The Purpose and Powers of the Senate, Part XVI: Maladministration and Misdemeanors

    Having settled, as of September 8^th, the nature of the Senate’s responsibilities in the realm of foreign policy, the final major issue touching upon the authority of that selfsame body which the assembled delegates took up before adjourning for the day had to do with another instance in which the upper house would act as something more than a legislature. Granting the Senate the ability to weigh in on international treaties and vote upon executive nominations effectively transformed the chamber into a kind of state-appointed advisory council to the office of President. But there was more that certain delegates felt that the upper house of Congress could accomplish – a further purpose which its members might serve – beyond simply acting as a check on executive discretion. Lest a President, in their four years, abuse their power to such an extent that waiting for the next election to be rid of them would place an intolerable burden upon the American people, the chief executive of the United States needed to be removable at any time. The mechanism which the Framers adopted for this purpose, impeachment, was one which had its origins in British parliamentary procedure. As the House of Commons possessed the right to charge an officeholder with a given crime and the House of Lord the right to try them, so would the House of Representatives claim the right to levy charges and the Senate maintain the right to hold a trial. But while this represented but one of many adaptations of British administrative procedure in which the Framers knowingly indulged, the implications of thus empowering the Senate gave rise to certain questions given the increasing scope of its responsibilities. With the upper house of Congress set to take a much more active role in several different areas of public policy than was at that time the case in Britain with the House of Lords, certain of the Framers were naturally given to wonder whether the Senate was really the best place to hold a trial of a public official.

    Specifically, it was the potential trial of a President which had become an object of concern for certain delegates. Granting such a power to the Senate was bound to affect the relationship between one and the other. The exact terms of the relevant indictment needed to be chosen very carefully. Virginia’s George Mason was the first to raise this point, notably in reference to the aforementioned British parliamentary procedure. “Why is the provision restrained to Treason & bribery only?” he asked, quoting specifically from the language of the existing draft constitution.

Treason as defined by the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend the power of impeachments.

Pursuant to these observations, Madison further recorded, Mason moved to add the phrase “or maladministration” to the draft immediately after the word “bribery.” For reference, the “Hastings” in question was one Warren Hastings (1732-1818) of the East India Company, a colonial administrator in British India who was famously impeached in 1786 and whose trial was not concluded until 1795. Mason’s declaration that Hastings was not guilty of treason – though he had been charged with embezzlement, extortion, and coercion – was doubtless meant to draw attention to the fact that such a narrowly-defined crime was not necessarily a very useful means of punishing misconduct. Bills of attainder were far more flexible in this regard, being acts of law which declare that a particular person guilty of a crime. But as Mason noted explicitly, they had been forbidden by the proposed constitution, in no small part because of their notorious use in British America in the years preceding the Revolution. His solution, therefore, was to expand the scope of impeachment beyond what the present draft declared, specifically so as to include the rather vague offense of “maladministration.”

    Elbridge Gerry, as seemed his custom, was quick to second Mason’s motion. But James Madison, his fellow Virginian, questioned the wisdom of such broad terminology. Treason was a crime with a very specific significance, though the exact means by which it was defined tended to vary by jurisdiction. And while bribery could and did on take many different forms, it did always come down to the illicit exchange of one thing for another. But what was “maladministration,” exactly? It could mean administration that was provably dishonest, which would potentially indicate that some manner of fraud had been committed. But it could also take on the character of something more like a judgement of value. Someone who was guilty of maladministering their sphere of responsibility might be said to have acted inefficiently according to some pre-defined standard of efficient operation. Or, to be yet more relativistic, they might be said to have simply “done a bad job.” Granting that, in the context of private enterprise, being dishonest, inefficient, or simply bad at one’s job are generally held to be valid grounds for dismissal, elected officials tend to operate within a different structure of assumptions. To be “bad” or “inefficient” as an elected public servant may be reasonable grounds for being voted out of office, but they tend not to figure into discussions of impeachment and removal. The reason for this, as Madison put it, was really very simple. “So vague a term [,]” he said, as maladministration, “Will be equivalent to a tenure during the pleasure of the Senate.” To make “doing a bad job” an impeachable offense, in effect, was to allow the upper house of Congress to remove anyone from any post at any time based on its members subjective evaluation of their individual performance.

