Having spent most of Wednesday listening to the “scholars” testifying about the Constitutional standards for impeachment, I came away more convinced than ever that Alexander Hamilton was absolutely right when he warned in Federalist Papers 65 of the danger of the matter of impeachment of a President becoming hostage to partisan passions.
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, 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.
The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, 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.
Hamilton was primarily discussing the role of the Senate as the impartial jury hearing evidence of impeachable crimes following the passage of articles of impeachment by the House of Representatives. But the fundamental issue of partisan fury is really what is at stake.
I expected partisan fury from the Democratic and Republican members of the House Judiciary Committee, but I was shocked and disappointed that the three “constitutional scholars” called by the Democratic majority were shrill, angry, exaggerated and thoroughly partisan. Their job was not to discuss the evidence against President Trump, but to provide the panel and the American people with clear and dispassionate insight into the minds of the Founders, the history of the three previous impeachment proceedings and how it applies to the current matter.
I was most shocked by the shrill and anger from Dr. Karlan of Stanford, who is clearly an accomplished legal scholar, but let her partisan passions color her presentation in a way that only contributed to the sense that the critical issue of presidential impeachment has been thoroughly hijacked–as Hamilton warned–by partisanship, factionalism and ulterior motives.
In contrast, Jonathan Turley of George Washington University, at least grasped the danger of partisan hijacking. With no small bit of humor, he noted the angry mood that has infected the nation, joking that even his dog is angry. He focused on the impeachment of President Andrew Johnson, arguing it was the closest parallel to the present situation with Donald Trump–precisely because of the heavy partisanship in the current situation.
Turley also expressed alarm at the speed with which the impeachment has been carried out and at the lack of consideration of exculpatory evidence. In his tone, he brought a degree of serious scholarship to an otherwise kangaroo process. And to make matters clear, he told the panel that he did not support President Trump, did not vote for him, and is not himself caught up in the passions of partisanship on either side of the aisle. A President should not be impeached over an abrasive personality and a tendency to punch back first and ask questions later. If that was the standard, Donald Trump would be guilty as charged.
The denigrating of the impeachment process into a partisan circus is not what the Founders intended. Hamilton spoke clearly but the Democrats and their constitutional scholars were tone deaf. Very disappointing for our nation.
Originally published on Sic Semper Tyrannis. Republished by permission.