Madison on suspicious sheltering and its constitutional consequences

In the Virginia ratifying convention,

George Mason argued that the President might use his pardoning power to “pardon crimes which were advised by himself” or, before indictment or conviction, “to stop inquiry and prevent detection.” [The points applies equally to commuting a sentence.–MSS]

James Madison’s response:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty…

These quotes are located within a document prepared by the House Judiciary Committee in 1974. The passage quoting Madison’s words has a very germane footnote by the author of the original source being cited by the Committee:

Madison went on… that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected.

The reference to the President or Vice President being “suspended until impeached and convicted” is worth thinking about, as is Madison’s apparent claim that the House of Representatives can “remove” the President.

All impeachment procedures in other presidential systems that I am aware of provide explicitly for the suspension from all duties of the impeached official, pending trial. Obviously a suspension (which indeed would be at least a temporary removal) is neither explicit in the US Constitution nor has it been practiced in the two actual impeachments of US Presidents. But did Madison believe an impeached (but not yet tried) President or Vice President would be suspended from office? Did he perhaps even believe that the official in question could be suspended before the full House votes impeachment? One might infer that from the footnote quoted above. Did he believe that in the event of impeachment processes against both the President and the Vice President there would be an Acting President? Any Acting President, of course, in this scenario, would be the Speaker of the House. (And, following the passage of a bill of impeachment, is there any time limit on how long the party controlling the Senate’s agenda can wait to begin a trial…?)

My emphasis in the quotations above, of course. Just working on that table-setting, the importance of which can hardly be over-emphasized…

The footnote quoted above cites (at note 29) as its source: J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 74 (reprint of the 2nd ed.).

Thanks to RAC for the tip.

15 thoughts on “Madison on suspicious sheltering and its constitutional consequences

  1. Pingback: Fruits and Votes

  2. I dare say any effort to replace the president and vice president with a speaker of the opposite party who has never won a democratic election outside his or her own congressional district before even a vote on articles of impeachment in the House, coupled with deliberate stalling of an unwinnable trial in the Senate after a party-line impeachment vote in the House, would be seen as a coup d’etat by large segments of the public, and if not handled well could precipitate a civil war. (Neither in the Johnson or Clinton impeachments was it ever seriously broached that the sitting president be suspended from office during the process, so I don’t see an effort to justify this action being seen as consistent with precedent.)

    I also dare say that the Democrats would lose the 2008 presidential election in a landslide if they tried such a thing. And it’s probably the only way they could lose that election.

  3. Based on the Clinton impeachment, I also thought that trying to impeach Bush would simply be counter-productive and lose the Democrats votes. But the recent polling data is changing my mind. During Clinton’s impeachment, independent voters were fairly consistently against impeachment. But the polls that Prof. Weeks brings to our attention show independents in favor of impeachment this time around.

    Also, Matt Yglesias suggests that Pelosi and Byrd should state that they will decline the presidency if Bush and Cheney are convicted, leaving it to SecState Rice. This would presumably aid the primary goal of showing that the people will not tolerate a president deceiving the nation and violating our rights and laws, at the cost of waiting another year to have a Democrat President.

    I still must agree with Yglesias that there is no way that 67 senators will vote to convict, at least not at the present moment. But we can still at least try to restore honor and integrity to the White House.

  4. Re impeachment – if you rebels had copied the real working parts of system that was already evolving in the UK at the time of your rebellion, that Lord Durham and the Canadians christened “responsible government” only 50 years later, you wouldn’t need impeachment. The majority leader in the House would be Prime Minister, would be subjected to questions every day (or, even on Tonay Blair-ah’s roster system, at least a couple of times a week) and if the party realised that he was a total dope/electoral liability they’d have a quick vote and elect a better leader. The more I see of your system the more I’m convinced that the opposite of responsible government is irresponsible government. Elect a dope or a crook (or both) and you’re stuck with him* for four years, unless you go through a very messy process for getting rid of him* – yuk!

    *So far, him – and if you elect Hils for a 4-year term who’s to say somebody won’t want to impeach her before it’s over?

