With impeachment seeming likely to proceed this week, it’s time for a journey in the wayback machine to impeachments past.  We start, not with presidential impeachments but with the second impeachment of a federal judge.

In 1800, the Democratic-Republicans won the presidency (along with the House and Senate).  By that time, most (if not all) sitting judges were Federalists.  In fact, just before John Adams left the White House, the lame duck Federalists created several new judicial positions and quickly filled them (which in part led to the case establishing judicial review of unconstitutional laws — Marbury vs. Madison. 

Now, customs and the procedural rules governing trial were very different back then.  Supreme Court justices also had responsibilities for the federal circuits (the forerunner of today’s Court of Appeals) including presiding over trials when the Supreme Court was not in session.   And, in instructing the juries at the end of a trial, it was normal for judges to discuss all types of issues (including political issues) rather than limiting themselves to the law that applied to the case.  Needless to say, that meant that there were a lot of federal judges who frequently made disparaging comments about the President and Congress to juries (as well as making legal rulings that the Democratic-Republicans did not like).  As federal judges generally have life-time tenure unless they resign or are impeached, some members of Congress thought that the best solution was to start impeaching judges.  After successfully removing one district court judge who was probably no longer fit to serve for health reasons, Congress turned their attention to Associate Justice Samuel Chase.

The core allegations of the eighth articles of impeachment were allegations that Justice Chase had made erroneous rulings while a trial judge and displayed political bias in his decisions and charges to juries.  While the Democratic-Republicans had twenty-five Senators (out of thirty-four and thus could have removed Chase on a party-line vote), the best result on any of the articles of impeachment was a 16-16 vote on two of the eight articles.

There were two basic results of the impeachment of Justice Chase.  First, in the years that followed, judges became more cautious about displaying blatant partisanship leading to the modern tradition that judges are supposed to be (whether they are or not) unbiased in their rulings.  Second, and most significant for the history of impeachment, impeachment since then has tended to focus on active misconduct and abuse of powers by elected and appointed positions.  In short, since Justice Chase, the rule has been that simple disagreement with the decisions of an official — whether the President or a cabinet member or a judge — is not grounds for impeachment.  Somebody can do a bad job (at least as viewed by the opposing party) without being impeached and removed.  Impeachment is not the equivalent of a vote of “no confidence.”

While we hear from a certain individual who believes that he can do no wrong that any attempt to remove him from office is a sham or a witch hunt, he really should take a look at the impeachment of Justice Chase.  With the hindsight of 200 years, it is clear to legal historians that the impeachment of Justice Chase was a witch hunt and a sham.  Since then, impeachment charges have been based in substance — either a violation of the law or a violation of the customary norms defining the limits of the appropriate exercise of the powers of a given position.  As the later posts will note, some of these laws and customary norms were questionable, but the sixteen sets of articles impeachment adopted after the trial of Justice Chase either alleged abuse of power or the violation of some law or the oath of office (including one case of treason during the Civil War).