Federalist No.65

The Powers Of The Senate Continued

Friday, March 7, 1788

Alexander Hamilton


Article I, Section 3, Clauses 6 and 7 of the Constitution:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 4 of the Consitution:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

65.1

This paper refers to the above sections of the American constitution. Hamilton’s goal is to consider what constitutes an impeachable offence and why the constitution places the impeachment process in the hands of the House of Representatives and the trial with the Senate, rather than the Supreme Court or another body.

65.2

Given that the constitution is somewhat vague as to what constitutes high crimes and misdemeanours (beyond treason and bribery), this paper offers a little insight into what the Founding Fathers intended. Hamilton suggests that impeachment is warranted for the abuse or violation of some public trust; that the crimes intended are distinctly political as they relate chiefly to injuries done immediately to the society itself. In the case of President Trump, for whom the impeachment process has only begun at the time of writing this, the Senate would need to decide whether Trump’s actions with the Ukraine violated trust and was injurious to American interests.

65.3

The bulk of this paper, however, is concerned with why responsibilities for impeachment are allocated as they are in the constitution. Hamilton acknowledges that any impeachment process is likely to awaken strong partisan emotions, and that impeachment is as much a political outcome as a judicial one: 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. This is a situation now faced by the Democrats if they impeach Trump and he is tried in the Senate where the Republicans hold the majority, and so far have shown no sign that they accept the argument that Trump is impeachable. Hamilton, however, argues that the Senate is the most suitable for the role. The following is a set of reasons he explores.

Character

65.4

The issue of character is recalling previous Papers – for instance Madison’s Federalist No.63 – that argue the circumstances that govern the Senate will enable it to embody ideals of stability, freedom and national character. Hamilton’s judgment is based upon these previous arguments that accept that the Senate will be a more thoughtful and neutral assembly.

Precedent

65.5

The US constitution’s process of impeachment is based upon the British model, in which the House of Commons begins impeachment hearings, and the House of Lords decides the outcome. Hamilton asserts that keeping the two processes separate is to be preferred.

Supreme Court

65.6

Hamilton reasons that giving responsibility for an impeachment trial to the Supreme Court would be unacceptable. Given the momentous nature of the decision to remove the executive, Hamilton fears the members of the Supreme Court, numbering so few, would have neither the fortitude to make the decision nor the degree of credit and authority to reconcile the public to the decision. The first could be dangerous to the accused – Hamilton does not specify how, but one can imagine the sense of injustice if a trial was thought to be improperly prosecuted – or lead to public unrest at a decision if the court lacked perceived authority.

65.7

Hamilton suggests that the safest measure is to put the decision in the hands of a larger body like the Senate.

Fair trial

65.8

Hamilton argues that the Supreme Court cannot try an impeachment since impeachment only removes the public servant from office and future service (shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States - Article I, Section 3, clause 7), and does not make a decision as to criminality. A further trial is needed for that (the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law (ibid). Hamilton’s point is that it would be unjust for the same Court to try both cases, given the natural problems of prejudice, as well as the possibility that new evidence might arise in the defendant’s favour between trials which may not be given due credence in a second trial with the same judges. Added to this, Hamilton argues that the trial should not be a jury trial, since juries are swayed by judges, and given that the public servant has already been impeached, they would likely be swayed, also, by that decision.

65.9

These problems could neither be avoided if the Supreme Court was to be first amalgamated with the Senate, in the case of a second trial where a second trial then occurred.

A Special Court for Impeachments

65.10

Hamilton examines the practicality of a special court for impeachments, which he acknowledges would have some advantages. Unfortunately, he leaves those advantages only to be inferred from the proposition that the court would be wholly distinct from other departments of the government. This seems to allude to his concession at the beginning of this Paper that impeachment will most likely be a partisan process decided by party political power rather than a true consideration of guilt or innocence.

65.11

The problem for this suggestion lies in who will constitute this court and how will it would be formed. He considers two models. First, a court specifically for impeachments, permanently appointed. The second, a court comprised of officers from State governments. The advantage of either model would be the greater possibility of impartiality.

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Yet Hamilton rejects both models. His objection to the first model is a practical one. It will be a huge cost that will be hard to justify.

65.13

His objection to the second model is to the difficulty of forming the court in a timely fashion. The innocent will suffer too long while waiting the formation of the court, while the guilty may use the time to corrupt others and intrigue. Added to this, given the political nature of impeachment, the House of Representatives, if motivated by an intemperate or designing majority - that their motives are not noble – will have further time to influence others.

65.14

Of course, this second objection would seem to be of little importance now, given modern travel and communication. Hamilton is talking about the problems of physical geography, which was a consideration of his time.

. . . .

65.15

Hamilton concludes that the system is not a perfect one, but asks Where is the standard of perfection to be found? His point – the point of the Federalist Papers overall – is not to argue the perfection of the constitution, certainly not this process in particular, but to challenge its detractors to show that the constitution is, on the whole, bad and pernicious. Of course, Hamilton’s answer implicitly is, that it is not.

26 November 2019