The founders were extremely clear about the importance of dealing with the abuse of executive power.
As House Democrats ramp up their impeachment investigation into President Trump, an increasingly vocal charge from the president’s supporters (and the White House) is that the House is attempting to “overturn” the results of the 2016 election.
The charge is that impeaching and removing an elected president is illegitimate because it is anti-democratic — because the person the voters (or, at least in this case, the Electoral College) chose ends up out of office. This argument is silly — impeachment is in the Constitution as a way of dealing with the abuse of executive power.
But to fully understand why the charge is ludicrous, it may help to go back 219 years — to the origins of a constitutional provision that receives virtually no attention in contemporary discourse, the 12th Amendment.
As “Hamilton” fans (and plenty of others) know, the election of 1800, in which President John Adams ran against his vice president and political rival, Thomas Jefferson, revealed a serious flaw in how the Constitution structured presidential elections. The founders, who did not anticipate the rise of political parties, provided for an Electoral College in which electors cast votes for two candidates — without specifying which one they supported for president and which one they supported for vice president. Under Article II, Section 1, Clause 3 of the Constitution, whoever received the most electoral votes would be president, and whoever received the second-most electoral votes would be vice president.
This arrangement meant, as was true after the election of 1796, that the vice president, and thus the president of the Senate, could easily be the president’s principal political rival. (Imagine if Hillary Clinton’s reward for losing the 2016 election was to serve as Mr. Trump’s vice president.) It also meant that, if every elector representing the party ultimately in the majority voted for both of the party’s candidates, there would be a tie no matter how large their relative majority was.
That’s what happened in 1800, when every Democratic-Republican elector cast their two electoral votes for the same two people — Vice President Jefferson and his putative running mate, Aaron Burr. Worse still, the Constitution provided that ties were to be broken by the previous (“lame duck”) House of Representatives — which, in February 1801, meant that the Federalists, who had just lost control of both the White House and both chambers of Congress in the 1800 elections, would nevertheless decide the nation’s fate. It took 36 contentious ballots in the House — and the growing threat of civil war — before the Federalists chose Jefferson, and a constitutional crisis was averted.
Congress responded with the 12th Amendment, proposed in December 1803 and ratified by the states, by the standards of constitutional amendments, practically overnight. That provision gave us the presidential elections we have today, in which electors cast one vote apiece for president and vice president. And so long as the current two-party system prevails, the 12th Amendment thereby all but guarantees that an elected vice president will be, if not from the same party as the elected president, at least the nominee of the same party.
Even after the 12th Amendment, there was still one scenario in which the impeachment and removal of the president would overturn the previous election — if the office of vice president was vacant. But that gap was closed with the 1967 ratification of the 25th Amendment, Section 2, which gives the president (with the consent of both chambers of Congress) the power to fill vice-presidential vacancies. That’s why, even if the House ultimately impeaches Mr. Trump and the Senate removes him, the result would simply be to elevate to the presidency Mr. Trump’s own handpicked running mate, Vice President Mike Pence — who could then nominate his own vice president under the 25th Amendment.
Against that backdrop, it’s difficult to see how removing Mr. Trump would “overturn” the results of the election, since the same party that won would remain in control of the White House. But there’s a deeper and more important point here: The founders wrote the impeachment and removal power into the Constitution at a time when that wasn’t true — when there was no 12th Amendment, and so it was entirely possible that removing the president from office would hand power over to one of his rivals.
That’s exactly what would have happened, for instance, if the Democratic-Republicans had taken over Congress in the 1798 midterm elections instead of in 1800, and then removed Adams in favor of Jefferson. But even in the face of that possibility, the founders still gave the House the power to impeach and the Senate the power to remove — because it was more important that the legislature should have a check on the executive.
Checks and balances run in both directions. To that end, the Constitution’s drafters took away the vice president’s power to preside over presidential removal trials in the Senate (and gave it to the chief justice). And although a bare majority of the House has the power to impeach, the founders required a two-thirds vote of the Senate for removal — to ensure that a geographically representative supermajority agreed with the House’s determination that the president had engaged in misconduct that should disqualify him from office.
This is why impeachment and removal remain extraordinary remedies for extraordinary misconduct by the president of the United States. But the founders would have been appalled at the suggestion that such measures are illegitimate solely because their result would be that the president is no longer the president. If that didn’t faze them even when the result could have been to hand the presidency to the president’s rival, it certainly wouldn’t faze them today, when it would hand the presidency to the president’s own handpicked running mate.
~Stephen I. Vladeck (@steve_vladeck) is a professor at the University of Texas School of Law.