Their writings and debates surrounding the creation of the Constitution make clear that the framers feared a certain kind of character coming to power and usurping the republican ideal of their new nation. Having just defeated a tyrant -- “Mad” King George III of England -- they carefully crafted rules to remove such a character: impeachment. In the process, they revealed precisely the kind of corrupt, venal, inattentive and impulsive character they were worried about.
The very embodiment of what the Founding Fathers feared is now residing at 1600 Pennsylvania Ave.
Again and again, they anticipated attributes and behaviors that President Donald Trump exhibits on an all-too-regular basis. By describing “High Crimes and Misdemeanors,” the grounds for impeachment, as any act that poses a significant threat to society -- either through incompetence or other misdeeds -- the framers made it clear that an official does not have to commit a crime to be subject to impeachment. Instead, they made impeachment a political process, understanding that the true threat to the republic was not criminality but unfitness, that a president who violated the country’s norms and values was as much a threat as one who broke its laws.
Gouverneur Morris, who wrote the Constitution’s preamble, and future president James Madison were worried about a leader who would “pervert his administration into a scheme of peculation” -- theft of public funds -- “or oppression. He might betray his trust to foreign powers,” as Madison put it. Morris, who like many in the colonies believed King Charles had taken bribes from Louis XIV to support France’s war against the Dutch, declared that without impeachment we “expose ourselves to the danger of seeing the first Magistrate [the President] in foreign pay without being able to guard against it by displacing him.”
Trump’s many ties to Russia spring immediately to mind, of course. What’s provable so far -- denying electoral harm perpetrated by Russian actors, hiding his efforts to conduct business in Moscow during his 2016 campaign, leaking state secrets to the Russian ambassador at a White House meeting, numerous contacts between his top staff and family and Russian agents -- resonates deeply with this core concern expressed by the Founding Fathers.
The possible involvement with a Russian scheme to corrupt the election process was something else the framers worried about, with George Mason, at the Constitutional Convention in 1787, calling for impeachment for any president who “might engage in the corrupting of electors.”
Meanwhile, Trump’s decision to fire FBI Director James Comey, the man investigating his administration’s Russian connections, is clearly an impeachable act, according to Madison. He wrote that if “the President can displace from office a man whose merits require that he should be continued in it ... he will be impeachable ... for such an act of maladministration.”
Constitution-signer Abraham Baldwin of Georgia likewise seemed to be speaking about the Comey firing way back in the first Congress, when he noted that if a president “in a fit of passion” removed “all the good officers of government,” he should be susceptible to impeachment.
But Baldwin had in mind a more pressing fear: a president who didn’t live up to his constitutional duty to properly staff the executive branch, including the various departments such as the State Department -- say, by removing appointments of a previous administration and not replacing them. Sound like anyone you know? According to Baldwin, the duty of Congress in such situations was to “turn him out of office, as he had others.”
Another attribute the Founding Fathers feared in a president was the abuse of the power to issue pardons. Mason, at the Virginia constitutional ratification convention, worried in fact that the president might use his pardoning power to “pardon crimes which were advised against himself,” or before indictment or conviction “to stop inquiry and prevent detection.”
Whether Trump is considering a self-pardon is unknown, but it is fairly widely speculated that, with the August pardon of former Arizona sheriff Joe Arpaio, he was signaling to the likes of former campaign aides Paul Manafort and Michael Flynn that they too might be pardoned for disregarding valid orders and laws. To which the words of Madison would apply: “if the president be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him,” he should be impeached.
And on it goes. The Founding Fathers tried to prepare the country for the possibility of someone not only corrupt and venal — whereby impeachment was “an essential check ... upon the encroachments of the executive,” as Alexander Hamilton put it in the “Federalist Papers” — but also from someone simply unable to perform the job, whether through incompetence, ignorance or incapacity. (The first successful impeachment conviction in our history, for example, was of an elderly federal judge who had slipped into dementia.)
As Supreme Court Justice James Wilson, signer of both the Declaration of Independence and the Constitution, taught: The president “cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person his criminality ... and he is responsible for every nomination he makes ... far from being above the laws, he is amenable to them ... in his public character by impeachment.”
But prescient as they were, what the framers may not have anticipated was someone who epitomized so many of their fears at once — someone like Donald Trump — being elected to the presidency in the first place. They hoped that the electoral college system would prevent that from happening. But in the event that didn’t happen, they added an additional fail-safe: impeachment. It’s now up to Congress to fulfill the framers’ vision.
Barbara Radnofsky has practiced law for nearly four decades and is author of the new book “A Citizen’s Guide to Impeachment.”