Why Impeaching a Former President Wouldn’t Have Surprised the Founders

What the British Parliament’s 1787 impeachment of a colonial governor tells us about whether the Senate can try Donald Trump.

The Senate impeachment trial of former President Donald Trump is, according to a brief filed earlier this week by Trump’s lawyers, “a legal nullity that runs patently contrary to the plain language of the Constitution” because you can’t remove a president “from an office he no longer occupies.” Trump’s case, Trump’s legal team writes, “must be dismissed with prejudice.”

But that isn’t true. Meet Warren Hastings, governor of India during the reign of King George III, whose impeachment (in England) filled America’s newspapers in 1787 when the Constitutional delegates were meeting.

The Constitution doesn’t directly address whether the Senate can conduct an impeachment trial against a person no longer in office. But that didn’t keep the Senate from doing so on two occasions, as noted in the House’s impeachment trial memorandum. Indeed, the very first impeachment trial, in 1799, concerned a Tennessee senator whom the Senate had expelled a year earlier. With Vice President Thomas Jefferson presiding, the Senate considered the case. Jefferson himself had endured an impeachment inquiry eight years earlier—after he completed his term as Virginia governor (for abandoning Virginia’s capitol in the face of British troops in 1781).

Trump’s Senate trial would not have struck the Founders as strange because during the Constitutional Convention, which ran from May 14 to September 17, 1787, the Philadelphia newspapers were full of news about Parliament’s proceedings against Hastings, who’d resigned his position two years before. One delegate, George Mason from Virginia, brought up Hastings’ impeachment on September 8 when he argued that treason should not be the sole basis for impeachment.

Hastings was impeached on 20 counts, the main thrust of which was that Hastings waged unnecessary wars throughout India and requisitioned Indian treasures, including the horde of the mother and grandmother of the ruler of the state of Awadh (the “Begums of Oudh”). Under Hastings’ leadership, Britain unified the governance of India from three districts (Madras, Bombay and Calcutta) to one, destabilizing older cooperative agreements that the British had struck with the Mughals and other Indian dynasties. Parliament also reviewed Hastings’ policies during the Bengal famine of 1772, in which, according to his own report, one third of the people in the affected regions died—somewhere between two and 10 million people, according to modern analyses.

The underlying issue was whether Indians were “people over whom we exercise dominion founded on the right of conquest,” to use Hastings’ own words in 1784. Perhaps it surprises you that scruples concerning the “right of conquest” ever troubled the British Empire in its heyday. Actually, the principles on which Great Britain exercised colonial sovereignty were a matter of considerable debate among British legal authorities. It was a matter of dispute, for instance, whether these far-flung populations (in the Americas, India, Ireland, and Africa) possessed any rights as British subjects—a question that would have sounded very familiar to the former colonists gathered in Philadelphia, who’d just fought a war over it. Questions about indigenous power and racial identity also surfaced in Parliament’s debates over Hastings’ impeachment. Even Hastings grappled with them to some extent, promoting greater knowledge of Indian culture and traditions, and greater empathy, even as he insisted that unrestricted dominion was the legal basis for British sovereignty.

The prosecution was an all-star affair, led by Edmund Burke (the political philosopher who would go on to write Reflections on the Revolution in France) with assistance from, among others, Richard Brinsley Sheridan (the playwright who’d already written The School for Scandal and The Rivals). Both men were Whig members of Parliament. A five-hour speech by Sheridan attracted particular notice and was remembered afterward as one of the great orations in British history. As published in the Philadelphia Evening Herald on May 9, 1787—mere days before the Constitutional Convention began—Sheridan condemned Hastings’

eternal deviation from rectitude. He either tyrannified or deceived. . . In his mind all was shuffling, ambiguous, dark, insidious, and little: nothing simple, nothing unmixed: all affected plainness, and actual dissimulation. A heterogeneous mass of contradictory qualities; with nothing great but his crimes, and even those contrasted by the littleness of his motive, which at once denoted both his baseness and his meanness, and mark’d him for a traitor and a trickster: nay in his style and writing, there was the same mixture of vicious contrariactics.

