Bribery and Impeachment: Why the Debate of September 8, 1787 Matters

Fact-based news outlets are reporting that Democrats are moving toward charging President Trump with the offense of bribery. Article II of the Constitution specifically enumerates bribery as an impeachable offense. 

This brief post makes no predictions. I’m simply taking you the Constitutional Convention. 

The minutes for these profound debates can be found in a Yale website called the Avalon Project (it is one of the most phenomenal web tools for research on the planet).

Here is the link for September 8, 1787 (https://avalon.law.yale.edu/18th_century/debates_908.asp). Let me republish the relevant part, without commentary. I’ll let you decide if this has significance or not.

***

The clause referring to the Senate, the trial of impeachments agst. the President, for Treason & bribery, was taken up. 

Col. MASON. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration."

Mr. GERRY seconded him.

Mr. MADISON So vague a term will be equivalent to a tenure during pleasure of the Senate.

Mr. Govr. MORRIS, it will not be put in force & can do no harm. An election of every four years will prevent maladministration.

Col. MASON withdrew "maladministration" & substitutes "other high crimes & misdemesnors agst. the State"

On the question thus altered

N. H. ay. Mas. ay. Ct. ay. N. J. no. Pa. no. Del. no. Md. ay. Va. ay. N. C. ay. S. C. ay. [FN13] Geo. ay. [FN14]

***

Mr. MADISON, objected to a trial of the President by the Senate, especially as he was to be impeached by the other branch of the Legislature, and for any act which might be called a misdemesnor. The President under these circumstances was made improperly dependent. He would prefer the Supreme Court for the trial of impeachments, or rather a tribunal of which that should form a part.

Mr. Govr. MORRIS thought no other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted. He was agst. a dependence of the Executive on the Legislature, considering the Legislative tyranny the great danger to be apprehended; but there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.

Mr. PINKNEY disapproved of making the Senate the Court of Impeachments, as rendering the President too dependent on the Legislature. If he opposes a favorite law, the two Houses will combine agst. him, and under the influence of heat and faction throw him out of office.

Mr. WILLIAMSON thought there was more danger of too much lenity than [FN15] too much rigour towards the President, considering the number of cases in which the Senate was associated with the President.

Mr. SHERMAN regarded the Supreme Court as improper to try the President, because the Judges would be appointed by him.

On motion by Mr. MADISON to strike out the words-"by the Senate" after the word "conviction"

N. H. no. Mas. no. Ct. no. N. J. no. Pa. ay. Del. no. Md. no. Va. ay. N. C. no. S. C. no. Geo. no. [FN16]

In the amendment of Col: Mason just agreed to, the word "State" after the words "misdemeanors against" was struck out, and the words "United States" inserted unanimously, [FN17] in order to remove ambiguity.

On the question to agree to [FN18] clause as amended,

N. H. ay. Mas. ay. Cont ay N. J. ay. Pa. no. Del ay Md. ay. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN19]

On motion [FN20] "The vice-President and other Civil officers of the U. S. shall be removed from office on impeachment and conviction as aforesaid" was added to the clause on the subject of impeachments.

The clause of the report made on the 5th. [FN15] Sepr. & postponed was taken up, to wit-"All bills for raising revenue shall originate in the House of Representatives; and shall be subject to alterations and amendments by the Senate. No money shall be drawn from the Treasury but in consequence of appropriations made by law."

It was moved to strike out the words "and shall be subject to alterations and amendments by the Senate" and insert the words used in the Constitution of Massachussetts on the same subject- [FN21] "but the Senate may propose or concur with amendments as in other bills"-which was agreed too nem: con:

On the question On the first part of the clause-"All bills for raising revenue shall originate in the house of Representatives' [FN22]

N. H. ay. Mas. ay. Ct. ay. N. J. ay Pa. ay. Del. no. Md. no. Va. ay. N. C. ay. S. C. ay. Geo. ay. [FN24]

Mr. Govr. MORRIS moved to add to clause (3) [FN25] of the report made on Sepr. 4. [FN26] the words "and every member shall be on oath" which being agreed to, and a question taken on the clause so amended viz-"The Senate of the U. S. shall have power to try all impeachments; but no person shall be convicted without the concurrence of two thirds of the members present; and every member shall be on oath"

N. H. ay. Mas. ay. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. ay. Geo. ay. [FN27]

Mr. GERRY repeated his motion above made on this day, in the form following "The Legislature shall have the sole right of establishing offices not herein [FN28] provided for," which was again negatived: Mas. Cont. & Geo. only being ay.

Mr. Me. HENRY observed that the President had not yet been any where authorised to convene the Senate, and moved to amend Art. X. sect. 2. by striking out the words "he may convene them [the Legislature] on extraordinary occasions" & insert "He may convene both or either of the Houses on extraordinary occasions." This he added would also provide for the case of the Senate being in Session at the time of convening the Legislature.

Mr. WILSON said he should vote agst. the motion, because it implied that the senate might be in Session, when the Legislature was not, which he thought improper.

On the question

N. H. ay. Mas. no. Ct. ay. N. J. ay. Pa. no. Del. ay. Md. ay. Va. no. N. C. ay. S. C. no. Geo. ay
***
Here is the resulting language:

Impeachment

ttee of Impeachment Managers in the Senate Chamber, Washington, D.C.

“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
— U.S. Constitution, Article II, section 4