Impeachment: The Founders’ Intent

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As Congress’ impeachment inquiry moves forward, critics have echoed a common refrain: the matter should be resolved not by the Congress, but by voters in the 2020 election. That argument falls flat on its face in part because the President’s betrayals involved multiple efforts to undermine the integrity of the 2020 election itself. But it also ignores another bedrock of conservative ideology: the founders’ intent.

The prospect of foreign interference was a pressing concern for our founders. At the time of our independence, the United States was a young, weak country surrounded by foreign powers and with a significant portion of its citizens and residents still loyal to foreign countries. That’s why our most famous founders toiled over how to defend the founding purpose—establishing an independent republic—against foreigners’ efforts to infiltrate our politics.

  • George Washington: In his iconic Farewell Address, warned that “against the insidious wiles of foreign influence (I conjure you to believe me, fellow-citizens) the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”
  • John Adams: In a 1787 letter to Thomas Jefferson, Adams wrote, “You are apprehensive of foreign Interference, Intrigue, Influence. So am I.”
  • James Madison: Madison was concerned about the risks of foreign interference in American political life — especially in our elections. At the first Constitutional Convention, he worried that “men of little character, acquiring great power, become easily the tools of intermeddling neighbors” and noted that “foreign influence is to be dreaded.”
  • Alexander Hamilton: Hamilton regularly wrote about the perils of “foreign influence,” calling it “truly the Grecian Horse to a republic.” He warned that “foreign powers also will not be idle spectators [in our politics]. They will interpose, the confusion will increase, and a dissolution of the Union will ensue.” In the Federalist papers, he presciently cautioned that “an avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents.”

As a protection against foreign influence and other betrayals, the founders wrote the Impeachment Clause into the Constitution. The founders knew that, in the grave situation in which a President worked with a foreign power against the interests of the United States or its citizens — or committed any other betrayal of office or the public trust — the people must have a constitutional means to remove the President from office before the next election.

  • James Madison argued at the Constitutional Convention that it was “indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief magistrate.” Madison went further by arguing that the President’s “loss of capacity or corruption…might be fatal to the Republic.”
  • That is why Madison knew that the next election was too late. “The limitation of the period of his service, was not a sufficient security,” he wrote. In the meantime, the President “might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.”
  • Madison was not alone: the view that elections were a sufficient check on a rogue President was considered at the Constitutional Convention — and rejected.
  • William R. Davie, the Governor of North Carolina, noted that a corrupted President could attempt to rig an election: “If he be not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected.
  • Gouverneur Morris of Pennsylvania saw the value in expeditious impeachment: “[The President] may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in forign pay, without being able to guard [against] it by displacing him.
  • George Mason of Virginia saw impeachment as necessary to ensure no man was above the law: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?”

Today, legal minds of all political persuasions, including prominent conservatives, recognize the centrality of preventing foreign influence to the founders’ original intent.

  • Supreme Court Justice Brett Kavanaugh, appointed by President Trump, earlier held in Bluman v. FEC (DC District Court, 2011) that:
    • “The United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”
  • Michael Stokes Paulsen, OLC Attorney-Advisor under George H.W. Bush, and contributor to the Federalist Society, wrote in the Yale Law Review that:
    • “At seemingly every turn, the Constitution is concerned with assuring the fidelity of U.S. government officials to the U.S. constitutional regime and to the supremacy of U.S. law that that regime prescribes. For the Framers, that fidelity meant (and still means) not being governed by foreign law, foreign rulers, or undue foreign influence.”
  • The Burton Report, published by House Republicans in 1996 to investigate foreign financing in that year’s election, also took a stand against foreign influence:
    • “U.S. election laws do not allow for contributions from foreign sources. When the laws governing our elections are broken, the very system designed to govern our free elections is threatened. If money is given illegally, that can, in and of itself, change the outcome in any given election. That is why tracking the huge infusion of foreign money…and determining how and why this was done, is so important.”