Constitution Sunday: Luther Martin, “The Genuine Information,” IX

Luther Martin: “The Genuine Information,” IX

Maryland Gazette (Baltimore), January 29, 1788

Impeachment of a president has become a feature within the Constitution that is colored by its uses throughout history: the impeachments of Andrew Johnson, Bill Clinton, and Donald Trump and the near-impeachment of Richard Nixon. While none of the impeachment proceedings resulted in conviction—and thus removal—of a president, those proceedings illustrated how Congress would deliberate over the solemn task that the Constitution assigned it. At the time the Constitution was facing ratification, it remained unclear how Congress would actually remove a president, and one author, writing under the name Luther Martin, opined in the Maryland Gazette that Congress would never remove a president—and thus far, Martin has been correct.

Martin first analyzed the House of Representatives’ unique role of voting to approve articles of impeachment while also recognizing that a president may choose those representatives to appoint to offices “of which he has the sole nomination.” Martin continued: “without his favour and approbation, they cannot obtain [those offices], [and] there is little reason to believe that a majority will ever concur in impeaching the president” particularly as that vote may serve to bar “themselves to the emoluments of government”—to create the sphere of influence that brings power and wealth to elected officials. Then, even if the House of Representatives voted to impeach, the Senate—which Martin titled “a privy council to the president”—still must vote to convict with a two-thirds majority. Presciently, Martin wrote, “[I]t is probable many of its leading and influential members may have advised or concurred in the very measures for which he may be impeached; the members of the [S]enate also are by the system, placed as unduly under the influence of, and dependent upon the president, as the members of the other branch, since they also are appointable to offices, and cannot obtain them but through the favour of the president.”

Additionally, Martin observed, a president facing impeachment may have appointed the presiding justice as that justice is the Chief Justice of the United States Supreme Court, and if the president had appointed that justice, that president would have confidence that he or she filled the position “with a person of whose voice and influence he shall consider himself secure.”

These set of circumstances suggested to Martin that impeachment would be too dull an instrument to deter a president from behavior that potentially warranted removal: “vested with the powers which the system gives him and with the influence attendant upon those powers, to him it would be but of little consequence whether he was impeached or convicted, since he will be able to set both at defiance.” While there may be debate as to whether Martin’s reasoning was correct, his conclusion remains true over 230 years later. Most remarkable, however, is Martin’s observation that a president in the late 1780s would have such extraordinary influence: at that time, the federal government—and the presidency—was modest in size and power; now, although the Senate may not be fairly called a “privy council to the president,” a president’s influence on Congress’ two chambers must be astronomically higher than the earliest days of the Republic—likely reducing the probability of removal and increasing the likelihood of presidential misconduct.

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