What is the purpose of impeachment? Is it remedial — a political measure designed to protect the country from the actions of corrupt officials and prevent them from doing future harm? Or is it punitive — a judicial measure designed only to punish current officeholders by stripping them of office?
Whether in good faith or in convenience, that question has been pushed to the center of the second impeachment of Donald Trump. The lines are already drawn and they surprise no one. In a recent failed effort aimed at blocking the proceedings, Senator Rand Paul made clear that he thinks impeachment is punitive and declared any trial unfair and unnecessary because Mr. Trump no longer holds office and thus cannot be removed.
The House managers, in their final brief of Feb. 2, called that argument wrong and dangerous. In support of their position, they cite the impeachment trial of William Belknap in 1876. Belknap was the secretary of war in the Republican administration of President Ulysses Grant. There has been an effort in recent years to rehabilitate the reputation of the Grant administration, but the Belknap case illustrates how tawdry and corrupt the government was.
Belknap took bribes in a complicated scheme involving the appointment of the trader at Fort Sill in Indian Territory. When in 1876 the arrangement was discovered and the House began impeachment proceedings, Belknap rushed to the White House and resigned moments before the House voted to impeach him. The House impeached him anyway.
Only three senators found Belknap not guilty of the charges, but the Senate failed to convict him because many senators claimed they lacked jurisdiction. In their arguments about jurisdiction, both modern Republican senators and Belknap’s lawyers stressed the status of the accused as a private citizen. His lawyers argued that the House could not impeach a private citizen and thus the Senate could not try him. The House managers countered that what mattered was not whether Belknap held office when impeached, but whether he held office when the alleged offenses took place.
On the questions of precedent, Belknap’s lawyers did not claim that the Senate could not try a private citizen — the claim of Republicans today. Rather, they argued that Belknap could not be tried because he had been a private citizen — if only by minutes — when the House impeached him. It was his status at the moment of impeachment that mattered.
The Senate sat as a court of impeachment under the Constitution, and it would determine its jurisdiction according to precedents. How was the court to decide? The Constitution mandated that a two-thirds vote was necessary for conviction, but it said nothing about determining the rules. The senators then, like now, decided that they needed only a majority vote to decide jurisdiction.
Still, the Senate’s majority vote that it had jurisdiction did not settle things.
Again like Senator Paul today, Belknap’s lawyers said that the failure to get a two-thirds vote meant that Belknap was substantially acquitted. There would not be a two-thirds majority for conviction if more than a third of the senators thought they lacked jurisdiction. The trial should end.
The Senate did not agree, and Belknap stood trial.
Belknap’s lawyers rather baldly argued for acquittal on the basis of party loyalty, contending that Belknap was no more corrupt than many members of Congress. But they grounded their chief argument on a conjunction. They contended the Constitution’s pairing of “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” made removal and disqualification inseparable. If Belknap no longer held office, the House could not impeach him and thus the Senate could not convict him and disqualify him from future office holding.
The House managers contended that the “and” only signified that removal and disqualification were two distinct steps. It was illogical and without any historical precedent in British law — from which impeachment derived — to think those accused could escape punishment simply by resigning or having their term expire. In Belknap’s case, what was to stop Grant or another president from reappointing him to another office?
The managers did not reach their conclusion on the basis of a single case. The corruption of the Gilded Age had created a plethora of potential impeachments. Schuyler Colfax, Grant’s vice president, had been involved in the Crédit Mobilier scandal, but his malfeasance came before he held civil office. His activities raised the question of whether impeachment covered crimes committed before holding civil office or only during the term of office.
The House decided that the impeachment power targeted only acts committed while in office. Impeachment was remedial rather than punitive. Punishment of the officeholder was only incidental to the ultimate judgment, the goal of which was to remedy the evil. But remedying the evil meant that officeholders could be pursued and convicted even after they returned to private life for the high crimes and misdemeanors committed during their terms in office in order to prevent them from ever holding office again. There was no time limit on impeachment.
On most of the articles of impeachment, 36 senators from both parties voted to convict. The appeal to party loyalty proved persuasive. Twenty-four of the 25 senators who voted to acquit were, like Belknap, Republicans. Despite the previous vote affirming the Senate’s jurisdiction, 22 senators said they voted to acquit because the Senate lacked jurisdiction over a private citizen. Because the Senate needed a two-thirds majority — 40 votes — to find him guilty, Belknap walked.
The outcome disturbed the Senate, and four senators attached opinions to the trial’s proceedings. Two of those opinions — by Thomas Norwood of Georgia and John Stevenson of Kentucky — are particularly pertinent today. Few seeking to convict Mr. Trump would embrace the larger politics of Norwood and Stevenson, both Southerners and white supremacists bitterly opposed to Reconstruction and civil rights legislation. But today their arguments resonate with modern liberals rather than conservatives or white supremacists.
Norwood argued from history and precedent that the impeachment process was remedial. The purpose of the constitutional clauses providing for impeachment were not simply to remove a person from office but to purify government, prevent future crimes and give warning to those who would attempt crimes. Stevenson claimed that under the interpretation of those who denied the Senate’s jurisdiction, government could become a carousel of corruption and criminality. The corrupt could dismount from office as necessary and remount when the time was opportune.
Despite their defeat, the House managers were sanguine. They thought the case settled the principle that those who committed crimes while in office were liable for impeachment no matter whether they still held office or when the prosecution took place.
They did not count on Donald Trump, Rand Paul and the modern Republican Party.
Richard White is an emeritus professor of American history at Stanford University and the author, most recently, of “The Republic for Which It Stands: The United States During Reconstruction and the Gilded Age, 1865-1896.”
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