Trump: Impeach Uncooperative Judges

It's an old idea—with a bad history

Thomas Jefferson

President Trump and his yes-persons recently touted this notion: federal judges who rule against the president’s orders, for being unconstitutional, or who demand that the administration comply with the law, are committing high crimes and misdemeanors and must be removed from the bench via the Constitution’s impeachment process. As many observers have rightly noted, that’s more or less the definition of a constitutional crisis.

There’s nothing novel about Trump’s notion. Nor is it anti-constitutional. This doctrine of supposed presidential supremacy over the judicial branch is based on a very early U.S. constitutional theory, which veered so hard toward arbitrary government that it had to be overcome by a different constitutional theory.

Chief author of the theory now being revived by Trump was Thomas Jefferson.

The bad history of the Jefferson administration on this issue suggests that it might not be fair to call presidential supremacy over the judiciary a theory. Maybe it was—and still is—nothing but a weapon in a contest over power, but the important thing is that it’s always been cast in hyperconstitutional terms. Trumpists are appealing to the constitutional impeachment power as a remedy for the president’s being obstructed in carrying out what they claim is his sworn constitutional duty. They’re calling the judges not just wrong but criminally dangerous to the country.

And that’s how President Jefferson construed the issue, in 1803, when at his behest, the Republican majority in the House brought articles of impeachment against Supreme Court Justice Samuel Chase. Ah, Justice Chase—it’s easy to see why Jefferson and his supporters might find him irritating. A portly man with long white hair, the judge was known behind his back as Bacon Face, because in longwinded opinions from the bench he wound himself up to such rancor against the administration that he literally turned red.

Jefferson didn’t find Chase irritating. He hated him. But he also hated the whole Supreme Court and was hoping to make Chase the first casualty in a campaign to submit the judicial branch to the will of the presidency.

The Court, for its part, was trying to subdue Jefferson and the executive branch. The federal judiciary had been shored up, in 1801, as the Federalist Party’s last bastion in the federal government, via midnight judicial appointments by John Adams, the defeated, outgoing Federalist president, because that’s how we did things in those bygone days of the virtuous early republic. Chief Justice John Marshall, highest of High Federalists (and Jefferson’s distant cousin), hated Jefferson, the Republican Party, and the outright tyranny he believed the presidency was turning into; Jefferson hated Marshall—“the Federalist serpent in the democratic Eden of our administration,” he called him—and believed that Adams’s lame-duck appointments made the entire federal judiciary unconstitutional.

Early days indeed. Everything was a power grab. Men we often take for serene philosophers of rational republican process were intensely invested in carrying out a sharp-elbowed, zero-sum jostle over control of the cockpit. It hadn’t even been clear who was supposed to decide what’s constitutional or unconstitutional until Marshall, escalating the jostling, delivered his famous opinion in Marbury v. Madison, which established the constitutional principle of judicial review (not in itself new) in the U.S. federal government and confirmed the Court as arbiter.

For that ruling, Jefferson wanted Marshall himself removed from office for anti-constitutional overreach. Biding his time, however, the president began by taking down Bacon Face.

The Chase impeachment will forever serve as a glaring example of partisan, selective prosecution, pushed by a president. But while that example came early in our national history, high degrees of executive corruption weren’t new even then. During the Adams administration, Secretary of State Timothy Pickering had scanned the newspapers looking for editors who would make good examples for prosecution on grounds of sedition—a term the Federalist majority defined as criticizing the president. (Some of Trump’s efforts rely on the Alien Enemies Act, also passed during the Adams administration.)

As an opposition leader, Jefferson raged against Adams for abusing the power of the presidency to punish political enemies. Then, in office, Jefferson and his supporters followed Adams’s lead and construed any attack on the president as an attack on the republic itself. The articles of impeachment against Justice Chase invoked an old, conveniently vague precedent in English constitutional law, impeachment on the basis of “bad tendency,” and accused the judge of harboring a bad tendency toward sedition.

The trial was held in the Senate in January of 1805. It was presided over by Vice President Aaron Burr.

That was a bit of a surprise. Burr was a fugitive from justice in New York and New Jersey, having killed Alexander Hamilton in a pistol duel. The charges were absurd—the event was out of New York’s jurisdiction, having taken place in New Jersey precisely because that state had no anti-dueling law—yet so high was the temporary public outrage over losing a suddenly sainted Hamilton that Burr had bolted.

He’d also been dropped, for other unfair reasons, from Jefferson’s successful reelection ticket of 1804 and was serving only until March, when Jefferson and his new vice president would be inaugurated. Presiding over Chase’s impeachment trial was to be Burr’s final act in the upper chamber, where he’d served both as a senator and as vice president.

Jefferson and Burr had come at odds, obviously. And yet the president now did everything he could to buy Burr’s loyalty and thereby ensure the conviction of Chase. Republican lawmakers privately tried to get the New Jersey governor to drop charges against Burr. The vice president’s friends and family members were given lucrative federal appointments.

Because that’s how we did it, back in the good old days.

It didn’t work, in this case. Burr had far greater political integrity than Jefferson (or Hamilton, for that matter). He took his responsibilities seriously and ran the trial with an impartiality noted even by his enemies. Pissing Jefferson off in the process was lagniappe.

The proceedings were funny. I’ll get into them, briefly, in a new book.

For now, two facts stand out, for me:

1) there was no legitimate case against Chase (being an overbearing jerk, fairly common courtroom behavior at the time, didn’t equate with any tendency toward sedition);

2) enough Republican senators, accepting that fact, crossed party lines to defeat the supermajority needed to get the conviction their president wanted.

So Chase was acquitted. Jefferson, unlike Trump, was overwhelmingly popular: it took some guts to buck him. See, sometimes, in the early days of the republic—and in later days too—the right thing could be achieved.

Can it still?

Two considerations, drawn from the Chase trial.

A degree of jostling among the branches was part and parcel of the original design. As the story here shows, crudely partisan imperatives did drive a lot of action, but there was also pride—even machismo—in identifying with a branch of government, not just with a party. Senators were preeningly proud of their chamber. They didn’t like seeing its prerogatives impinged on, either by the House or by the president, so they pushed back. The House didn’t like being pushed around by the Senate or the president; it pushed back too. While I think Jefferson’s corruption in this case went beyond the pale of even the roughest legit play, I recognize that sharp elbows and musclings-in can have the effect, more or less intended, of checking sharp elbows and musclings-in. Some of that kind of stuff, coming from Marshall, on behalf of the judicial branch, is what got us judicial review in the first place, for better and for worse.

The other consideration comes from Burr’s farewell speech to the Senate. He concluded with this: “If the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.” Some of the senators started crying.

Burr didn’t mention the body’s having just defeated Jefferson’s overreach in the Chase case. But I’d bet Jefferson took Burr's point: subsequent events show it made him even madder. I’d also bet that today's Senate majority, and for that matter the minority, don't know what I’m talking about here, and what Burr was talking about there. Or don't even care.