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What can we learn from America's first impeachment?

What can we learn from America's first impeachment?
© Greg Nash

In opening statements at the Senate impeachment trial of former president Donald Trump, Reps. Jamie RaskinJamin (Jamie) Ben RaskinThe Hill's Morning Report - Biden officials brace for worst despite vaccine data Political fireworks fuel DC statehood hearing Democrats vow to go 'bold' — with or without GOP MORE (D-Md.), Joe NeguseJoseph (Joe) NeguseCongressional Black Caucus members post selfie celebrating first WH visit in four years Gun control advocates applaud Biden funding plan but say more must be done Democrats urge Biden to take executive action on assault-style firearms MORE (D-Col.) and David CicillineDavid CicillineHouse lawmakers fired up for hearing with tech CEOs Democratic lawmakers propose B hike for State Greene calls Italian American House Democrat 'Rep. Mussolini' MORE (D-R.I.) were very effective arguing that the Constitution authorizes an impeachment trial of a former president. Indeed, when the votes were tallied, authorizing the trial to proceed, they had picked up a sixth Republican vote, with Sen. Bill CassidyBill CassidyCalls grow for national paid family leave amid pandemic Senators urge Energy chief to prioritize cybersecurity amid growing threats Vivek Murthy confirmed as surgeon general MORE (R-La.) joining the five who previously sided with all 50 Democrats when the issue was first raised in a preliminary motion to dismiss the case — Sens. Susan CollinsSusan Margaret CollinsOVERNIGHT ENERGY: Senate confirms Mallory to lead White House environment council | US emissions dropped 1.7 percent in 2019 | Interior further delays Trump rule that would make drillers pay less to feds Anti-Asian hate crimes bill overcomes first Senate hurdle On The Money: Senate confirms Gensler to lead SEC | Senate GOP to face off over earmarks next week | Top Republican on House tax panel to retire MORE (R-Maine), Lisa MurkowskiLisa Ann MurkowskiTrump mocks Murkowski, Cheney election chances Biden picks Obama alum for No. 2 spot at Interior Biden outreach on infrastructure met with Republican skepticism MORE (R-Alaska), Pat ToomeyPatrick (Pat) Joseph ToomeySasse rebuked by Nebraska Republican Party over impeachment vote Philly GOP commissioner on censures: 'I would suggest they censure Republican elected officials who are lying' Toomey censured by several Pennsylvania county GOP committees over impeachment vote MORE (R-Pa.), Ben SasseBen SasseToomey warns GOP colleagues to stay away from earmarks Bipartisan lawmakers signal support for Biden cybersecurity picks To encourage innovation, Congress should pass two bills protecting important R&D tax provision MORE (R-Neb.) and Mitt RomneyWillard (Mitt) Mitt RomneyRomney, Sinema teaming up on proposal to raise minimum wage Family policy that could appeal to the right and the left Press: Corporate America defies the GOP MORE (R-Utah). 

In covering the Anglo-American history of impeachments, the House managers touched briefly on the case of Sen. William Blount. It is an interesting impeachment, particularly in light of when it took place. Stretching from summer 1797 into January 1799, Blount’s was the first impeachment in American constitutional history, occurring within a decade of the Constitution’s ratification. The Senate ultimately dismissed the House’s impeachment articles.

This episode occurred within the fresh living memory of robust debates over the meaning of our foundational law’s provisions, including, of course, the clauses bearing on impeachment. In fact, several of the delegates to the 1787 convention in Philadelphia went on to serve in the House and Senate during that first decade (including James Madison, perhaps the foremost craftsman of the Constitution, who was a member of the House through 1796 — until just prior to Blount’s impeachment). The presiding officer of the Senate when it finally disposed of Blount’s case was Thomas Jefferson, then the vice president of the United States. 

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Contrary to today’s impeachment proceedings, there was no swooning over the Founders in Blount’s case — no hagiographic declamations about what they had said or meant regarding this or that constitutional clause. These guys were the Founders!

In July 1797, Blount was implicated as a central participant in a conspiracy to help the British seize Spanish-held territory in Louisiana and Florida. He owned large tracts of land in the Southwest and feared that Spain would cede its territory to France, which would depress the value of his holdings.

When the administration of President John Adams revealed the plot to Congress, the Senate quickly began to consider expelling Blount. Before that could happen, the House impeached him. The Senate then did expel him, so like President TrumpDonald TrumpTrump mocks Murkowski, Cheney election chances Race debate grips Congress US reentry to Paris agreement adds momentum to cities' sustainability efforts MORE, Blount was an incumbent when impeached but out of office by the time the Senate considered the House’s allegations. 

