Federalist No.66

Objections To The Power Of The Senate To Set As A Court For Impeachments Further Considered

Saturday, March 8, 1788

Alexander Hamilton


66.1

Hamilton continues his defence of the Senate’s power to impeach in this Paper. Given the current impeachment process which has begun against Donald Trump, it is important to remember here that it is not only the president who can be impeached. Article II, Section 4 lists the Vice President along with all civil Officers of the United States as subject to impeachment as well. This is relevant to some of the defence Hamilton makes for the power conferred upon the Senate. Hamilton answers four key objections to the Senate's power in this Paper.

Objection 1: The provision in question confounds legislative and judiciary authorities in the same body

66.2

Hamilton points out that the power to judge impeachment is a partial mixing of powers for special purposes, and not the normal operation of the Senate. He argues that the Senate’s power to judge is actually of benefit, since it provides a protection for the Senate against the encroachments of other branches of government, namely the executive. In other words, this is another check as designed by the constitution so that the powers of government may be balanced. He points out, again, that the House of Representatives has the power to make accusations, and the Senate to judge, thereby avoiding the problem of the accused being tried by their accusers, while at the same time setting a high bar for conviction by requiring two thirds majority in the Senate to convict. This effectively makes the Senate the highest court in the land when judging impeachment.

Objection 2: That it contributes to an undue accumulation of power in that body

66.3

Hamilton is dismissive of this point, suggesting that the criticism is too vague, since there is no criterion by which to judge the power of the Senate. Instead, he chooses to consider some specific powers and their appropriateness. He mentions the powers to make treaties and to ratify the president’s choice of offices, as well as the difficulty of finding a more appropriate body for the purpose. These are all arguments made in the previous Paper. He also points out that the power of the House of Representatives counterpoises that of the Senate, since it alone has the power to begin impeachments and to originate money bills. Added to this is the House of Representatives’ power to decide elections for the presidency in cases where there is an Electoral college deadlock or no candidate receives a majority of the votes. Hamilton believes that this will happen frequently, thereby adding to the power of the House of Representatives: that as a mean of influence it will be found to outweigh all the peculiar attributes of the Senate. However, in reality, only two presidential elections have ever been decided by the House, in 1800 (when Hamilton was still alive) and 1824.

Objection 3: That they would be too indulgent judges of the conduct of men, in whose official creation they had participated

66.4

This covers a point I discussed in my commentary on the last Federalist Paper, that the power of the Senate might be used to frustrate real justice. Hamilton’s response seems to mainly focus on offices other than the president’s (remembering that it is not only the president who may be impeached). Hamilton’s point is that the Senate’s power to ratify appointments would mean they have a vested interest in those appointments, but they also had a stake in appointing those worthy and capable, and therefore would not just ignore wrongdoing. This goes to Hamilton’s character defence again, which is a far more tenuous defence in the light of the example of Trump’s presidency. For instance, Hamilton’s second defence on this point is that it is the President’s prerogative to choose appointments and the Senate’s to ratify them. Hamilton’s reasoning is twofold when making this argument. First, that the Senate has the option to reject a presidential nomination and require him to make another choice. However, it could no more influence the president’s second choice than it could his first. This comes to the second point, that this leaves the senate no other criteria for making appointments other than the appearances of merit might inspire, and the proofs of the want of it destroy. Those on the Democratic side of politics, however, may point to Trump’s appointment of judges during his term, particular Kavanagh, whose appointment met with extreme opposition due to sexual allegations made against him. Nevertheless, Kavanagh was appointed after a one-week FBI investigation – hardly enough – held to placate his detractors.

Objection 4: The Senate would be its own judges in cases of making treaties in every case of perfidious execution of that trust.

66.5

Hamilton concedes that this criticism has greater show of reason than other objections. His defence however, again rests upon the arguments of character and numbers. He concedes that the president might be held accountable if he had deviated from instructions by the Senate, or a small number of Senators might be held accountable if found to have prostituted their influence in that body as the mercenary instruments of foreign corruption. But he says that it is not reasonable or logical to prosecute two thirds of the Senate for an improper treaty. He makes a good point, that a majority of the House of Representatives would not begin impeachment proceedings against itself for bad legislation. In the same manner, how could two thirds of the Senate be expected to pass judgement against itself? The reality is, Hamilton explains, members of it should be exempt from punishment for acts done in a collective capacity. The only protection against this, finally, is that care is taken to choose Senators of good character and ability: to confide the trust to proper hands.

66.6

In cases where there is proof of corruption, Hamilton believes that the good character of the majority will mean there will be a desire to bring those people to justice, in order that the disgrace of the acts may not tarnish those members not associated with it.

27 November 2019