I would urge everyone who is listening to read one or more of these books. Impeachment is a grave constitutional remedy. We gain insights by looking at previous impeachments.

My now lifelong commitment to Thomas Jefferson gives me reason to take special interest in national events that otherwise might escape my notice. We are all busy. We don’t have much time to read and when we do, we tend to read things that gives us pleasure rather than intellectual or moral pain.

To get ready for today’s program I reread the key chapters in several studies of Jephson: David Mayer’s The Constitutional Though]t of Thomas Jefferson and James F. Simon’s excellent, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic struggle to Create a United States.

Jefferson was involved in two impeachments of federal judges. The first was Justice John Pickering of New Hampshire. An able and influential man, now unfortunately compromised by alcoholism, neglect of official duties, and even actual insanity, was impeached in 1803 and removed by the United States Senate. Even Jefferson realized that the Constitutional remedy of impeachment was an extremely imprecise tool for what needed to be done, because alcoholism and insanity did not constitute high crimes or misdemeanors. But it was clear that Pickering had to be removed, and impeachment was the only available remedy. He was convicted by the Senate on March 12, 1804 and removed from office. But here’s the most important fact. The vote was on strictly party lines. All Federalists in the Senate voted to acquit, even though they knew Pickering was insane and could not really be trusted as a United States judge. Think of that. All Federalists, knowing he must be removed, voted to acquit, so great was their disdain for the Republican majority.

Then came the impeachment of Supreme Court Justice Samuel Chase. Here the Federalists were on much better ground. Chase was an angry, outspoken, abusive justice who harangued grand juries, bullied witnesses, gave anti-Jeffersonian lectures from the bench, engaged in questionable rulings, and generally turned his judicial office into a bully pulpit from which to propound his anti-democratic opinions. He had made some rulings that were questionable from a legal and judicial point of view. He had presided, in a highly prejudiced way, in the Sedition trail of James Callender, who was first a Jefferson defender and later, as you know, a Jefferson hater. Calle3nder was the man who broke the Sally Hemings story in September 1802 and tried to blackmail Jefferson into giving him a plumb federal job.

So, Samuel Chase, a signer of the Declaration of Independence, was an obnoxious man, and he was certainly having a distorting impact on cases that came to his courtroom, but was that enough to impeach him?

The answer is no. Even though Virginia congressman John Randolph, an eccentric genius, went after Chase with every legal and rhetorical tool at his disposal, Chase was acquitted on each of the eight charges leveled against him by the House of Representatives, even though the Republicans had enough Senators to vote guilty on each of the counts. In other words, if there had been a strict party vote, Chase would have been removed. That would have set a precedent that might have altered the course of American judicial and political history. But enough Republican Senators were wary of using impeachment as a political tool that they refused to evict Chase, whom they loathed as a vicious partisan bully. 
What does all of this tell us? First, the party in power has a harder time maintaining strict party discipline than the party in opposition, which is often nakedly partisan in its response, irrespective of the facts. If you won’t vote to remove John Pickering, whom will you ever remove?Second, the Founding Fathers gave us a very problematic impeachment clause. Pickering had not committed any high crimes or misdemeanors. The Founders did not provide a clear mechanism to get rid of an alcoholic, a person who was mentally ill, a person who had abused his office without committing a definable crime. We’d be much better off in a parliamentary system on these occasions. In that case, the parliament (say a majority of both house) would subject the executive to a vote of confidence or no confidence. If the executive lost the vote, he or she would be removed. This is how the British do things, and many other parliamentary democracies, and it works.

Third, in each of these judicial impeachments lawyers argued in a learned way about what constitutes an impeachable act. Lawyers for Samuel Chase insisted that he could only be impeached if he had committed an indictable crime. Lawyers for the prosecution argued that the impeachment clause had to have a wider application than that, or it was not a tool that could protect us from a tyrant who outraged the c constitution in all sorts of ways but did not commit a crime that had been defined by government.

So, what should we conclude from a study of the impeachments of the Jefferson administration 1801-1809? The central conclusion one draws is that impeachment is a muddle. Jefferson himself called it a “Bungling way” after the Pickering trail, which ended as he had wanted it, but left a bad taste in many thoughtful Senator’s mouths because Pickering was not a criminal. After two hundred years, no matter what the constitutional scholars say, we don’t really know what constitutes an impeachable act, because we have never had a successful impeachment of a president of the United States. Bill Clinton lied under oath—he perjured himself—and yet he was acquitted by the Senate. Donald Trump has done some dastardly things, but it seems inevitable that he will be acquitted by the Senate, and along strictly partisan lines among the Republicans and along mostly partisan lines among the Democrats.

And then where will we be? That will more or less kill of the impeachment clause once and for all. In other words, the only way for us to preserve a republican form of government will be if the president is evicted, whether or not you think he is bad enough to deserve removal. When impeachments inevitably fail because the party on the defense refuses to look at the charges in a purely constitutional manner, you may as well erase the impeachment clause altogether. Meanwhile, you have wasted the public’s time and not addressed energy policy, immigration policy, health care, and global climate change.

If a handful of Federalist had been willing to remove the insane alcoholic John Pickering, I would have some faith in the system. Perhaps the greatest takeaway from a historical survey like this is that naked partisanship is not something new in 2019. It has been the fundamental truth of the American political system from the very beginning. And to that all I can say is.

Alas. Alas.

Alas.

---