TURLEY TO PRINTER 11/30/99 3:15 PM Duke Law Journal VOLUME 49 OCTOBER 1999 NUMBER 1 SENATE TRIALS AND FACTIONAL DISPUTES: IMPEACHMENT AS A MADISONIAN DEVICE JONATHAN TURLEY† ABSTRACT In this Article, Professor Turley addresses the use of impeachment, specifically the Senate trial, as a method of resolving factional disputes about an impeached official’s legitimacy to remain in office. While the Madisonian democracy was designed to regulate factional pressures, academics and legislators often discuss impeachments as relatively static events focused solely on removal. Alternatively, impeachment is sometimes viewed as an extreme countermajoritarian measure used to “reverse” or “nullify” the popular election of a President. This Article advances a more dynamic view of the Senate trial as a Madisonian device to resolve factional disputes. This Article first discusses the history of impeachment and demon- strates that it is largely a history of factional or partisan disputes over legitimacy. The Article then explores how impeachment was used historically as a check on the authority of the Crown and tended to be used most heavily during periods of political instability. English and colonial impeachments proved to be highly destabilizing in the ab- sence of an integrated political system. The postcolonial impeachment process was modified to convert it from a tool of factional dissension to a vehicle of factional resolution. This use of Senate trials as a Madisonian device allows for the public consideration of the full rec- † J.B. and Maurice C. Shapiro Professor of Public Interest Law at George Washington University. For Benjamin John Turley, who was born during the research and writing of this Article. 1 TURLEY TO PRINTER 11/30/99 3:15 PM 2 DUKE LAW JOURNAL [Vol. 49:1 ord as the foundation for a vote of “true consent.” In this unique fo- rum, an impeached official is subject to a decision of the public— through the cipher of the Senate—as to his legitimacy in carrying out constitutional duties. As such, Professor Turley concludes that, prop- erly utilized, the Senate trial represents the quintessential Madisonian moment. TABLE OF CONTENTS Introduction................................................................................................2 I. The Historical Use of Impeachment Trials During the Early English and Colonial Periods.......................................8 A. English Impeachment Trials...................................................9 B. Colonial Impeachment Trials...............................................21 II. The Role of the Senate Trial in the Constitution and the Constitutional Debates .........................................................30 III. Factional Disputes and Senate Trials in the Constitutional Period ......................................................................................43 A. Early Federal Impeachments of “Other Civil Officers” ......................................................................44 1. The Blount Case ..............................................................45 2. The Belknap Case ...........................................................53 B. Impeachments of Judicial Officers ......................................57 C. Impeachments of Presidents.................................................76 1. The Johnson Impeachment ............................................84 2. The Nixon Inquiry...........................................................92 3. The Clinton Impeachment .............................................96 IV. Impeachment as a Madisonian Device.........................................109 A. Factions and the Madisonian Democracy.........................109 B. Senate Trials and Legitimacy Questions in the Impeachment Process ..............................................117 Conclusion ..............................................................................................143 INTRODUCTION Alexander Hamilton once warned that charges of impeachable conduct “will seldom fail to agitate the passions of the whole com- munity, and to divide it into parties more or less friendly or inimical to the accused.”1 Hamilton’s words have proven prophetic in the two 1. THE FEDERALIST NO. 65, at 396-97 (Alexander Hamilton) (Clinton Rossiter ed., 1961). TURLEY TO PRINTER 11/30/99 3:15 PM 1999] IMPEACHMENT AS A MADISONIAN DEVICE 3 presidential impeachments and the majority of judicial impeachments brought before Congress. Given this history, it is striking how little attention has been paid to the role of impeachment in the resolution of factional divisions over the legitimacy of judges and Presidents to continue in office. While the Madisonian democracy2 was designed to regulate factional pressures, the