Checks on the head of state have evolved

By SUSAN AMUSSEN | Special to The Washington Post | Published: January 24, 2020

How do you hold the head of state responsible for alleged misconduct? This is not just the problem facing the U.S. Senate today, but a question with a long history.

For much of history, solutions were extrajudicial: Rulers faced armed revolt; they were imprisoned and even murdered. The U.S. Constitution sought to produce a remedy that was less seismic: impeachment, a method of peacefully removing the president. The Founding Fathers instituted such a provision not just because of concerns about potential presidential tyranny, but also because they knew how necessary it was thanks to the history of 17th-century England. Impeachment solved what we might call the “Charles I problem.”

The impeachment process in the Constitution was based on a process that had developed in England in the 1620s. It was part of an effort by some members of Parliament to gain control over the executive, and used throughout the 17th and 18th centuries, with a famous case — the trial of Warren Hastings — taking place at roughly the same time as the Constitutional Convention in America. The early targets were judges and administrators who were accused of bribery in 1621. The basic structure was established: The House of Commons gathered evidence and made charges, which were then judged by the House of Lords.

Parliament was not, however, an independent branch of government. It met when called by the king, and the king had the power to end a parliamentary session at any time. In 1626, when the House of Commons went after the Duke of Buckingham, the favorite of King Charles I, who was impeached not just for his corruption (which was shocking even by 17th-century standards), but for the murder by poison of the previous king, James I, the charges were explosive. But King Charles simply dissolved Parliament before the duke’s trial was completed.

The ability of the Duke of Buckingham to escape justice thanks to royal favor revealed a critical flaw in the impeachment process.

A generation later, the English Civil War ended in the defeat of Charles I in 1646. After long negotiations, and a second civil war, those who remained in Parliament wanted to try the king. This was impossible under English law, because the king as the source of justice could not be judged by it. The House of Commons established a special “High Court of Justice” to try the king, and when the House of Lords refused to approve the legislation, the House of Commons declared that as “the people, under God, are the origin of all just power,” they did not need approval from the Lords. The legal reasoning was sufficiently dubious that even many who opposed the king stayed away from the trial.

Charles I was charged with high treason, waging war against his people and conspiring to deprive them of their rights and liberties. In a trial that took place 371 years ago, the king refused to plead, repeatedly asking by what right the court sat. This drew attention to the way the court — both in its composition and the charges — represented a novel legal theory. On a strictly legal basis, the king had the better arguments. His refusal to present a defense was interpreted as a plea of not guilty, and rejecting his claims that they lacked authority, the court found Charles I guilty and he was executed on Jan. 30, 1649.

Just as Buckingham’s trial had revealed the problem of royal control of Parliament, Charles I’s trial revealed the inability of the English system to address misconduct by the head of state.

The popular histories of Britain in the late 18th century all made the legal challenges involved in executing the king clear. The impeachment process that had been revived in the 1620s provided a way for members of Parliament to make judgments about royal officials. But there was no legal way that they could hold the king accountable, and as the 1626 case had shown, a king could protect his allies by simply dissolving Parliament.

The U.S. Constitution solved these problems in two ways. First, it lodged impeachment entirely in the legislative branch, which was defined as coequal to the executive (Article I, Section 2.5 and Section 3.6). Second, it expressly made the president subject to impeachment (Article II, Section 4).

It is always useful to examine historical precedents. Sometimes, though, what is different is just as important as what is the same. By ensuring an independent legislature and making the president subject to impeachment, the U.S. Constitution solved the “Charles I problem.” When Rep. Adam Schiff, D-Calif., one of the House impeachment managers in the 21st century, says that the purpose of the Trump trial is to determine that the president “should not become a king, accountable to no one, answerable to no one,” he is echoing the debates from the 17th century. The framers of the Constitution answered that question. Any argument from Trump’s legal team that the president is not accountable to Congress should be dismissed.

But it remains to be seen whether, although it solved the Charles I problem, today’s impeachment process has its own unforeseen gaps that enable leaders to escape accountability.

Susan Amussen is a historian of 16th- and 17th-century England and the Atlantic world who teaches at the University of California, Merced.

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