Blount had left Philadelphia, then the seat of our government, before the Senate could conduct a trial. Several futile efforts were made to induce him to answer the House’s allegations. Finally, toward the end of 1798, the Senate decided formally to consider the impeachment by entertaining arguments from Blount’s attorneys, who maintained the case should be dismissed because the Senate lacked jurisdiction. 

On that score, counsel made two claims. First, because Blount was no longer a sitting senator, they reasoned, the Senate lacked the power to try him. Second, as a senator, Blount contended that he had not been a civil officer of the United States; this, they claimed, rendered him ineligible to be impeached. Article II, Section 4 of the Constitution limits the application of impeachment to “The President, Vice President and all civil officers of the United States.”  

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In early January 1799, the Senate voted to dismiss the impeachment case against Blount. Unfortunately, the votes taken did not make clear the grounds on which the dismissal rested. The Senate rejected a resolution that described Blount as a civil officer who committed high crimes and misdemeanors as a senator. It adopted a resolution that said the Senate “ought not to hold jurisdiction of the said impeachment.” 

So, did the Senate decide not to exercise jurisdiction because Blount no longer was a government official? Was it because he had not been a civil officer? Was it both? We cannot say for sure. All we can say is that the case established an enduring precedent, said to be rooted in the Constitution, that senators and House members are not subject to impeachment.

Blount’s case might also have stood for a principle that non-incumbents cannot be impeached. The Senate undid that in 1876, however, by holding an impeachment trial for William Belknap, President Ulysses S. Grant’s secretary of war. Caught up in a bribery scandal, Belknap resigned before the House could vote to impeach him. The House impeached him anyway, and the Senate went forward with a trial, rejecting his claim that it had no jurisdiction. Belknap was acquitted, and though some senators rationalized their not-guilty verdict on the jurisdictional ground, that was a minority position.

This history seems especially relevant today.

Several prominent legal scholars have been sympathetic to the Trump defense’s constitutional argument that the Senate trial is illegitimate because he no longer holds office — in fact, these scholars have made the argument much more compellingly than Trump’s lawyers. They have advanced text-based contentions that the Constitution was neither intended by the Framers, nor understood when it was ratified, to apply impeachment to a non-incumbent. For example, they point to the aforementioned Article II, Section 4, which commands that impeached officials “shall be removed from Office” upon conviction. From this, they infer that when the Constitution was ratified, impeachment must have been understood to be reserved for incumbents.

Of course, there is no clause in the Constitution that unambiguously states this proposition. Just as significantly, there is text that cuts against it. For example, Article I, Section 3 says the judgment in an impeachment case can extend to disqualification from office, a penalty that would rationalize impeaching a non-incumbent. The same clause refers to “the Party” convicted in an impeachment case; “party” is a broad term, construable as including both present and former officials.

Such an interpretation, furthermore, would be consistent with British practice, which authorized impeachment of former officials. In fact, Parliament’s famous impeachment of Warren Hastings occurred as our Constitution was being drafted and was influential in the Framers’ adoption of the “high crimes and misdemeanors” standard. Hastings had been Britain’s governor-general of Bengal but was no longer in office when impeached. 

These competing interpretations of what the impeachment clauses were understood to mean when the Constitution was adopted are why Blount’s impeachment is worth our attention.

Just eight years after the Constitution was ratified, the House saw no constitutional impediment to impeaching a senator. Moreover, the Senate itself, at least initially, saw no constitutional infirmity in trying a former official — it made efforts through 1797 and 1798 to compel Blount to appear for trial.

The Senate’s ultimate conclusion that impeachment of a congressional official ran afoul of the Constitution is probably sound. That outcome finds strong support in Article I, Section 6, which excludes senators and House members, during their congressional terms, from holding civil office under the United States. That is, if impeachment is limited to the president, vice president and civil officers, and if legislators are not qualified to be civil officers, then impeachment must not apply to legislators. Plus, Congress has the power to expel members for misconduct, so impeachment would be superfluous.

All that said, it was anything but clear to the early Congress that impeachment was limited to non-legislative officials, let alone incumbents — despite the facts that this Congress had a contemporary grasp of the Constitution’s public meaning and close connections to the Framers.

Bottom line: We ought to be very skeptical about confident assurances, even from estimable constitutional scholars, that they can divine what the Framers intended and what the Constitution was understood to mean, based on the text. The impeachment clauses are not unambiguous or seamless. And we have no historical basis to believe the Founding generation was under the impression that they were limited to incumbents.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.