As the country grapples with what constitutes an impeachable offense for a president, many opinions have been offered. What strikes me most profoundly are the words of James Madison at the Federal Constitution Convention in 1787 where the underlying intention of “High crimes and misdemeanors” was debated before those words became part of the Constitution.
The images below are photographs of James Madison’s original notes on debates at the Federal Constitutional Convention on July 20, 1787. [1] The text transcriptions are courtesy of The Avalon Project at Yale Law School. [2]
Mr. MADISON thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He 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. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices
of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.
Three strikes and you’re out
Mr. Madison leaves little ambiguity about the types of crimes that would warrant impeachment. He offers three specific examples and I offer three opinions.
- “He might lose his capacity after his appointment.”
I believe there is a compelling case to question Trump’s mental stability. Psychologists long ago have abandoned the Goldwater Rule [3] and offered opinions on his mental condition. [4] - “He might pervert his administration into a scheme of peculation [5] or oppression.”
Is there any lingering doubt that Trump has exploited his position to line his own pockets? Trips to Maralago. Air Force refueling in Scotland, suggestion the G7 stay at his Doral property. These are the very definition of emolument. [6] To many, separating children from their parents and keeping then in chain-link enclosures could only be called oppression. - “He might betray his trust to foreign powers.”
Where to begin? Putin, the Saudis, Ukraine, Australia…
Madison’s flawed emergency brake
In his notes, Madison believes that the members of an assembly would never act in concert to support a tyrannical president. He states, “Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public.” Maybe I’ve become too cynical, but I don’t remember the last time I saw personal integrity by a member of Congress. Maybe it was John McCain. It’s difficult to look at the united front of Republican support for Trump and believe that personal integrity and honor are anywhere to be seen.
Also, unfortunately not operative in today’s Congress is Madison’s second thought, “And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body.” It will always be puzzling to me at how Republicans can remain mute on Trump’s abuses of power at the expense of degrading America. Their silence is their consent. History will not be kind to those Republicans who could have made a difference by speaking out but chose to preserve their chances for reelection by saying nothing and avoiding the dreaded Tweet from the president.
Apologies to Mr. Madison
I believe Madison would be so disappointed to see how one man has perverted the ideals he and his colleagues worked so hard to establish. He knew that there could be a corrupt, authoritarian, delusional president and included measures in the Constitution to protect the country from the destruction that would ensue. What he couldn’t have predicted is that so many couldn’t see the damage being done or wouldn’t care.
I’m sorry, Mr. Madison. And I offer my condolences to all the good people who endeavored to create an enduring country based on ideals and ethics. My hope is that someday we can return to the idealism we had some 230 years ago. Maybe that journey begins with a single vote in the House followed by a single vote in the Senate. Maybe.
[1] Library of Congress, Image 258 of James Madison. James Madison’s Original Notes on Debates at the Federal Constitutional Convention. https://www.loc.gov/resource/mjm.27_1635_1911/?sp=258
[2] The Avalon Project – Documents in Law, History and Diplomacy. https://avalon.law.yale.edu/18th_century/debates_720.asp
[3] Goldwater Rule’s Origins Based on Long-Ago Controversy https://www.psychiatry.org/newsroom/goldwater-rule
[4] The Mind of Donald Trump: Narcissism, disagreeableness, grandiosity—a psychologist investigates how Trump’s extraordinary personality might shape his possible presidency. https://www.theatlantic.com/magazine/archive/2016/06/the-mind-of-donald-trump/480771/
[5] Peculation: to steal or take dishonestly (money, especially public funds, or property entrusted to one’s care); embezzle. https://www.dictionary.com/browse/peculation
[6] Constitutional Law Expert: Trump Found Two Ways to Violate U.S. Constitution in One Week https://lawandcrime.com/high-profile/constitutional-law-expert-trump-found-two-ways-to-violate-the-constitution-in-one-week/
Confronting Mediocrity 