Thursday, July 05, 2007

Madison on suspicious sheltering and its constitutional consequences

By AviShalom

In the Virginia ratifying convention for the US Constitution,

George Mason argued that the President might use his pardoning power to "pardon crimes which were advised by himself" or, before indictment or conviction, "to stop inquiry and prevent detection." [The points applies equally to commuting a sentence.--ed.]

James Madison's response:

[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty...

These quotes are located within a document prepared by the House Judiciary Committee in 1974. The passage quoting Madison's words has a very germane footnote by the author of the original source being cited by the Committee:

Madison went on... that the President could be suspended when suspected, and his powers would devolve on the Vice President, who could likewise be suspended until impeached and convicted, if he were also suspected.

The reference to the President or Vice President being "suspended until impeached and convicted" is worth thinking about, as is Madison's apparent claim that the House of Representatives can "remove" the President.

All impeachment procedures in other presidential systems that I am aware of provide explicitly for the suspension from all duties of the impeached official, pending trial. Obviously a suspension (which indeed would be at least a temporary removal) is neither explicit in the US Constitution nor has it been practiced in the two actual impeachments of US Presidents. But did Madison believe an impeached (but not yet tried) President or Vice President would be suspended from office? Did he perhaps even believe that the official in question could be suspended before the full House votes impeachment? One might infer that from the footnote quoted above. Did he believe that in the event of impeachment processes against both the President and the Vice President there would be an Acting President? Any Acting President, of course, in this scenario, would be the Speaker of the House. (And, following the passage of a bill of impeachment, is there any time limit on how long the party controlling the Senate's agenda can wait to begin a trial...?)

My emphasis in the quotations above, of course. Just working on that table-setting, the importance of which can hardly be over-emphasized...

Michael quoted Keith Olberman yesterday referencing these words of Madison, but I was not aware of their original source and context till today.

The above post was cross-posted at Fruits & Votes.

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