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James Madison - "Impeach Bush Over Purgegate!"

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According to James Madison, the "Father of the Constitution," if a President were to order or allow the "wanton removal of meritorious officers" such as US attorneys, such an action "would subject the President to impeachment and removal from his own high trust."

The issue of the firing of people within the Executive branch for political purposes came up during a debate in 1789 about how to create agencies within the Executive branch that would be consistent with Article II, Section 2 of the US Constitution, which says that the President can appoint people (like US Attorneys/prosecutors), but they couldn't take office unless the Senate votes to confirm each individual appointment:


But if the President can nominate, and the Senate confirm somebody like a federal prosecutor, who can fire one? And what if they're fired for politcal purposes?

Madison's logic was straightforward, and came about in one of his first major speeches before the House of Representatives, on 17 June 1789, just a few months into his first term as a Congressman (he would later become Secretary of State and President). A bill was put forward to create what is today known as the State Department in a more formal fashion than had existed when George Washington had become the new nation's first President just three months before and appointed Thomas Jefferson as his Secretary of State Affairs.

As with other agencies brought into law by Congress, this new Department of Foreign Affairs being debated would have to exist under the oversight and supervision of the Executive Branch of government, led by the President. And, as such, how, Congress wanted to know, could they make sure that no President would ever allow good members of his various departments ("meritorious officers") to be fired for purely political purposes ("wanton removal")?

The Congressional Register from that day lays out Madison's entire speech. Because it's thorough and detailed, and offers a brilliant insight into the thinking of the most important of the Framers of our Constitution (Madison), I reproduce it in its entirety below. Because it's rather long, however, I've also bolded and italicized those parts that get right to the nub of the matter so you can skim it first, and then go back and read the entire thing in context.

The essence of the debate is over whether Congress or the President would have the power to fire people employed below the level of a Cabinet officer in the George Washington and future administrations. The conclusion of the majority - and thus the way the law is today - is that Congress felt that the Senate's approval of the hiring of federal officers was critical (a power the Patriot Act took away, and the Senate voted last week to restore), and that when it comes to firing them, the President has the power. However, if the President were to abuse that power to fire federal officials through the "wanton removal of meritorious officers," he should be immediately impeached.

This was particularly relevant since, in 1789, there were no federal crimes that had yet been defined. So when the Constitution said that a President could be impeached for "High Crimes and Misdemeanors" there were none specified at the time. (The first federal crime was specified in 1790.) So Congress, at this point, was in the process of both creating new executive offices and of defining impeachable "crimes." They were establishing precedents, and this was a grave matter. It would echo forward for centuries.

The Congressional Register 17 June 1789

The house went into a committee of the whole on the bill for establishing the department of foreign affairs, and resumed the consideration of the clause "to be removable by the president."

Mr. Madison [is called upon to speak].

















Shortly thereafter, Mr. Madison yielded the floor to Mr. Elbridge Gerry of Massachusetts, who argued against impeaching a President for firing an honorable man. "It is said that the president will be subject to an impeachment for dismissing a good man," Gerry noted. "This in my mind involves an absurdity."

Gerry then went on to build a case that no President would do such a thing, because his new appointment would also be subject to confirmation by the Senate. When the Senate considered the new appointment, it would be able to ask what had happened to the last person, thus bringing accountability of the President into the picture.

Mr. Gerry, of course, had not foreseen a day when a certain Senator Specter would be forced by ideologues in the White House to hire a right-wing operative. He never imagined such an operative could then slip into law over Senator Specter's name (but, according to the good Senator, without his knowledge) a change in the Constitutional requirement of Senate confirmation of presidential appointments to the position of federal prosecutors known as US Attorneys. And Congressman Gerry (after whom Gerrymandering would later be named - no saint himself) would, no doubt, have been boggled at the idea that that same operative would then would himself end up as a federal prosecutor.

Madison was prescient. The remedy for this High Crime against American democracy is impeachment.

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