May 13, 2019

"Impeachment is a heavy word that's being thrown around lightly," John Avlon said, introducing a Reality Check segment.

"It's the mechanism set up to remove a president from office for treason, bribery or other high crimes and misdemeanors. Treason and bribery are clear enough, but 'other high crimes' is intentional, and to some, infuriatingly broad so things like abuse of power, corruption, selling out to foreign governments were covered. Alexander Hamilton described them as political offenses, writing the words in the Federalist Papers in all caps 'as they relate to injuries done to the society itself' --or as Gerald Ford put it in 1970, an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.

"That speaks more to the way impeachment has been misused as a partisan weapon rather than a clear, high bar the Founders intended. Put on your history nerd goggles as we go on a deep dive into notes from the Constitutional Convention to get a sense of the Founding Fathers' real vision of impeachment.

"James Madison in 1787 argued that a broad standard for impeachment was indispensable to defend the community against the incapacity, negligence or perfidy of the president. Incapacity got addressed with the 25th Amendment in '67. But take a look at Madison's examples of negligence or perfidy: "He might pervert his administration into a scheme of peculation or oppression. Translated, that's about corruption, self-enrichment and abuse of power. Then the danger the president might betray his trust to foreign powers. This was a particular obsession of the Founding Fathers. They studied examples bringing down ancient Greek republics and said the King Charles II was bribed by French King Louis XIV with money and a mistress to back a war with the Dutch.

"That's why Gouverneur Morris said, 'No one would say we ought to expose ourselves to the danger of seeing the first magistrate in foreign pay without being able to guard against it by displacing him.' Founders like the first attorney general Edward Randolph believed it was already covered by the emoluments clause of the Constitution and wasn't an impeachable offense. Incidentally, there are two emoluments lawsuits working through the courts right now regarding President Trump and his business interests. Other impeachment scenarios include concerns that a president might gain his office by corrupt means, like bribing members of the electoral college, and also addressed concerns that the president may abuse pardoning power to stop investigations into his own administration, stating that was an impeachable offense.

"None of this is to suggest the Founders intended impeachment to be used promiscuously or for partisan purposes. It was instead seen as a 'in case of emergency, break glass' form of checks and balances. The fatal flaw in its applicability today is the fact that the Founders didn't anticipate the hyper partisan polarization of divided government and believed we could reason together when it came to gross violations of presidential ethics. That failsafe is not evidently in place.

"But the principle still stands. As George Mason said during the Constitutional Convention, 'Shall any man be above justice, above all shall that man be above it who can commit the most extensive injustice?' And that's your reality check."

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