Among the most controversial aspects of Thomas Jefferson's presidency was his role in the impeachment of Justice Samuel Chase. As the first and last attempt to remove a Supreme Court Justice for his or her political opinions, the Chase impeachment and acquittal is a key step in the development of the impeachment power, specifically in the ascendancy of a particular understanding of the grounds for impeachment. An aspect of this development is the common scholarly interpretation of the Chase acquittal, specifically, that the whole affair was one battle in a larger partisan war, with Jefferson being at the center of the conflict. But such interpretations have failed to take into account the very perplexing attitude exhibited by the chief executive to the entire process of impeachment. In fact, given Jefferson's hopes for the impeachment power, it is possible that Jefferson had misgivings about removing Chase. Surprisingly, no scholar has provided an account that integrates his actions with regard to Chase with his general belief or theory of constitutional government and the necessity of coordinate review and executive prerogative.Footnote ¹ This article attempts to do just this, and thereby affords another perspective on the third president that goes a long way toward explaining his reticence toward obtaining Chase's conviction in the Senate. At the same time, by presenting Jefferson's efforts to broaden the impeachment process by inviting the executive branch to take part, this article provides grounds for reconsidering the power of impeachment as it was originally conceived.

The Two Understandings of Impeachment under the Constitution

Before we turn to Chase, we should consider the constitutional context of the impeachment power. Even a quick reading of the Constitution reveals that the scope of impeachment is open to debate and perhaps partisan manipulation: although the meaning of treason and bribery is clear, “high crimes and misdemeanors” is not.Footnote ² As a result, there are two understandings of the impeachment power. The legal understanding insists that impeachment and removal be reserved for criminal offenses, that is, to offenses for which an official could be indicted in a criminal court, while the political understanding looks to impeachment as recourse against officers who have harmed the nation but have not broken a specific law.

As Jeffrey K. Tulis has written, each understanding can find support for its position in the text and history of the Constitution. As for the text, several passages in the Constitution liken impeachment to a legal process (for instance, the Senate acts like a jury), but others specify that the punishment is limited to removal from office, suggesting that the criminal punishment would be reserved for another body.Footnote ³ Neither is original intent a sure guide.Footnote ⁴ During the debates of the Federal Convention of 1787, the delegates clearly rejected “maladministration” as a standard for impeachment and chose instead “high crimes and misdemeanors” on the worry that the maladministration standard would allow Congress to remove the president for mere policy differences.Footnote ⁵ But in The Federalist Alexander Hamilton explicitly described the violations leading to impeachment as “political.”Footnote ⁶ More important, perhaps, studies have shown that many early Americans – including delegates to state ratifying conventions, North Carolina and Virginia in particular – assumed that “high crimes and misdemeanors” meant “maladministration.” Even James Madison, whose criticism of “maladministration” in the 1787 Convention forced the delegates to turn to “high crimes and misdemeanors,” supported the political understanding as a delegate to the Virginia ratifying convention and then used the term maladministration favorably in the first Congress when explaining that presidents who abused presidential removal powers could be impeached.Footnote ⁷

There are additional problems with each understanding. The obvious difficulty with the legal understanding is that it must ask members of Congress to make political judgments even as it pretends that those judgments are required by the law. When is an indictable act criminal enough to qualify as a high crime or misdemeanor? Must it include some criminal act undertaken in an official's public capacity, that is, must the crime also qualify as abuse of office? The virtue of the alternative political understanding, then, is that it provides a way to solve the incompleteness of the law when officials do harm but do not break a particular law – for instance, when a judge refuses to hold court or a president's addiction to painkillers renders him unfit for office. Conceived this way, impeachment is a remedy for what the normal legal process cannot accomplish because impeachable offenses can concern, as Joseph Story put it, “duties, which are easily understood by statesman” but “rarely known by judges.”Footnote ⁸ The problem, however, with the political understanding is that it seems to undermine separation of powers by making presidents and judges dependent upon the will of Congress. If impeachment were simply the result of ordinary political strength, we might expect that executive and judicial powers would be drawn into what Madison regarded as the legislative power's “impetuous vortex” and result in legislative tyranny.Footnote ⁹

