Thursday, December 24, 1998

Founding Fathers foresaw problems:
Federalist papers addressed difficulties of impeachment

By CARL P. LEUBSDORF

Dallas Morning News

WASHINGTON — Throughout the year, many observers have rated the drive to impeach President Clinton as more partisan than the effort to impeach President Richard Nixon a quarter-century ago.

The House Judiciary Committee was divided solely along partisan lines, and debate in the full House followed a similar pattern, with just a few exceptions.

Some analysts have concluded that the political context of the Clinton impeachment bears more similarity to the nation’s first presidential impeachment 130 years ago.

That is when the partisan passions and political enmity of the post-Civil War era led to the ultimately unsuccessful effort to oust President Andrew Johnson.

Impeached by the House, Johnson survived a Senate conviction by a single vote after a two-month trial.

Unleash strong emotions

Interestingly, the Founding Fathers anticipated the pattern that marked the Johnson impeachment. They foresaw that impeachment would unleash such strong political emotions in the House that they counted on the Senate to reach a dispassionate verdict.

That conclusion is evident in what Alexander Hamilton wrote about impeachment in The Federalist, that remarkable series of essays designed to persuade states to ratify the Constitution more than 200 years ago.

The main discussion of impeachment in The Federalist explains why the Senate should conduct impeachment trials.

The reasons seem especially apt today.

Public trust

Impeachment, Hamilton wrote in “The Federalist No. 65,” will concern “those offenses which proceed from the misconduct of public men or ... from the abuse or violation of some public trust.

“They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

“The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community and to divide it into parties more or less friendly or inimical to the accused.

“In many cases, it will connect itself with the pre-existing factions and will enlist all their animosities, partialities, influence and interest on one side or on the other; and in such cases 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.”

Johnson’s critics

That is what happened in the Johnson case, where impeachment was pushed by critics of the president’s conciliatory attitude toward the South. And a good argument can be made that it is happening with Clinton. Many outspokenly advocating impeachment are political enemies who opposed the president long before the Monica Lewinsky scandal erupted.

To be sure, the case against Clinton never would have gotten anywhere had it not been for his own actions — refusing to settle the Paula Jones case, getting involved in a sexual relationship with Lewinsky, lying about it to the public and in legal proceedings and refusing to acknowledge wrongdoing except incompletely and under duress.

‘Strength of parties’

But a major factor in the case has been what Hamilton called “the comparative strength of parties” rather than “the real demonstrations of innocence or guilt.”

Because of the likelihood of such emotions, he continued, it is hard to select the appropriate judicial body in an elected government where “the most conspicuous characters in it will ... be too often the leaders or the tools of the most cunning or the most numerous faction and, on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

“The convention, it appears, thought the Senate the most fit depositary of this important trust,” he wrote. Of course, in those days, the Senate was to be elected by state legislatures, thereby shielding it from the passions that might afflict the directly elected House.

Later, in “The Federalist No. 66,” Hamilton noted that the decision to assign one house “the right of accusing” and the other “the right of judging ... avoids the inconvenience of making the same persons both accusers and judges and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches.

“As the concurrence of two-thirds of the Senate will be requisite to a condemnation, the security to innocence ... will be as complete as itself can desire.”

Carl P. Leubsdorf is Washington bureau chief of the Dallas Morning News. Readers may write to him at the Dallas Morning News Washington bureau, 1325 G St., N.W., Suite 250, Washington, D.C., 20005.

Knight Ridder/Tribune Information Services