Federalist Papers a clue to Founders' intentions Articles amplify Constitution's brief mention of impeachment


A document dealing with such matters as furtive White House meetings and a dress from the Gap was the most talked-about publication in America this weekend.

But another, more venerable, volume was getting substantial attention: The Federalist Papers, the collection of articles published by Alexander Hamilton, John Jay and James Madison in 1787 and 1788 to make their case for the adoption of the Constitution.

The Federalist articles, in addition to their many other contributions, amplified the bare description in the Constitution that the president, vice president and other officials could be "removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

On Friday and Saturday, President Clinton's lawyers cited the Federalist liberally in their rebuttals to the report of Whitewater independent counsel Kenneth W. Starr to support their argument that the Founders intended impeachment as a penalty for official, not personal, misdeeds.

And legal experts from coast to coast were reading dog-eared copies to reporters through the weekend, much as they did in the Watergate era, to try to put some meat on the exceedingly bare bones of the Impeachment Clause.

Michael Gerhardt, an impeachment expert and a professor at the College of William and Mary School of Law in Williamsburg, Va., acknowledged in an interview that the Federalist does not usually receive quite this much attention.

"I can't say that it does," Gerhardt said. "It would be nice to see more people familiar with the contents of the Federalist Papers. But this is a constitutional process, and at these times we concern ourselves with questions of the Constitution's meaning, and the Federalist is one of the great sources that sheds light on constitutional meaning."

The Federalist, most experts quickly noted, does not answer the precise question of today: Is a president subject to impeachment for the disastrous aftereffects of an affair with a White House intern?

Many American newspapers quoted the portions of the Federalist cited by the president's lawyers in recent days, and the 200-year-old articles were mentioned on television and the Internet.

Hamilton was center-stage again. Those charged with conducting impeachment proceedings in a democracy had a tough assignment, he counseled in an article first published in the New York Packet on March 7, 1788.

"A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective," he said in the Federalist, No. 65.

In recent years, there may have been no more vivid verification of Hamilton's insight than the stricken looks this weekend on the faces of members of the House, which, under the Constitution, is designated to vote on whether to impeach, and in the Senate, whose members are supposed to hear the case.

The White House noted assertively that back in 1788, Hamilton went on to say that impeachment is intended "for those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

Hamilton went on to say, "They are of a nature which may with peculiar propriety be denominated POLTICIAL [sic], as they relate chiefly to injuries done immediately to society itself."

Hamilton's capitalization of political, more than one legal commentator noted, signified that the Founders meant impeachment to deal with official misdeeds of a high order, not with petty squabbles.

Or sex scandals involving assertions of perjury, obstruction of justice and abuse of power? Hamilton was silent on a point, for a change.

But he made it clear (in the Federalist, No. 69) that he and his colleagues did anticipate the possibility that an impeachment proceeding might embarrass the chief executive.

One difference between the president and the British king, he noted, was "the one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable."

The Federalist pulled no punches when predicting that proceedings to remove officeholders in a republic are likely to be painful and divisive for the entire country. That was only to be expected of an impeachment, Hamilton said.

"Is it not designed," he asked his readers, "as a method of NATIONAL INQUEST into the conduct of public men?"

Whatever else the Federalist has contributed to the debate about Clinton, some of the experts suggested, it hit the nail on the head with that description that an inquiry into the conduct of a president would amount to nothing less than a national inquest, which, even without its letters capitalized, sounds like a grave process.

Hamilton described the final judgment in impeachment proceedings in momentous terms: "to doom, to honor or to infamy the most confidential and the most distinguished characters of the community."

Gerhardt, the impeachment expert, said he was heartened by the popularity of the Federalist in recent days.

"This is what should be going on," he said. "People should not be concerned with reading the tea leaves of partisan politics, but should be trying to grope with the deeper questions of constitutional meaning."

But he did not predict that the popularity of the Federalist would quite equal that of the independent counsel's report.

Pub Date: 9/14/98

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