To be sure, there have been attempts to find a middle way that combines the two understandings, particularly by broadening the legal understanding to include an otherwise noncriminal abuse of office that results in great injury to the nation, but, as important as this endeavor might be, it has been rendered almost impossible by practice.Footnote ¹⁰ This rout of the political understanding is unfortunate. As Tulis argues, it has enabled blame-avoiding members of Congress to criticize but not prevent the aggrandizement of modern executive power.Footnote ¹¹ Another problem is that the legal understanding is in the awkward position of being victorious but incomplete, in that nobody would deny that partisan politics is a primary concern in most impeachments.Footnote ¹² This is to say that the legal understanding can serve, and has served, as a formal cover for what are in fact political motivations. As a consequence, the moderate “abuse of office” standard has to seek the mantle of the legal understanding by publicly spurning the political one, or perhaps by using the legal standard as a “necessary” condition for impeachment. In short, the legal understanding has become so entrenched that abuse is likely to be couched in strictly legal terms even when the law insufficiently captures the highness of the crime committed by the executive. As Tulis shows, the examples of Andrew Johnson, Richard Nixon, and Bill Clinton confirm that the legal understanding of impeachment has not served the constitutional order well in resolving what were in fact political disagreements between Congress and the president.Footnote ¹³

The Impeachment of Justice Chase

An important step in the victory of the legal understanding was taken when Jefferson and fellow Republicans failed in their attempt to use the impeachment power to tame the political activity of Federalist judges. In 1803 and 1804, Republicans impeached and removed John Pickering, a Federalist federal judge who was insane and a drunk but had committed no crimes. Then, in what scholars have regarded as a warm-up for impeaching Chief Justice John Marshall, House Republicans impeached Supreme Court Justice Samuel Chase, on the grounds that he was too partisan in his courtroom conduct as circuit judge. The Senate considered eight articles of impeachment against Chase. No article accused Chase of committing a crime.

Because there was basic agreement about the facts stated in the articles, the trial turned on the meaning of those facts with regard to the requirements for impeachment. Chase's defense team, and Senate Federalists, pushed the legal approach and insisted that an impeachable offense was by definition an indictable offense. As they put it, an indictable offense was one that transgresses against a particular law, not against a political doctrine or even an alleged understanding of judicial propriety. Further, if Congress disapproved of how Chase conducted his courtroom, it could pass laws to codify its concerns. But because there was no law forbidding what Chase had done, and indeed there was some precedent for it, the impeachment was simply a partisan attempt to remove a judge for a difference of opinion. Because there is a difference between an opinion and a crime, Republicans would have to show that Chase meant to break the law.Footnote ¹⁴ Some Republicans attempted to meet the legal argument by appealing to what Peter Charles Hoffer and N.E.H. Hull have labeled a “dangerous tendency” standard. Under this understanding, even though it would be impossible to prove criminal intent, the consequences of Chase's unfair enforcement of the law were sufficient to prove criminality.Footnote ¹⁵ As John Randolph explained it, “We do not charge him with a general zeal in the discharge of his office, but with an indecent zeal, in particular cases, for laws of doubtful and suspicious aspect.”Footnote ¹⁶

But determining whether enforcement is proper requires not only an understanding of the law in question but also a functional claim about making that determination. Accordingly, several House Republicans argued that Congress represents the people and therefore must be given broad impeachment powers. Under this broader understanding, impeachment “may fairly be considered a kind of inquest into the conduct of the officer, merely as it regards his office.”Footnote ¹⁷ Taken to its extreme, as in the speeches of William Branch Giles, this functional argument pointed toward a theory in which impeachment was little more than a question of power: “You hold dangerous opinions, and if you suffer to carry them into effect you will work the destruction of the nation. We want your offices for the purpose of giving them to men who will fill them better.”Footnote ¹⁸ Unsurprisingly, Federalists responded with their own functional argument about the courts. Because Chase was a judge, and therefore expert in the law, it was especially crucial that Republicans be required to prove that Chase transgressed against a particular law. Otherwise, the consequences of removal would be disastrous in that it would render the judiciary – the keepers of the technical understanding of the law – subservient to the legislative branch. By making a crime of imprudence, impeachment and removal would prove that the Constitution was only what the majority said it was. According to Federalists, expanding impeachment beyond the letter of the law would render both impeachment and the law arbitrary.

