U.S. senators in cases of impeachment generally consider themselves as jacks of several legal trades: each one is at once judge, jury member, prosecutor, and defense attorney. And they would each and all be excused from being fully accountable for the exercise of the ordinary responsibilities of any particular office.
When Senator Tom Harkin objected during the impeachment trial of President William Jefferson Clinton that the senators sitting as a High Court of Impeachment should not be referred to by the House Managers as "jurors," his intention was made clear to lawyers by his use of the term "exculpatory," which means, “Clearing or tending to clear from alleged fault or guilt; excusing.” (Black’s Law Dictionary)
The alleged fault Senator Harkin intended to excuse was jury nullification - to knowingly acquit a guilty person. “A jury in criminal case possesses de facto power of ‘nullification,’ to acquit defendant regardless of strength of evidence against him.” (Cargill v. State, 255 Ga. 616) Chief Justice William Rehnquist, presiding over the impeachment trial, ruled in favor of Senator Harkin's unusual motion.
Despite explicit instructions from judges to the contrary, ordinary juries in the United States knowingly albeit sparingly acquit guilty persons. On the prosecutorial side, grand jurors have fired prosecutors and run amok, conducting their own investigations as a "runaway grand jury." Indeed, it is a traditional practice of American jurors to occasionally defy judges, disregarding incriminating facts and taking exceptions to the law. American jurors resented the English practice, derived from the old days when juries were virtual organs of the King's court - if jurors returned a wrong or unwanted verdict, they might themselves be imprisoned for perjury - for violating their oath as jurors.
Now President Clinton was clearly guilty of perjury, an indictable offense in criminal courts, but the quasi-judicial, impeachment trial was undoubtedly a political farce. The President was acquitted because his fault was not deemed a threat to the well being of the political state. However that may be, Senator Harkin's motion was superfluous: in cases of impeachment, U.S. senators, as ultimate arbiters, enjoy prerogatives similar to those arrogated by aristocrats and legally exercised by nobles in the British House of Lords. Senators may make exceptions to rules and not be held accountable; their verdicts may not be set aside; indeed, almost anything they do under their oath as jurors before the Lord is as exculpable as the Lord’s deeds.
Of course the main fault to be exculpated during an impeachment trial occurs when the senators raise themselves above the law and the facts, and from that arbitrary position aloft fail to render impartial judgment according to law, as every juror or judge is bound to do under the rule of law instead of men. The fault is a most egregious one; for, at least in the United States of America, where it is said that the People are sovereign, and not Kings, Lords and Judges, and that all people are equal under the law, there is no higher public good in a free society than the absolutely faithful practice of the rule of law.
Notwithstanding such democratic abstractions, people are in reality governed by a few men and women who control the rule of law and its ceremonial application; nonetheless, legal impediments to the arbitrary exercise of power exist and should not be ignored lest violent consequences ensue. In cases of impeachment, it would be reasonable to expect, even though the impeachment process is widely regarded as a non-criminal, political farce, that the proceedings would be conducted according to a certain rule of law instead of the rule of senators.
Senator Harkin cited the impeachment clause - "The Trial of all Crimes, except in cases of Impeachment, shall be by Jury" - as the constitutional basis for his objection to the identification of senators as jurors. He further supported his motion for exculpation by citing certain clauses of Alexander Hamilton's Federalist writings, clauses he construe d to imply that he and his fellow senators had authority beyond triers of fact and law; to wit, that they had the ultimate, constitutional authority to decide what is good for the 'People.' Senator Harkin was remiss in not quoting, in support of his motion, one of James Madison's letters to Jefferson, stating that he, Madison, unlike Jefferson - who favored impeachment trial by juries- had been present during the constitutional debate and therefore knew the framers did not intend impeachments to be tried by juries.
Hamilton's argument against juried impeachment trials illustrates his own intentions if not that of the Framers at large. He insisted on "the necessity of a numerous court for the trial of impeachments," arguing that "the awful discretion which a court of impeachments must necessarily have, to doom to honour or infamy the most confidential and most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Hamilton believed a small jury would be too narrow-minded and too easily subjected to intimidation.
Hamilton did not explicitly rule out the Senate sitting as a large jury. It is safe to assume that fifty jurors might be broader-minded and less subject to intimidation that twelve jurors. Hamilton did refer to "the judicial character of the senate," and stated that the Senate is "the most fit depository of this important trust," such character being "the requisite neutrality towards those whose conduct may be the subject of public scrutiny," which would protect them and the nation from "the persecution of an intemperate or designing majority in the House of Representatives."
And that, he wrote, is why there is an "assigning to one house [Representatives] the right of accusing, to the other [Senate] the right of judging." The Senate, which is virtually the vestige of the House of Lords and the ancient King's Court, is a much smaller body than the House of Representatives, yet it larger than a jury of twelve peers. Our personal view is that a separate, independent Grand Jury, capable of appointing its own prosecutors, should sit year round and constantly conduct inquisitions into criminal conduct in high offices and render the appropriate indictments.