    In response to Mr. Madison, Gouverneur Morris was substantially dismissive. In reference to Mason’s proposal to expand the grounds for impeachment to include incompetence, he said that, “It will not be put in force & can do no harm. An election every four years will prevent maladministration.” The fundamental assumption underpinning this claim, of course, was that no President would perform sub-optimally knowing that their job prospects were on the line. And there was something to this within the specific context of the original draft version of the Constitution. Prior to the ratification of the Twenty-Second Amendment in 1951, any given individual – having met the relevant age and citizenship requirements – could serve an unlimited number of terms in the office of President of the United States. Bearing this in mind – and as Mr. Morris pointed out – every President would be forced to continually make a choice as to their future in that role. Do they want to run for another term or will they retire at the end of their present term? Granted, a particularly nefarious and ill-designing President might concoct some means of staying in office indefinitely without ever having to face re-election, but this – in light of the various safeguards put in place- would seem an unlikely thing to succeed. No, the real question would seem to come down to either running or not running. If they choose to run, then it will be as Morris said; they will do their best to avoid accusations of maladministration. And if they conversely choose to retire, then it doesn’t matter how inefficient, dishonest, or incompetent they are; in four years’ time, they will surely be gone. The introduction of a two-term limit – pursuant to the aforementioned amendment – has somewhat complicated the calculus. Namely, it would seem to allow for a second term in which President might take rather drastic measures to stay in power or else behave in a less than forthright manner, knowing, as they do, that their upcoming retirement is mandatory. But such an outcome would seem about as unlikely now as it was in 1787, though certain of the safeguards mentioned above have been shown to be significantly less sturdy than they might have seemed in the past.

    Pursuant to the aforementioned criticisms, Mr. Mason then consented to alter the terms of his proposal. Rather than add the phrase, “or maladministration” after the word, “bribery” in the text describing the mechanism of impeachment, he instead suggested the insertion of the phrase, “or other high crimes and misdemeanors.” And on the motion thus altered, the vote came out decisively in the affirmative. Only three states out of eleven chose to cast their ballot in opposition – being New Jersey, Pennsylvania, and Delaware – while the remaining eight all voted in favor. Given that Mason’s approved terminology was little more specific than that to which Madison and Morris objected, this might seem a strange outcome, but the slight change of verbiage doubtless made all the difference. As discussed above, the word “maladministration” had a rather subjective tinge. It might, true enough, indicate criminal dishonesty, but then it might just as well describe simple incompetence or inefficiency. The phrase “high crimes & misdemeanors” conversely spoke to matters of far graver significance. Granted, these were not precise legal definitions. Unlike treason, which was a crime whose definition was literally spelled out in the draft constitution, a high crime or misdemeanor were not a specific species of offense. But they did, at the least, indicate the essential character of the act in question. A President who found themselves impeached, convicted, and removed from office in consequence of having committed either a high crime or a suitably damaging misdemeanor could not be said to have simply performed their duties poorly or with rank inefficiently. Rather, they will have had to commit come manner of offense which was either a crime in fact – under the laws of the United States – or a crime in spirit as agreed upon by a majority in the Senate. The exact nature of the offending act would still be subject to deliberations in Congress, but the language in question would inevitably narrow its scope. For this reason, to be sure, the assembled delegates voted to approve.

    Notwithstanding this brief show of consensus, however, there were still significant issues to be settled in the realm of Congressional impeachment. James Madison gave voice to one of these when he rose to speak following the aforementioned vote. Though he and his colleagues were largely in agreement as to the terms under which impeachments could be brought, the Virginian nevertheless,

Objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemensor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

This, to be sure, was no minor complaint, but one which Madison had rather hinted he was preparing to make. As discussed above, he took issue with Mason’s attempt to insert the word “maladministration” into the impeachment clause because he felt that, “So vague a term will be equivalent to a tenure during pleasure of the Senate.” This was, to be sure, a critique of the specific terminology which Mason sought to deploy, and one which succeeded in having said terminology retracted. But it could also be taken as an argument against the fitness of the Senate to try impeachments at all. As he noted in his latter pronouncement, “The President under these circumstances was made improperly dependent.” Evidently, regardless of the criteria by which a chief executive might be impeached in the House of Representatives, Madison felt that allowing the Senate to conduct the resulting trial threatened to create an improper relationship between the two branches of government. The Senate, he no doubt feared, might use the threat of impeachment to exact concessions from a President. And a President, at the same time, might seek to weaken the Senate as a means of preserving their term in office. It would be better for all involved, he concluded accordingly, for impeachment trials to be handled by the Supreme Court of the United States, or else a special tribunal of which, “That should form a part.”

    While it might seem like a given for the impeachment trial of a high official like the President to be conducted under the auspices of the nation’s highest judicial authority – i.e., the Supreme Court – Gouverneur Morris was quick to point out that Madison’s proposal to that effect was actually more fraught with complications than the latter seemed inclined to admit. Indeed, as far as Morris was concerned, “No other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted.” This wasn’t to say that Morris favored the idea of a Senate trial wholeheartedly. On the contrary,

He was agst. a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.

As with Madison, Morris was effectively elaborating on a concept that he had put forth previously. In response to Mason’s aforementioned talk of maladministration, the Pennsylvanian observed that granting the Senate the ability to remove a President for incompetence would have no net result one way or the other. Being forced to face re-election every four years regardless, canny executives would act accordingly and poor ones would be removed by the voters. Morris’s subsequent response to Mr. Madison’s proposal effectively took this assumption as its basis. If the impeachment trial of a President absolutely had to be held in the Senate – which Morris felt that it did, owing to the relatively small number of high court justices and the ease with which a majority could be bought – then no one need have worried about the integrity of the Senators in question. Since the voters could be depended upon to punish incompetence themselves, the members of the Senate would only ever rise to the occasion in the event that a crime had been truly committed.