moment of greatest factional divi- sion—impeachments (and specifically presidential impeachments)— has largely escaped academic attention. Rather, academics and legisla- tors often discuss impeachment as simply a process of removal and ignore the important institutional functions beyond its corrective conclusion. This Article addresses the use of impeachment, and specifically the Senate trial, as a method of resolving factional disputes over ex- ecutive or judicial legitimacy. The Senate impeachment function is distinct from the function of the impeachment decision in the House of Representatives in both its structural and political characteristics. The House of Representatives performs a critical role as a check on presidential misconduct and deters such conduct through its detec- tion and referral of impeachable offenses. The Senate function is quite different.3 It is “political” in a uniquely Madisonian sense. The 2. Like many academics, I use the term Madisonian democracy with the understanding that it is an often imprecise generality. See Cass R. Sunstein, Interest Groups in American Pub- lic Law, 38 STAN. L. REV. 29, 29-30 (1985) [hereinafter Sunstein, Interest Groups]; see also Big Government Lawsuits: Are Policy Driven Lawsuits in the Public Interest?: Hearing Before the Senate Comm. on the Judiciary, 106th Cong. (1999) (testimony of Prof. Jonathan Turley) (dis- cussing Madisonian democracy and the separation of powers). As will be shown, however, the main focus of this Article is Madison’s emphasis on factions and procedural checks and bal- ances. 3. While both judicial and presidential impeachments will be discussed, this Article will address presidential impeachments as the working analytical model because of the emphasis on presidential impeachments in the constitutional debates and the heightened controversy over such decisions by the legislative branch. The thrust of the argument in this Article was made by the author as a witness in the House Impeachment Hearings of President William Jefferson Clinton. See Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. 250-76 (1998) [hereinafter House Hearings] (testimony of Prof. Jonathan Turley); see also Indictment or Impeachment of the President: Hearings Before the Comm. of the Judiciary, Subcomm. on the Constitution, Fed- eralism, and Property Rights, 106th Cong. (1999) (testimony of Prof. Jonathan Turley); Jona- than Turley, Congress as Grand Jury: The Role of the House of Representatives in the Impeach- ment of an American President, 67 GEO. WASH. L. REV. 735 (1999) [hereinafter Turley, Congress as Grand Jury]; Jonathan Turley, The Executive Function Theory, the Hamilton Af- fairs, and Other Constitutional Mythologies, 77 N.C. L. REV. 1791 (1999) [hereinafter Turley, Executive Function Theory]; Jonathan Turley, Reflections on Murder, Misdemeanors, and Madison, 28 HOFSTRA L. REV. (forthcoming 1999) [hereinafter Turley, Murder, Misdemeanors, and Madison]; Jonathan Turley, From Pillar to Post: The Impeachment and Indictment of a TURLEY TO PRINTER 11/30/99 3:15 PM 4 DUKE LAW JOURNAL [Vol. 49:1 Senate trial serves as a unique forum for resolving highly divisive questions over the legitimacy of a President or judge to continue to exercise constitutional authority. As such, it performs a role central to the maintenance of a representative system based on true consent of the governed. Senate trials are often presented as relatively static events solely focused on removal.4 This Article advances a more dynamic view of the Senate trial as a Madisonian device to resolve factional disputes.5 In crafting the American legislative process, Madison sought to ad- dress the destabilizing effects of factional disputes within democratic systems. Madison believed that leaving such disputes unaddressed would create intrigue and instability within a political system.6 For that reason, the Madisonian process does not seek to suppress, but to transform factional interests. This emphasis on resolving factional disputes gives the system the ability to withstand crushing pressures during periods of enormous social, political, and economic turmoil. Presidential impeachment cases constitute the most extreme and the most dangerous form of factional dispute in the legislative branch. When a President is impeached, the House certifies not only that impeachable conduct may have occurred but that a majority of House members question the legitimacy of the President to govern. Sitting American President (Oct. 1, 1999) (unpublished manuscript, on file with author). 4. During the Clinton impeachment, this dominant view emerged from the testimony and writings of a number of academics. These scholars rejected the notion that the House of Repre-