The House impeachment managers were able to achieve a majority vote to remove in the Senate but not a two-thirds majority. Although 25 of the 34 members of the Senate were Republicans, nine Federalists and a block of six Republicans voted to acquit on every article. The most common explanation for the Republican defectors is that they were moderates and objected to the political understanding of impeachment.Footnote ¹⁹ Under this account, the Chase affair set the precedent for the legal understanding of the impeachment power, and the scruples of the defecting Republicans secured the judiciary by placing the impeachment power on the path of lawful moderation.Footnote ²⁰

Alternative accounts, however, call into question this traditional understanding of the Chase acquittal. One explanation is that the defecting, moderate Republicans were alienated by Randolph's shrill criticism of the Yazoo compromise, not Randolph's understanding of impeachment.Footnote ²¹ Another explanation, offered by Keith Whittington, is that the outcome was a rejection of the legal and political understandings, but the closeness of the vote suggested at least partial victory for Republicans in that they succeeded in their real objective, limiting future political activity of Federalist judges.Footnote ²² Finally, Bruce Ackerman has argued that the Chase impeachment was but one step in a “grim institutional dance” between a new plebiscitary presidency and judges committed to the previous constitutional order. For Ackerman, this dance emerged during the election of 1800, which had forced Republicans to construct the mandate theory of the presidency and Federalists to respond with the argument from the letter of the Constitution. By trying to push politics down paths most advantageous for themselves, the parties appealed to two Constitutions, one from 1787 and one from 1800. The clash of these two constitutions – one emphasizing the law and the other public opinion – set up the Chase impeachment.Footnote ²³ To summarize, in place of the straightforward plot that Republican senators rejected their party's attempt to politicize the impeachment power, we now have a plot rich with subtle contingencies pointing toward alternative, and contradictory, paths.

The new interpretations by Whittington and Ackerman correctly reveal the flaws of the traditional understanding of the Chase acquittal, which, like the legal understanding itself, fails to see the justice in the political understanding. It is true that Federalists discerned that the legal understanding would bring steadiness to what would otherwise be merely a contest of partisan power. If Congress were allowed to use impeachment to interpret the law, then Congress would be given the power to both create and execute the law, which is usually considered a characteristic of tyranny. But Republicans rightly noted that the indictable offense standard could lead to embarrassing, and even dangerous, results. The diversity of state laws could allow the Congress to decide, for instance, that a judge who had violated a blue law (or perhaps a slave law) had committed a high crime. More dangerous, the standard would fail to provide recourse against a president who vetoed every bill presented to him.Footnote ²⁴ More broadly, the legal understanding would require that senators become members of a jury in which they may decide questions of fact but not of law and thus dangerously offered judges a monopoly on the interpretation of the law.

Because of the challenge to the legal understanding of impeachment suggested by these new efforts to understand the Chase acquittal, and, more precisely, because of the dilemmas raised by the functional arguments of each understanding of impeachment, we would do well to consider the person who had the best opportunity to think through the consequences of these arguments before they were firmly settled by practice. As a unique combination of politician and political theorist, and as figurehead of the first change of power in the young republic, Jefferson was uniquely positioned to see and alter his constitutional order. To understand the Chase affair, and impeachment generally, it is time that we consider Jefferson's objectives in addition to those of Jefferson's party.

Jefferson's Role

Because Jefferson was so secretive, we do not know the extent of his involvement. From previous scholarship, we know that Jefferson the president was often involved behind the scenes in the removal of executive and judicial officers.Footnote ²⁵ We also know Jefferson initiated the Pickering impeachment: Jefferson's Secretary of the Treasury, Albert Gallatin, arranged for depositions with testimony about Pickering's behavior to be sent to Jefferson who then forwarded the documents to the House, and Jefferson rewarded the prosecutors and witnesses against Pickering with offices, including the New Hampshire district attorney, who was given Pickering's position ten days after Pickering's removal.Footnote ²⁶ And we know that Jefferson brought about the Chase Impeachment by calling Chase's “attack on the principles of our Constitution” to the attention of Joseph Nicholson, one of the House managers in the Pickering trial.Footnote ²⁷ We also know that Jefferson invited Burr, whom he had previously spurned, to the White House and gave jobs to Burr's friends and family, presumably because Burr was presiding over the trial of Chase.Footnote ²⁸ Finally, we know that Jefferson carefully recorded the Senate vote on each of the articles, not only counting the total votes for each article but also tabulating how many times each senator voted to remove.Footnote ²⁹ What scholars have not determined is why Jefferson was courting Burr and why he was so interested in the Senate votes.

