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Old 01-18-2020, 01:02 AM
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Presidential Suspension, by the House

From the debates (Elliot's Debates) before the Constitution was voted upon and passed, without any textual changes:

George Mason: Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?


James Madison: There is one security in this case to which gentlemen may not have adverted: if 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; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended fill he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.
From the Federalist Papers, written before those debates:

The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT. The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President? All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning. If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity. A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction. Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity?
Trial by Impeachment, by Theo Dwight:

It will tend to a clearer understanding of our subject if the
resemblances and contrasts of an indictment and impeachment be
carefully pointed out. An indictment is a presentment in writing
by a body of men not less in number than twelve nor more than
twenty-three, of crimes committed within their own county. This
presentment is made in an ordinary court of justice, e. g. the
King's Bench. Its only effect is to pronounce the opinion of a
majority of these men (grand jury) that there is apparent reason
to believe that there has been a criminal violation of the law of
the land by the person against whom the indictment is found.
He is therefore arrested, and either held in custody or required
to find sufficient security to await his trial. Notwithstanding his
indictment, the law still presumes his innocence, and takes no
action against him except that which is necessary to secure his
attendance at the trial.


The effect of an impeachment, like that of an indictment, is
simply that there is apparent reason to believe that there has
been a criminal violation of the laws by the individual impeached.
He may in proper cases be arrested and held in custody or re-
quired to give security. The law still presumes his innocence,
and can do no more than to take such steps as may be necessary
to render his attendance at the trial certain.
The trial must be
conducted in accordance with the rules of evidence observed in
the ordinary courts; the person impeached can only be convicted
of a crime known to the law; the punishment follows that at-
tached to the same crime by the ordinary courts. Forfeiture of
rights can only occur after conviction. Impeachments, like in-
dictments, are methods of procedure in criminal cases, and
nothing more.

[... ...]

there is direct evidence that the point was
actually presented in the convention that devised the United States
constitution, and passed upon. It was first suggested by Gouverneur
Morris, who was a member of the convention framing the -New
York constitution. He said: "Is impeachment to suspend the
President's functions ? If it is not, the mischief will go on. If
it is, the impeachment will be merely equivalent to a displace-
ment, and will render the executive dependent on those who are
to impeach :" 2 Madison Papers 1154.
At a later day, having come to a definite conclusion, he in
conjunction with Mr. Rutledge moved that "persons impeached
be suspended from their offices until they be tried and acquitted." I
To this 'Mr. Madison replied: "The President is, made too de-
pendent already on the Legislature, by the power of one branch
to try him in consequence of an impeachment by the other. This
intermediate suspension will put him in the power of one branch
only. They can at any moment, in order to make way for the
functions of another who will be more favorable to their views,
vote a temporary removal of the existing magistrate :"
Professor Dwight seems to have never seen the records of the final Constitutional debates.

What period the Madison Papers pertain to is unclear but, I would surmise, the Constitutional Convention, before both the Federalist Papers and Elliot's Debates.

Also during the Constitutional Convention - on the last day - we have Alexander Hamilton's draft of the document that he envisioned, based on their discussions:

13   He may be impeached for any crime or misdemeanor by the two houses of the legislature, two thirds of each house concurring, and if convicted shall be removed from office. He may be afterwards tried and punished in the ordinary course of law. His impeachment shall operate as a suspension from office until the determination thereof.
If we put these in the (presumably) correct chronology:

1) Suspension isn't balanced, Madison argues.
2) Based on what I understand we decided, the President will be suspended from office after being impeached, says Hamilton.
3) Hamilton declares that the President will not be able to protect accomplices and adherents, thanks to the rules around impeachment.
4) Madison notes that they have a protection against misuse of Presidential pardons, if he tries to shelter an accomplice, which is to suspend the President. The person against whom he argues makes no attempt to rebut the point, seeming to concede the point, and moves to the next topic. Everyone votes and they sign the document.

Now obviously, this is undercut by the simple fact that the word "suspension" does not appear in the Constitution. However, as Professor Dwight also notes:

The Constitution of the United States simply refers to the
subject of impeachment without deffning it. It assumes the
existence of this mode of trial in the law, and silently points us
to English precedents for knowledge of details. We are reminded
of the statement, so often considered before, that "the constitution is an instrument of enumeration, and not of definition."
Which is to say, most of the Constitution is inferred from notes, reconstructions, the trust that absurdities are inaccurate readings, and the necessity of fulfilling the enumerated functions that were given in the document. As example, if the Supreme Court is to resolve disputes (as clearly required by the Constitution) and is the Supreme body for resolving disputes then it must also be the supreme body for resolving any dispute over the text of the Constitution. Anything else and they could not fulfill the function described, which would be an absurdity. It is not plainly written and yet it is so. Anything else would contradict reason and what otherwise is clearly true.

Any question of suspension has no factual answer except what the Supreme Court would decide if the question were to be posed.

However, the Court would be presented with a genuine conundrum. Any argument that a definition can only be extracted from the precise text of the Constitution, and no further, supplementary materials, no logic, no reconstructions, etc. would vanish the court itself. But, likewise, it seems unlikely that the Founders landed on the answer that the President is immediately suspended from office - as the earlier draft had it. There is no later evidence of that in the post-Convention period and we do not see it occurring in the impeachments that took place during the post-signing lives of the Founders.

More importantly, the Supreme Court would likely realise that, from a practical standpoint, they cannot create an "immediate suspension" power that had never been used before and which no one ever referenced except once in a single individual's possibly personally-idealized version of an early draft document. It would not fly.

But, I would argue, there is a straightforward resolution to the question. As with indictment, the grand jury has no special power so long as the suspect does not attempt to do something which would cause it to become impossible to hold a fair and evidence-driven trial. For example, if the accused tried to escape the country, tried to threaten witnesses, tried to bribe officials, etc. In these special situations where the basic justice became harmed, then the Grand Jury may go beyond indictment and its powers grow.

And so with impeachment.... It would resolve the question; it fits the history; it matches the underlying philosophies and norms of the judicial process; and it does seem like the Founders felt like they had a solution somewhere between immediate suspension and no suspension.
Old 01-18-2020, 02:11 AM
UltraVires is offline
Join Date: Jul 2007
Location: Bridgeport, WV, US
Posts: 16,444
Very interesting. I had never seen this debate before. One thing to point out though is that under the previous version, 2/3ds of each House had to vote to impeach the President before a trial and an automatic suspension. So there was a high bar before any real action could be taken.

You wouldn't want a suspension under the current impeachment rules where a majority vote of the House impeaches and suspends. Imagine the last year of the Obama administration. The GOP house could impeach Obama and Biden and then they are suspended and Paul Ryan is President. Then they slow walk the articles over to the Senate where the GOP similarly slow walks the trial.


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