Opinion - The answer, my friend, to impeachment: Hamilton and Federalist 65

By Michael Monasky | 

The US Senate is holding the abuse-of-power trial of President Donald Trump with its chambers converted to an unique jury box. Its collective one-hundred pairs of ears and eyeballs bear witness when its members deign to sit still and listen to the House manager’s impeachment indictments. Bob Dylan’s oblique lyrics from Blowin’ in the Wind recited challenging, appropriate questions; how many ears must a man have before he can hear people cry? How many times can a man turn his head and pretend that he just doesn’t see? Pundits say that 53 party loyalists in the Senate will vote to prevent Trump from being convicted of abuse of power and removed from office despite damning evidence. 

Trump’s presidency is dominated by his own deceit and ineptitude, prompting critics and allies alike to track who is the adult in the room. Trump has access to the nuclear missile launch codes; he frequently makes and tweets intemperate remarks about world leaders and global issues. California’s own Jerry Brown serves on the board of directors of the Bulletin of the Atomic Scientist, which plots the Doomsday Clock. The time to nuclear annihilation has advanced twenty seconds so far this year to 100 seconds before midnight.  https://thebulletin.org/doomsday-clock/

The Washington Post has enumerated over 16,000 falsehoods uttered by Trump since having taken office just three years ago.  But The Donald has also paved a path of iniquitous land and building deals similar to his father before him. 

So, what’s the answer to a would-be-mobster turned president who, through his prevarications and truculent policies, endangers us and our world? 

Well, some would say an appropriate response can be found in a brief letter 232 years ago from our very first Treasury Secretary, Alexander Hamilton. With John Jay and James Madison, he published a series of 77 essays in 1788, The Federalist Papers, arguing for ratification of the US Constitution. Federalist 65 deals with the powers of the Senate and the reasoning behind the impeachment process. The Federalist Papers revealed the legislative intent and historical context of the Constitution. 

In the 2,000 words of Federalist 65 Hamilton described the historical significance of impeachment in British common law; “The subjects of its jurisdiction are...the misconduct of public men...the abuse or violation of some public trust.” The nature of the offenses are political; Hamilton capitalized the entire word, and defined it to mean “injuries done immediately to the society itself.” He feared that political factions could present a “danger that the decision [to impeach] will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” Hamilton added: “In Great Britain it is the province of the House of Commons, to prefer the impeachment, and of the House of Lords to decide upon it.”

Why should the legislature hold such proceedings? Why did Hamilton argue for a process that avoids trial in the Supreme Court? He did so to avoid double prosecution and double trial. Double jeopardy prohibits multiple trials for the same criminal offense. 

Let’s say the US Supreme Court heard the impeachment case of the accused, found him guilty and banished him from public office. If criminal charges were to be drafted later by another court and he appealed his case, the very same US Supreme Court could be called upon to decide the fate of his property and personal freedom. Hamilton writes: “The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune?”

Maybe Hamilton could see a Donald Trump in the future, as men of questionable moral character certainly lived during his time. Many of our presidents, senators, jurists, and political leaders have committed grievous crimes, perhaps a topic for a future article. 

Hamilton himself was murdered by the sitting Vice-President, Aaron Burr. Hamilton thought Burr to be unfit for office. Burr took offense and challenged Hamilton to a duel. Boys will be boys. When Trump boasted that he is so well-liked that he could shootanybody on New York’s 5th Avenue and get away with it, he wasn’t far from the mark set by Burr. 

Should the Senate’s impeachment proceedings run as planned, and even despite winning re-election in November, Trump’s troubles aren’t over. There are dozens of legal proceedings involving him, his family, and his companies. He and his three children, partners-in-crime such as they are, have been found guilty of stealing over $2 million from the Trump Foundation and are compelled by the New York State Attorney General to undergo mandatory ethics training. The Donald could yet become that disgraced and impoverished classic comic character left with nothing to wear but a barrel with straps.