Having discussed the great strength of the President during the previous day, the Convention now turned to the crucial control on that strength: impeachment. The form of the Constitution not just here but throughout the structure always ties power to responsibility. The President can be vigorous because the President is subject both to reelection and to impeachment. All-too-often when our political culture discusses the Constitution too much emphasis is placed on the checks. In placing such emphasis on these checks, we assume the essential purpose of the Constitution was to limit governmental power. But the Presidency is the example par-excellence which shows that this is a misunderstanding of the Constitution. Presidents can and should be powerful precisely because they are also checked. The existence of the check permits the robustness of the power. Checks insure against the abuse of power, not its vigorous use.
On the question as to what will be impeachable, it’s worth noting the language that Hugh Williamson first proposes: The President would “be removeable on impeachment and conviction for mal practice or neglect of duty.” That is, the uncontroversial notion of impeachment proposed here connected it not so much to crimes as to a failure to uphold the duties and responsibilities of the office. The term “high crimes and misdemeanors” was later adopted not because they had abandoned this “malpractice” notion of impeachment but because they were concerned that the language be somewhat more limiting on the legislature.
The Convention then debated why the executive in particular must be impeachable even as people like those in the Senate were not. Madison asserts that the nature of executive power requires impeachment:
He “thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust.”
The singular nature of executive power along with its high responsibilities such as its relations with foreign powers required a lever in the people by which to pull back on presidents who were abusing their power.
It’s impossible not to notice here that the Convention never speaks of impeachment in the legalistic way we have come to understand it. The nature of the executive power, which has little to do with questions of legality, make it necessary to hold executives to a standard that cannot possibly be reduced to legalistic questions. This is to say that our legalization of the impeachment power is both untrue to the founders’ intentions (no one at the Convention spoke of it this way) and, more importantly, untrue to the nature of executive power that the Convention debates help us think through.