But why not try cases of impeachment in the Supreme Court? Because the accused is constitutionally subject to double jeopardy: an officer convicted in the Senate can also be indicted and tried in the criminal courts; their decisions, in turn, are subject to appeal to the U.S. Supreme Court. It would be unfair for the same branch of government, the Judiciary, to try both cases. However, Hamilton speculated on a possible combination of the Senate and Supreme Court. And now there exists a partial combination - the Chief Justice of the Supreme Court presides over impeachment trials in the Senate. Hamilton also discussed the notion of a completely independent court of impeachments, but reasoned that such a court would be impractical given the circumstances at the time.
Hamilton seems to feel that impeachment trials are criminal trials over which the Senate has jurisdiction. However, he understood very well that the crimes tried would be political crimes inasmuch as they are offenses "which proceed from the misconduct of public men, or in other words, from the abuse of violation of some public trust.... The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide into parties."
Of course every crime is a "political crime", in the broadest sense that all crimes offend the public, wherefore the state responds on behalf of the public with the prosecution of the offender. Crimes committed by persons of high authority might under that definition be called high crimes; even relatively minor crimes would have effects far broader and perhaps more severe consequences on the whole than serious crimes committed by ordinary persons. Yet under criminal law all offenders should be treated equally. A better definition of "political crime” might be more suitable, a definition that would include under political crimes "high crimes and misdemeanors" that present a clear and present danger to the existence of the state. There has been considerable controversy on the definition of 'crimes', in the clause 'high crimes and misdemeanors', ever since the first impeachment, of Senator William Blount, a prototypical American wheeler-dealer whose real estate speculations landed him in murky water.
Senator Blount, we recall, skipped bond and fled back to Tennessee on horseback. He was a hero in Tennessee, but the northern public was outraged. The impeachment trial proceeded in his absence. Several parties to the sometimes-brilliant debate in Congress were framers of the constitution. The senators conveniently determined that senators are not officers subject to impeachment. In fact they were far more interested in the Federalist versus Republican (Democrat) disputes over liberal and strict construction of the Constitution than in the fate William Blount. His impeachment, for instance, raised and put to rest the question of impeachment juries, rejecting the concept impractical for the Senate and probably unconstitutional as well. But the issue of indictable criminality was not settled.
As Vice President, Jefferson was president of the Senate during the Blount Affair. He researched the laws of impeachment and determined that, at least in his opinion, in order to be impeached, a man must be charged with an indictable offense. On January 27, 1798, Jefferson wrote to Senator Tazewell, an outstanding jurist who debated the issue during the Blount impeachment: "In Law-language the term crime is in common use applied to misdemeanors, and that impeachments, even when for misdemeanors only are criminal prosecutions."
Having closely observing the proceedings, Jefferson said Senator Blount had done anything wrong, and subsequently concluded that impeachment "is a farce which will not be tried again." In a letter to James Madison dated February 15, 1798, Jefferson wrote, "I see nothing in the model of proceeding by impeachment but the most formidable weapon for the purposes of a dominant faction that was every contrived.... I know of no solid purpose of punishment which the courts of law are not equal to, and history shows, that in England, impeachment has been an engine more of passion than justice."
Yet Jefferson himself eventually resorted to the farce, having it employed against certain Federalist judges who had denounced Jefferson's "Jacobin" principles from the bench. For instance, Judge Samuel Chase, rabble-rousing hero of the Revolution, took the bench and turned into a conservative tyrant, ostensibly to protect the gains made by the Revolution. In an effort to smother the growing independence of the Supreme Court in its crib, Jefferson pulled strings and had Judge Chase impeached. Chief Justice John Marshall was intimidated by the attack on the court: he suggested that it might be better to appeal undesirable Supreme Court rulings to the U.S. Senate instead of impeaching judges. That would have, ironically, moved the nation closer to the practice of the hated British system where the House of Lords served as the highest or supreme court and as trier of impeachments. Judge Chase was not convicted because it was held that he was not guilty of crimes. Jefferson's failure to suppress the Judiciary's independence with the impeachment "farce" failed; the early debate over whether the "high crimes and misdemeanors" of impeachment cases should be indictable offenses was, in a sense, the crucible in which the independence of the third branch was forged.
Not withstanding their leader's hypocrisy, in trying to rid the bench of judges because of their political affections, Jefferson's faction generally preferred their laws in writing. They would not be subject to the English common law, over which judges, particularly Federalist judges who retained certain sympathies for British culture, had so much arbitrary power. The democratic Republicans believed that all people should know exactly what conduct is illegal before they are charged with crimes - there must be no ex post facto or retroactive laws. It would seem that not only the lowest scoundrel but also even the President of the United States should know what is prohibited, and that high officers of the United States should know in advance exactly what conduct would subject him to impeach and trial in the Senate.
Today most authorities believe impeachments of a sitting president should require the commission of an indictable offense. But majority opinion changes with the wind. If the person one wants impeached did not commit an indictable offense, one might successfully argue that no such offense is necessary, that any sort of serious malfeasance in office is sufficient for impeachment, especially misconduct that allegedly endangers the safety of the nation. That is, if it behooves a lawyer to argue a criminal offense, he will do just that; but if a political offense will serve the purpose, he will proceed accordingly. He takes his pick: the law, or politics. Therefore the issue is never laid to rest, that both criminal and political offenses as grounds for impeachment remain arguable.
We might conclude from all this that impeachment proceedings should simply be a way of firing presidents and other high officers for serious misconduct in office.