WSJ January 11, 2020

Early Impeachments in 2020 Hindsight

By Max Raskin | 455 words

If you think impeachment is too political in 2020, remember 1804. That year saw two impeachment trials, including one of a Supreme Court justice, presided over by a vice president who had just killed a former Treasury secretary in a duel.

Thomas Jefferson was elected in 1800, after a nasty campaign that featured charges of foreign influence and dual allegiances. Jefferson’s first term saw acrimonious political discord—personal attacks on both sides fueled by a hyperpartisan press, one side clamoring to impeach leaders of the other. Sound familiar?

It was in this environment that the Jeffersonian Republicans in the House impeached two Federalists, Judge John Pickering and Justice Samuel Chase. In both instances, no real crimes were alleged. Beyond a patina of legalese, the impeachments boiled down to the more populist Jeffersonians’ deep political disagreements with Federalist judges.

Pickering’s impeachment stemmed from a case involving a Republican customs collector who tried to seize a ship owned by a prominent Federalist businessman. Pickering, a New Hampshire district judge, opened the trial with a drunken threat to cane a random attorney who happened to be in the courtroom at the time. Even more inebriated on the second day, Pickering declared: “If we sit here 4,000 years the ship will still be restored.” He then suddenly stopped the trial and ordered the case dismissed.

This was a clear case of mental unfitness for the federal bench, but the Constitution doesn’t authorize impeachment for mental unfitness. Nevertheless, the Senate convicted Pickering along partisan lines.

Chase was impeached for his judicial conduct. Most objectionable was a political speech given from the bench during a grand jury charge. Chase lambasted the Jeffersonian repeal of the Judiciary Act of 1801 and a recent change in the Maryland Constitution that expanded suffrage. It was a partisan speech from the bench decrying the politicization of the bench.

Yet the Senate acquitted Chase. His successful defense boiled down to a concession that his political harangue may have been indiscreet and ill-considered but not impeachable because no criminal offense was committed. Enough moderate Jeffersonians were convinced that this was a political prosecution and not what the Founders—many of them sitting in judgment—intended for impeachment. Sen. Israel Smith, a Jeffersonian from Vermont, expressed a view of the moderates that such unwise partisan impeachments would “establish a tyranny over opinions.”

Impeachment was never a sacred exercise carried out with clean hands and impartial minds. To pretend otherwise is to ignore the historical reality that the Founding Fathers were deeply political figures who relied on partisan institutions—especially a partisan press—to achieve partisan goals. When it counted, however, they steered away from impeachment as an everyday political cudgel.

Mr. Raskin is an adjunct professor of law at New York University.