Professor Alan Dershowitz is now a member of President Donald Trump's defense team, and others have taken the position that unless the president had committed a convictable crime there cannot be a constitutional high crime or misdemeanor. Although the terms “high crimes and misdemeanors” may seem vague to us today, the founders made it clear at the time that an impeachable offense need not be a crime or a convictable offense – they felt that impeachment may be warranted between elections because, as Madison warned: “[The President] might pervert his administration into a scheme of peculation [self-dealing] or oppression. He might betray his trust to foreign powers”
Whereas the framers gave the sole power to impeach to the House of Representatives, they did not entirely trust the democratically elected House to wield the enormous power of removing an elected president. Our founders feared that the passions surrounding an impeachment would, as Alexander Hamilton noted: “Incite the whole community and divide it into parties more or less friendly to the accused.” He and the delegates to the convention felt you cannot entirely trust a popularly elected House to remove a president because the members “more likely to be biased in their judgement particularly if it is the leaders of the parties that are the subjects.” Hamilton felt the Senate could be trusted as an unelected appointed body not subject to partisan political forces – but today that is not how our senators are chosen.
At the time the Constitution was ratified, the Senate was appointed by each state legislature. It was supposed to be populated by that state’s most distinguished citizens usually of substance, intellect, and property. The Constitution required that they be older than House members and elected for longer terms so that they would be largely independent of public opinion. Although our founders respected democratic elections, they thought of the Senate as being an "auxiliary precaution” against majoritarian rule - the pillar of the republic’s system of checks and balances. The founders decided that the Senate and not the House would be the body that would try the president. The reason, given by Hamilton: “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?”
It was not until 1868, 80 years after the ratification of the Constitution, that the Senate was put to its test of being “sufficiently independent.” It was in the impeachment trial of President Andrew Johnson, who assumed the presidency after the assassination of President Abraham Lincoln. Lincoln had picked Johnson, a Southern Democrat, as his vice president in an attempt to heal a nation divided by secession. The Senate, then controlled by the Republicans, resented Johnson for vetoing legislation designed to protect the rights of freed slaves. However, the primary impeachment charge against the president was his violation of the Tenure of Office Act (later declared to be unconstitutional) when, in defiance of the act, Johnson removed Edwin M. Stanton as secretary of war.
Johnson’s impeachment trial for removing one of his cabinet members was certainly not a criminal act. Indeed, in his speech before the Senate, Benjamin Curtis, a former Supreme Court justice acting as the chief lawyer for Johnson at his Senate impeachment, argued that “There can be no crime, there can be no misdemeanor, without a law, written or unwritten, express or implied. “ Although Curtis was unsuccessful in his effort to dismiss the charges against Johnson, this is the same argument raised today in Trump’s defense by Dershowitz. At Johnson’s trial, a packed Senate chamber listened for three months to the testimony of 25 prosecution and 16 defense witnesses. Although Republicans had more than the requisite two-third’s vote to convict, seven Republicans voted against conviction with the final vote falling one short of removing the president.
The Senate had proven its independence from partisan rule in the Johnson impeachment trial. But that was before the enactment of the 17th Amendment which did away with the appointed Senate designed by the framers. Since the enactment of that amendment in 1913, the Senate is elected by the majority of the electorate in each state, and few senators are expected to be nonpartisan. The question, which will soon be answered, is whether the Senate can be, in Hamilton’s words: “a tribunal ... sufficiently independent”
The acquittal of Trump may be inevitable, but the impeachment process should not be undermined or its importance diminished. The Constitution has imposed a constitutional obligation on the Senate of independence that must be properly discharged.
Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.