Alexander Hamilton Had Faith in a ‘Dignified’ Senate Trial

(Bloomberg Opinion) -- Senator McConnell, meet Alexander Hamilton.

In the last weeks, a lot of people who followed the hearings in the U.S. House of Representatives became familiar with Hamilton’s definition of an impeachable offense as “the abuse or violation of some public trust.” But nearly everyone has neglected Hamilton’s brisk, essential discussion of the obligations of the U.S. Senate in impeachment trials – a discussion that casts a bright light on what Republicans and Democrats are obliged to do.

The date was March 7, 1788. The occasion was the Federalist Papers – specifically, No. 65.

Hamilton was focusing on the constitutional framers’ decision to create a “well-constituted court for the trial of impeachments.”

He urged that the Senate, having in impeachment trials a “judicial character,” would be a “tribunal sufficiently dignified” and “sufficiently independent” – a neutral arbiter between the House, acting as prosecutor, and a president, accused of having committed an impeachable offense.

Hamilton was acutely aware that an impeachment trial would “agitate the passions of the whole community” and “divide it into parties more or less friendly or inimical to the accused.” Such a trial would inevitably “connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other.”

His particular fear was “that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

That fear was heightened by the fact that “the most conspicuous characters” in a system governed by elections will “be too often the leaders or the tools of the most cunning or the most numerous faction.”

Such leaders, Hamilton thought, “can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.”

The choice of the Senate was specifically meant to guarantee that neutrality.

In the crucial passage defending that choice, Hamilton asked what he saw as a rhetorical question: “What other body would be likely to 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?”

The representatives of the people were, of course, the House of Representatives, given the power of impeachment. After the House exercised that power, the Senate would act as a genuine court, “unawed and uninfluenced,” and charged with “the necessary impartiality” in assessing both the law and the facts. 

Hamilton’s exegesis was meant to capture the conclusion of the delegates at the Constitutional Convention. They had debated the question at length, and were afraid of both too much and too little leniency toward the president.

In Hamilton’s own plan, offered in the early stages of the convention, impeachment would be “tried by a court, to consist of the judges of the Supreme Court, chief or senior judge of the Superior Court of law of each State.” James Madison thought that the Supreme Court itself should conduct the trial.

But Gouverneur Morris argued that the members of the high court “were too few in number.” More revealingly, Morris feared that because the president appointed the justices, they “might be warped or corrupted” if they tried impeachments. The delegates concluded that the Senate would be preferable because it was independent of the president and much larger than any court.

The Senate’s rules for impeachment, dating back to 1868, follow Hamilton’s insistence on “necessary impartiality” insofar as they require senators to take this oath: “I will do impartial justice according to the Constitution and laws: So help me God.”

There is an essential lesson here for Democrats. Under the constitutional plan, disapproval of the president and intense disagreement with his policies are illegitimate reasons for conviction. Impartial justice requires a refusal to be committed, before the proceedings have been completed, to a vote of guilty. 

For Republicans, it is fine to say that President Trump has done an excellent job. But it is a patent violation of the Constitution for anyone to announce, as Senator Lindsey Graham did, “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.”

Hamilton emphasized that in impeachment proceedings, national “trust” would be placed in an institution consisting of fallible human beings. The Constitutional Convention “thought the Senate the most fit depository of this important trust” – and gambled that its members, conscious of the gravity of the occasion, would be a “tribunal sufficiently dignified” and “sufficiently independent.”

In the coming weeks, may those words provide both inspiration and guidance.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2019 Bloomberg L.P.

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