Such speeches, printed at great length in 18th century newspapers, would have been hard to miss, given that these papers were typically only four pages long and published only once per week. Hastings was famous in America and would remain so for years as his trial dragged on in the House of Lords. No final verdict would be given until eight years later, in 1795, by which time one-third of the British peers present for the initial testimony were dead. Hastings was acquitted, at least in part because the larger debate about the nature of Britain’s claim for empire remained unsettled. This difficulty had been anticipated by George Mason at the Constitutional Convention when he said that “Hastings is not guilty of treason. Attempts to subvert the Constitution may not be treason.” That possibility, Mason said, made it “the more necessary to extend the power of impeachments” to include “other high crimes and misdemeanors.”

In considering impeachment, the Founders were much less interested in whether the Senate would try current officials or past ones than they were in the types of crimes to be punished. The crime that the article of impeachment accuses Trump of committing—“inciting violence against the Government of the United States”—would have ranked at the very top.

The possibility that a president and his corrupt associates might attempt to commit treason was an issue that many delegates to the convention openly worried about. According to Madison’s notes,

Mr. [Edmund] Randolph moved to “except cases of treason” [from the president’s pardon power].  The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

In the end, Randolph’s exception was not adopted, but only because the Founders wanted to leave the president free in a national emergency to bargain with traitors, or pardon any who were convicted of treason and sentenced to death but deserved reprieve. It was during the Constitutional Convention that John Hancock, the newly elected governor of Massachusetts, pardoned the leaders of Shays’ rebellion, the event that precipitated the calling of the Convention.

Even more outrageous than what Trump said to incite the Capitol assault while the Senate counted electoral votes was what he didn’t say or do to stop it. It’s well known that Trump waited hours to tell the rioters to leave the Capitol even as police were being injured by the mob. “We have one officer who lost his life as a direct result of the insurrection,” the chairman of the Capitol Police Union said in a prepared statement.

Another officer has tragically taken his own life. Between [the U.S. Capitol Police] and our colleagues at the Metropolitan Police Department, we have almost 140 officers injured. I have officers … who have sustained brain injuries. One officer has two cracked ribs and two smashed spinal disks. One officer is going to lose his eye, and another was stabbed with a metal fence stake.

Some of the blame for poor preparation rests with top police officials for not supplying those present with sufficient helmets and other protection. But much of it rests with the Trump administration. Chris Miller, the president’s handpicked acting defense secretary, issued an order for Jan. 6 that made the National Guard unavailable to quell disturbances unless he authorized them personally. While the rioters spread through the Capitol, Miller refused to give that authorization, and Trump declined to intervene, even as the chief of the Capitol Police, the Republican minority leader, and others begged for his help. In the end, it took Vice President Mike Pence, acting in defiance of Miller’s order and outside the chain of command, to send in the National Guard.

As a historian, I can confirm that Mason and the other Founders would have agreed that abetting the insurrection attempted on Jan. 6 constituted “high crimes” if not actual treason. Compare his actions to Washington’s in 1783, at the Continental Army camp in Newburgh, New York, when George Washington faced down officers passing around a letter that proposed they surround Congress at Philadelphia to demand their overdue pay. This plot was never carried out, but it bears comparison to what the insurrectionists did on Jan. 6. Washington’s condemnation was unequivocal: “My God! What can this Writer have in view, by recommending such measures?  . . .  Can he be a friend to this Country? Rather, is he not an insidious Foe?”

I leave you to contemplate whether Sheridan’s description of Hastings can be applied to Trump’s actions surrounding the Jan. 6 putsch:

The prisoner pleads that he is not accountable for the cruelties which were exercised. His is the plea which Tyranny, aided by its prime minister, Treachery, is always sure to set up….  It will not, I trust, be concluded that, because Mr. Hastings has not marked every passing shade of guilt, and because he has only given the bold outline of cruelty, he is therefore to be acquitted.

When the House of Lords acquitted Hastings in 1795, it flinched from imposing penalties that included possible execution and forfeiture of lands. A Senate conviction of Trump under the U.S. Constitution would merely bar Trump from holding public office or collecting substantial post-presidential monetary benefits. It is an entirely reasonable punishment for a president who offered “nothing great but his crimes.”

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Holly Brewer

Holly Brewer is Burke Professor of American History at the University of Maryland and author of By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (2005). This essay appeared in Backbencher from Timothy Noah.