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What would America's Founding Fathers have said about Trump's impeachment trial?

Posted January 21, 2020 10:09 a.m. EST

— What American politics needs is time travel.

What could salve the bitterness over US President Donald Trump's impeachment battle better than a face-to-face explanation from the Founding Fathers about how they intended to hold presidents to account?

The Constitution, ratified in 1788, prescribes impeachment in cases of "Treason, Bribery and other high Crimes and Misdemeanors" by the president -- but unfortunately, Thomas Jefferson, Ben Franklin and the gang didn't exactly spell out what they meant by a "high crime." Today, Trump's legal team says that he's in the clear, because pressuring Ukraine to dig dirt on his rivals isn't technically a crime -- an argument that Democrats see as absurdly literal, since it would allow a President to abuse power with impunity.

It's not the only historical conundrum left by the founders that ties Americans in knots today. When they wrote that the need for a "well regulated militia" meant the right to bear arms should not be infringed, did they mean that future citizens should have the right to weapons with a killing power they cannot have imagined? Would they have agreed that there's a "right to privacy" inherent in the Constitution that allows women to chose an abortion? Does the Declaration of Independence's statement that "all men are created equal" mean that Americans have the right to marry members of the same sex?

It's hard to run a modern nation with a 230-year-old document. Generations of legal scholars and jurists have wrestled with how to apply its antiquated precepts to the mores and technologies of each subsequent era.

But the founders did leave us some help on impeachment. In the Federalist Papers, a sort of 18th century 'Constitution for Dummies,' Alexander Hamilton explained that impeachment responded to "those offenses which proceed from the misconduct of public men, or other words from the abuse or violation of some public trust" and are political because they relate "chiefly to injuries done immediately to the society itself." So much for purely criminal offenses.

So who has it right? "The Little Lion" or the Donald?

Read it yourself

You don't have to take it from us. Both sides of Trump's impeachment trial have made their points of view clear in repeated public documents and memos. Here's where everyone stands, in their own words:

"President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit...he will remain a threat to national security and the Constitution if allowed to remain in office." -- The House articles of impeachment, released Dec. 10.

"The Constitution provides a remedy when the President commits such serious abuses of his office: impeachment and removal." -- The House of Representatives' Jan. 18 trial brief.

"The Articles of Impeachment are constitutionally invalid on their face. They fail to allege any crime or violation of law whatsoever, let alone 'high Crimes and Misdemeanors' as required by the Constitution...The House process violated every precedent and every principle of fairness governing impeachment inquiries for more than 150 years. President Trump categorically and unequivocally denies each and every allegation in both Articles of Impeachment." -- Trump's Jan. 18 response to the Senate trial summons.

"President Trump maintains that the Senate cannot remove him even if the House proves every claim in the Articles of impeachment. That is a chilling assertion. It is also dead wrong. The Framers deliberately drafted a Constitution that allows the Senate to remove Presidents who, like President Trump, abuse their power to cheat in elections, betray our national security, and ignore checks and balances." -- The House's Jan. 20 response to Trump's response."

The diluted standard asserted here would permanently weaken the Presidency and forever alter the balance among the branches of government in a manner that offends the constitutional design established by the Founders. " -- Trump's Jan. 20 trial brief.

The "unacceptable president"

As America's third presidential impeachment trial begins, Meanwhile digital producer Shelby Rose dug into the archives for the original tickets to the very first: the 1868 trial of Andrew Johnson. The sensational affair -- which has since become a point of reference for Trump's defense today -- forced the Senate to invent a gallery pass system just to manage the intense public interest.

Johnson, the first president to be impeached, was a Democrat in a Republican-run town. When a conflict erupted with Congress over cabinet appointments, it boiled over quickly into an all-out impeachment fight. The House filed 11 articles of impeachment against Johnson, including one that accused him of using a "loud voice" to make "intemperate, inflammatory and scandalous harangues" against the legislative branch -- an early form of presidential tweeting.

Republican Sen. James Grimes of Iowa, among those who voted to save the President, legendarily argued that Congress had overreached. "I cannot agree to destroy the harmonious working of the Constitution...for the sake of getting rid of an Unacceptable President."

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