Robert Kimball Shinkoskey: What the founders thought about impeachment, and what to do now

(J. Scott Applewhite | AP File Photo) Rep. Devin Nunes, R-Calif., the ranking member of the House Intelligence Committee, joined at left by Chairman Adam Schiff, D-Calif., holds up a document he is submitting as the panel prepares to listen to former White House national security aide Fiona Hill, and David Holmes, a U.S. diplomat in Ukraine, on Capitol Hill in Washington, Thursday, Nov. 21, 2019, during a public impeachment hearing of President Donald Trump's efforts to tie U.S. aid for Ukraine to investigations of his political opponents.

An early vote on impeachment wording in the Constitutional Convention used the term “malpractice and neglect of duty.”

George Mason wanted “mal-administration” (bad government practice). In Federalist No. 65, Alexander Hamilton thought impeachable behavior included “political crimes.” James Madison supported impeachment for political abuses and neglect of office. Federalist No. 64 claimed the president could be removed for any misconduct indicating he did not possess the honor, integrity, and character to carry out his office free from corruption.

James Iredell, later an associate justice of the Supreme Court, said at the North Carolina ratifying convention that impeachment should be made for harm “arising from acts of great injury to the community.”

Ukrainian President Volodymyr Zelensky’s acceptance of a bribe would not have been as bad a deed as Donald Trump’s offering of it. If Zelensky made an announcement that his nation was investigation former Vice President Joe Biden and his son, after pressure to so do from Trump, Zelensky would have been starting down a path that might easily lead to other assertions of control over Ukraine coming from the American president, and possibly other bribes.

The one offering the bribe is worse because he is taking an innocent party — by all reports an honest politician — and turning him into a back-room dealer, or even a law-breaker. The U.S. president is setting a bad example both for those around him in the American government and those around Zelensky in the Ukrainian government.

Ambassador Gordon Sondlund reported that Trump viewed the whole arrangement as a business “deal” involving an exchange of “this for that” (quid pro quo). However, this was not a commercial transaction, but rather a government transaction. The provision of the military aid has been and will continue to be a gesture of good faith and humane aid from one democracy to another. Congress appropriated the money and that appropriation came with no strings attached other than certification that it would not be used corruptly, which certification was in place well before. The president cannot attach additional strings that Congress has not specified.

There are a number of reasons why impeachment should proceed to whatever conclusion will be reached in this case. The constitutional law professor Raoul Berger says impeachment is a “healthy” process in a democracy. Challenging or removing bad officials is good for the citizenry for the simple reason that wrong-doing must be exposed and righted.

Beyond this, the process is absolutely necessary, because there is no other provision in the law to remove a bad-acting president. If impeachment is not used, the people have no recourse at all against tyranny short of revolution. The people of Hong Kong cannot impeach China’s Xi Jinping, so taking to the streets is their only recourse. We can do better. Certainly, impeachment is a better idea than revolution.

Hamilton opined that the way to check abuse of power is by the president “being at all times liable to impeachment.” (Federalist No. 77) In addition, the practice of impeachment is the only way to develop a body of impeachment procedure and law. Pursuing impeachment today provides precedents to deal with future events of misconduct.

Robert Kimball Shinkoskey

Robert Kimball Shinkoskey, Woods Cross, is author of “The American Kings: Growth in Presidential Power from George Washington to Barack Obama,” Wipf and Stock Publishers/Resource Publications, Eugene, Oregon, 2014