  5. Thank you for that John. In fact, I addressed exactly that counterfactual in this blog’s Mission Statement (see the sub-heading “Towards a political re-engineering agenda for the USA.”

  6. I guess the grass is always greener on the other side. Living in Canada, I’ve always been jealous of the separation of powers in the US.

    Here, if a government wins a majority in parliament, they have essentially unchecked power for five years. Yes, there could theoretically be a revolt by government backbenchers–or even less likely, an intervention by the Senate or Governor-General–but practically we’re stuck. At least in the US there’s a chance every two years to elect a Congress or Senate to counteract a troublesome President.

    Not that any of this is news to anybody here. I just though it bears repeating that political system design is a matter of trade-offs; there’s no perfect system. Except myself as benevolent dictator, of course! 😉

  7. Here on the other side of the Pacific, we have the same experience. A Prime Minister of Australia always has a majority in the House, by the nature of the system. A prime minister with a majority in the Senate has a degree of unchecked legislative and executive power that would cause one Richard B Cheney to have to adjust his trousers.

    The parliamentary system (or at last the Westminster version) has evolved into an elective dictatorship.

    The only difference between Washington and Westminster is that prime ministers are indirectly elected and governent bills pass more or less automatically through the lower house.

    An example. Bush had at least to secure the consent of both houses to launch the enterprise of Iraq. Blair and Howard were free to initiate war acting under the royal prerogative and conceded votes in the house of commons and the house of representatives as an act of grace. Acts of grace should have passed from constitutional design in about 1215 or so.

    The disciplined party majorities in both countries dutifully endorsed their prime minister’s war plans with less debate than the US congress.

  8. It’s not impeachment that’s important, its the Senate trial that would follow that’s important.

    Since the House of Representatives would be acting as the prosecutor if articles of impeachment were approved, like a proscuting attorney, they have to make a realistic assessment as to whether they could get a conviction. Right now, the answer is probably not. And that’s why impeachment is not being actively pursued right now.

    Perhaps the House Republicans in 1998 should have made the same assessment back then, that conviction was not going to happen.

    I think that’s the primary reason that Nixon resigned in 1974. I think he was advised that if he stuck it out, it would just be a matter of time before he was impeached and convicted.

  9. Impeachment is political accountability for acts committed against the constitution. I do not think the prosecutor/jury analogy is fully applicable. Nor I am convinced that, with Bush’s popularity so terribly low and with many Republican Senators facing potentially difficult reelection bids in 2008, that some would not bail on him and prevail on him to resign “for the good of the country.” I am also not persuaded that getting impeachment but failing to get conviction is markedly worse that the status quo, which will go down as a precedent that presidents can get away with even worse crimes than Nixon was guilty of.

    This is a transcendental issue, a defining moment in US constitutional history. Will Democrats squander it? Yes, they probably will. Unless, perhaps, we really push them.

    • Sorry, I just realised that “spill” only has that meaning in Australian political slang: – different meanings entirely in USAese:
      I’ve also seen the term used downunder for (a) House/ full-Senate double dissolutions and (b shareholders calling for a fresh vote on all positions on a company board. It basically means something akin to ”recall”.
      One of those handy but region-locked terms, like “waka-jumping” in Nyzzylynd or parties “bagging” seats in India.

      • Understanding Australian parlance, I see a key difference between a spill and an impeachment. An Australian first minister could (at least until recently federally) be dumped in a party room spill with ease. Does the Ohio GOP have the votes to impeach and then the two thirds needed to remove in the Ohio Senate?

      • C’mon, Mark, how often does a pun like that come up? Even if it needs to be massaged…
        More seriously, one could cavil that impeachment, supposedly “for cause” but obviously on grounds of political dislike, is really a “spill” in more like the Australian sense… yes, even with a super-majority required: Australian Labor Party leaders can now only be removed (well, forced to stand for re-election in a collegiate vote) by 75% of MPs if they are Prime Minister, 60% if Opposition Leader. “High crimes and misdemeanours” or “quamdiu se bene gesserint” are not stipulated, so i would argue this is close to converging on US-style impeachment (federal or State-level) in practice.

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