The Hamilton Test: What Makes an Impeachment Vote “Too Partisan”?
This has been a good week for Alexander Hamilton. Fresh from his triumph as Broadway’s leading statesman, he has become required reading for anyone interested in this week’s impeachment drama. This is because, taken together, Hamilton’s Federalist essays #65 and #66 — constitute the most important statement that we have about impeachment from anyone who took part in creating the Constitution.
The key takeaway from Hamilton this week seems to be that it is really bad to impeach a president in a partisan fashion. “A partisan impeachment vote is exactly what the Framers feared,” trumpeted famous Harvard professor Alan Dershowitz. “It is almost as if this Founding Father were looking down at the House vote from heaven and describing what transpired this week.” House Minority Leader Kevin McCarthy agreed: “This is the day that Alexander Hamilton feared and warned would come!”
Both Dershowitz and McCarthy were paraphrasing the same passage in Federalist #65, which has become a main exhibit in the Republican case against impeachment:
“In many cases [impeachment] will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
This is indeed one of the most important things that Hamilton says about impeachment, but it is being seriously misrepresented in the current impeachment debate. I am always glad when anything causes people to read The Federalist Papers. But I am even happier when it causes people to read them carefully and struggle to understand what Hamilton, Madison, and Jay were actually trying to say.
If we are to believe Mssrs. Dershowitz and McCarthy — and the many who have echoed their sentiments — we must assume that the mere fact of a party- line vote constitutes evidence of improper partisanship. And we must further assume that all of the members of a party voting “yes” to impeachment is somehow more partisan than all of its members voting “no.”
But this is not what Hamilton says. It isn’t even close. He takes it as a given that a debate about impeaching a president will involve animosities, partialities, influence, and interest on both sides of the question and that these biases will will map almost exactly onto “the pre-existing factions” — which is how any of the Founders would have characterized our modern political parties.
The danger is not that such biases exist. They always have and always will. The danger is that “the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” Hamilton makes it exceptionally clear that both support for and opposition to impeachment can be motivated by a dangerous partisanship, which is characterized, not by the final vote tally, but by a focus on partisan loyalty instead of “real demonstrations of innocence or guilt.”
If we want to use Hamilton’s words to test the legitimacy of a legislator’s impeachment vote — and I am all for doing so if we apply the actual text consistently — we have to do more than simply count the Ds and the Rs. The true test for Hamilton lies in motivations. A legitimate impeachment vote — affirmative or negative —is based on “real demonstrations of innocence or guilt,” what we now call “evidence.” It is illegitimate if it is based mainly or entirely on party loyalty.
This is a harder test to conduct, of course, as it requires us to listen, read, and understand rather than simply count. And the operative question for an honest Hamilton Test is: who talked the most about the actual evidence for or against the articles of impeachment.
By this standard it isn’t even close: Democrats spent most of the time talking about the evidence that Trump abused his office and tried to cover it up. Republicans spent most of the time talking about how horrible the Democrats are.
Let’s break this down a little bit. In Wednesday’s eight-hour floor debate, House Democrats laid out the case that the President of the United States subordinated the national interest to his political ambition by withholding military aid that had been approved by Congress from an ally in order to force that ally into announcing an investigation of a political rival. This clear claim of fact constitutes the basis of the first article of impeachment and leads directly to the second article, that he illegally obstructed a Congressional investigation into the nature of these facts
These were the arguments advanced and supported to demonstrate the President’s guilt. Under Hamilton’s logic, the correct response from Republicans would have been to advance and support arguments to demonstrate his innocence. There are a number of arguments that his Republican defenders could have made, such as:
- He didn’t do it. He never withheld aid from Ukraine. He never asked them to investigate Joe Biden, or, if he did, he was just asking a favor that had nothing to do with releasing the approved military aid.
- He did it, but he was fully justified in doing it. Joe Biden was guilty of serious corruption, and Trump had only America’s interests at heart by leveraging US Aid to root out evil.
- He did it, and it was wrong, but the wrongness does not rise to the level of an impeachable wrong. It is a serious thing to impeach a president, and the response, in this case, is disproportionate.
- He did it, but it was not technically a crime, and the Constitution says that you can only impeach a president for something that is a violation of a criminal code.
Any one of the arguments — if it were actually an argument with evidence and analysis and not merely an assertion — would have satisfied the Hamilton Test if Republicans had developed and asserted it in opposition to the Articles of Impeachment.
But they didn’t. Other than a few glaring generalities that the President “didn’t do anything wrong,” the Republican argument had nothing to do with the guilt or innocence of Donald J. Trump. Rather, they argued that the Democrats were being unfair, that they were denying due process, that they were treating Trump worse than Pilate treated Jesus, and that all of the partisanship was on the other side.
Why did the Hose Republicans do nothing but complain about the process and impugn the motivations of the accusers when they had actual arguments available to them? Because any real argument would have had real and immediate political consequences that they were not prepared to accept.
The first and second arguments above would have placed Trump supporters at odds with sizable majorities of the voting public, who believe that Trump did withhold aid from Ukraine in exchange for a promised investigation and that it was improper for him to do so. Only 25% if Americans agree with the statement that “Trump has not done anything wrong.” If Republicans were to make actual innocence the basis of a defense, the Democratic counterargument would have likely shifted public sentiment towards impeachment.
The much stronger argument — and the one that Democratic defenders of Bill Clinton made in 1998 — would have been that the President exercised bad judgment, made some mistakes, and perhaps even broke the law , but not to the extent that justifies impeachment. Polls show that this argument could have traction. A sincere apology from Trump, followed by a few “mistakes were made” obfuscations, could well have worked as well as it did for Clinton and moved public opinion decisively against impeachment.
Such a strategy would play well with the American audience generally, but it would never be accepted by the only audience that really matters to Congressional Republicans. President Trump has made it clear that, in his view, he did nothing wrong and will not accept or participate in any defense that says otherwise. Any Representative or Senator who tries to defend Trump by acknowledging missteps will face the immediate wrath of the most powerful member of the Republican Party.
So, what about Argument #4: that articles of impeachment are only valid if they allege a violation of the criminal code? This is a theory that has been advanced by actual law professors from time to time, and it was even referenced by several House Republicans and featured in a tweet by the President. It is the closest thing to a defense of the President that Republicans have offered during the entire impeachment drama.
But the idea that presidents can only be impeached for violations of the criminal code is a fringe theory. It is not borne out in the history of impeachment or in the writings of, among others, Alexander Hamilton. And it is also a testable theory. If this were to become the main defense against impeachment, it would evaporate as soon as a federal judge ruled against it. Worse, it could lead to a judge enforcing subpoenas against officials who might have knowledge of actual illegal behavior.
Though the House Republicans could have made several arguments against impeachment that asserted the President’s innocence, all of these arguments would have had political consequences that they could not accept. So they argued against the process and compared the accusers to Pontius Pilate — which made for excellent theatre but did not, in any meaningful way, constitute a defense. And this, it turns out, is exactly what Alexander Hamilton meant by an impeachment “regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”