On this day in 1788, Federalist Paper No. 65 is published. Alexander Hamilton (a.k.a. “Publius”) discusses the Senate’s role in impeachment/conviction of executive officers. Why do I suspect just a few of you are interested in this paper?!
Publius notes the inherent difficulties in prosecuting the “misconduct of public men” or the “abuse or violation of some public trust.” Finding a “well-constituted court for the trial of impeachments” is difficult, to say the least. The “passions of the whole community” are stirred. People take sides, and these sides may align with pre-existing political parties. “[I]n such cases,” Publius concludes, “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
Given these difficulties, the Senate was thought the “most fit depositary of this important trust.” The Constitution, of course, provides that the House can accuse a public official; however, the Senate is the body that must convict.
One recurring drumbeat in the past few papers has been the importance placed upon the election process for Senators. Publius turns to that feature of the Senate again here. The Senators, he says, are the “representatives of the nation themselves.” They are “sufficiently independent” and could “feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?”
Unfortunately, passage of the 17th Amendment has undermined this aspect of Publius’s argument. The Senators no longer represent the States; they are direct representatives of the people (just as the House is). The Founders thought that it was important to have a balance within our Congress. We seem to have forgotten the very real benefits to be had when Senators and Congressmen are elected in different, but complimentary ways.
Could the Supreme Court have performed this task? Publius thinks not. For one thing, it is not numerous enough. “The awful discretion which a court of impeachments must necessarily have,” he explains, “to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.”
Next, it is worth considering that some impeachments will be followed by a criminal trial. Should the court that impeached him then also decide if he is guilty of a crime? Any biases and errors in the first trial could carry over into the second trial.
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