Impeachment and the Constitutional Convention

TOPICS: George Washington, Law & Legal System in the Early Republic

by Dana Stefanelli, Assistant Editor
November 15, 2019

One of the most significant periods of George Washington’s public career was his service as president of the Constitutional Convention. It is also one of the least well-known. This is probably because Washington said little during the convention debates—records indicate that he only spoke twice—and he did not publicly participate in the ratification process. Nevertheless, he did preside over the convention, and impeachment was a topic the delegates debated.

The delegates’ perspectives on impeachment were primarily informed by two sources: British parliamentary proceedings, and the constitutional and statutory provisions and precedents of the American states. There were similarities and differences between the governments’ impeachment processes, and although a few delegates thought it was unnecessary for the constitution to include an impeachment provision, most supported giving Congress the power to impeach government officers for improper conduct.

The brevity of the text in the Constitution regarding impeachment provisions may suggest to readers that the process of impeachment is very limited in scope. Article 1, which describes the powers of the legislative branch, specifies in section 2 that the House of Representatives “shall have the sole power of impeachment.” Section 3 addresses the Senate’s “sole power to try all impeachments.” After laying out the architecture of an impeachment trial, section 3 concludes that “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,” with a clarification that someone convicted might still be subject to criminal prosecution.

A casual reading of this passage might lead someone to conclude that the end result of an impeachment and conviction must be removal from office and prohibition from holding office again. A more careful reading of the text, particularly the phrase “shall not extend further than,” suggests a wider range of possible outcomes. An individual convicted by the Senate might be removed from office but not prohibited from holding office again. Or they might be prohibited from holding future office but not removed from their current office. Or they may face neither consequence and instead be subjected to some sanction that senators and legal precedent deem appropriate to the offense.

Much of the discussion about impeachment at the convention was directly or indirectly concerned with the creation of this passage. The debate focused on the possible impeachment of a president because of the event’s significance to the separation and balance of powers that would be essential to the effective operation of the Constitution. The most extensively discussed topics were the related questions of whether the legislature should have the power to impeach current officeholders and whether officials could be removed from office through impeachment. The existing precedents did not offer clear guidance. Significantly, while some state constitutions gave their legislatures power to impeach current officeholders, several others permitted impeachment only of people no longer in office.

Some delegates argued that allowing impeachment and removal of current officeholders would give the legislature too much power over the executive. They considered periodic elections or punishment of co-conspirators sufficient remedies for poor conduct in office. But others spoke out forcefully in favor of allowing impeachment of current officeholders. According to James Madison’s notes on the convention, North Carolina’s William Davie pointed out that if the president was “not impeachable whilst in office, he will spare no efforts or means whatever to get himself re-elected.” Madison himself argued it was “indispensable that some provision should be made for defending the Community ag[ain]st the incapacity, negligence or perfidy” of a president. Without this safeguard, the president “might pervert his administration into a scheme of peculation or oppression,” Madison continued, or “betray his trust to foreign powers.”¹

The fact that much of the discussion focused on whether current officeholders could be impeached obscures an important element of the debate, namely that individuals not in office were also considered appropriate targets of impeachment proceedings. Indeed, the impeachment and trial of Warren Hastings, the former governor-general of Bengal, one of the most famous impeachment cases in British history, began shortly before the Constitutional Convention assembled. Hastings’s trial was big news in the English-speaking world, and the delegates to the Constitutional Convention were aware of the events surrounding the trial. Hastings had resigned his office in 1785. The House of Commons voted to impeach Hastings in April 1787; Arthur Lee wrote George Washington on May 13, 1787, to inform him of the event. The Constitutional Convention met the following day. Washington replied to Arthur Lee’s letter just a week later but did not mention the Hastings case.

The possibility of a late impeachment (or impeaching someone no longer in office) highlights the significance of the Constitution’s language about disqualification from holding future office. If someone no longer held the office in which they had committed wrongdoing, then the power to remove them was inconsequential. But the power to prevent someone out of office from ever holding office again was a significant, and potentially powerful, congressional prerogative—though Congress has never exercised that authority.

It is difficult to know precisely what George Washington thought about the Constitution’s impeachment powers. None of his surviving writings substantively discuss it, and it was not one of the topics he commented on at the convention. Nevertheless, as president of the convention and signer of the final document, we can reasonably conclude that he was fully aware of the many possible ways Congress could exercise its constitutional authority to police and judge wrongdoing in the other two branches of the federal government.

1. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, bicentennial edition (1966; repr., New York, 1987), 331-32.