One obvious possibility is that Jefferson wanted Chase to be removed, perhaps because of a principled commitment to making judges more responsible to the people. In letters written during his retirement, Jefferson objected to the tenure of good behavior for judges on the grounds that “independence of the will of the nation is a solecism, at least in a republican government.” In place of impeachment, which experience had rendered a “mere scarecrow” and a “bugbear,” Jefferson recommended that judges be given a six-year term with “a re-appointmentability by the president with the approbation of both houses.” Alternatively, the Constitution could be amended to make impeachment a more “practicable remedy”: England's removal by a “majority only of each house” was better than the Constitution's two-third's requirement for removal, because the latter allowed party passion, personal friendship, and “the sympathies of the human heart” to conspire to make judges secure for life. As Jefferson saw it, involving the president and Congress in a periodic assessment of judicial behavior would force judges to be under “some awe of the canvas of their conduct.” As he put it, judges were no more trustworthy than other men and therefore could not “be trusted for life, if secured against all liability to account.”Footnote ³⁰

Although these proposals to change the tenure of judges correspond to Jefferson's larger movement in retirement toward something like direct democracy, they are also difficult to extricate from Jefferson's partisanship.Footnote ³¹ Because the federal judiciary had become a refuge of opposition to the Revolution of 1800, and because the Marshall Court enhanced the power of the national government at the expense of the states, an alternative interpretation would be that Jefferson's later criticism of judicial tenure was more political than principled. There is some evidence for this account. In 1798, when the House impeached Republican Senator William Blount, Jefferson worried that the scope of the impeachment power was too broad. When Federalists argued that any person – including a private citizen – was impeachable and that an impeachment trial need not include a jury, Jefferson wrote Madison that the Federalist argument jeopardized the Eighth Amendment. He explained that the proceedings had convinced him that impeachment was the “most formidable weapon for the purposes of dominant faction that ever was contrived,” and he went so far as to conclude that British history indicated that “impeachment has been an engine more of passion than of justice.” Given the Federalist domination of the Senate, he doubted that “we could count on one-third in an emergency.”Footnote ³² During this period, Jefferson also left evidence that he ascribed to the legal understanding. To one Republican senator, Jefferson addressed the question “Whether an impeachment for a misdemeanor be a criminal prosecution?” by sending along “passages from Law authors showing that in Law-language the term crime is in common use applied to misdemeanors, & that impeachments, even when for misdemeanors only are criminal prosecutions.”Footnote ³³ Similarly, his 1801 Manual of Parliamentary Practice summarized British practice regarding impeachment and noted that the articles of impeachment serve “in place of an indictment” and would contain a “criminal charge against the supposed delinquent.”Footnote ³⁴ Perhaps Jefferson tried to narrow the impeachment power when his own party was in the minority but then tried to expand it when his party found majority status.

But even the account from party is inconclusive. Importantly, a common strand in several of the traditional and revisionist accounts of the Chase acquittal is that Jefferson actually did not wholly support the impeachment effort. A few scholars conclude that even though Jefferson initiated the impeachment proceedings he limited his involvement to observation and rooting for removal.Footnote ³⁵ Others hold Jefferson actually changed his mind and tried to prevent the removal of Chase: because Jefferson was then undecided about the merits and/or requirements of an independent judiciary, his own intra-party feud with John Randolph was larger than the impeachment, so Jefferson vindictively hoped that Randolph and his followers would fail to remove Chase.Footnote ³⁶ Partisanship complicates even as it clarifies.

Another problem with any explanation that reduces itself to partisan motivations is that Jefferson was more than a partisan. Knight and Epstein, for instance, conclude from Chase's acquittal that Jefferson wanted to preserve judicial review and therefore allowed the impeachment effort to fail.Footnote ³⁷ Although they intend by their account to show the usefulness of game theory to historical investigation, their conclusion suggests that Jefferson was motivated by a principle at least as much as his party was committed to partisan victory. Pushing aside for the moment the question of Jefferson's commitment to judicial review, it is important to remember that Jefferson had spent his entire career thinking about constitutionalism and the requirements of republican government. Throughout the 1780s and 1790s, Jefferson proposed plans or revisions for the Virginia Constitution, the Articles of Confederation, the U.S. Constitution, and the French Declaration of Rights. Long into his retirement, he suggested reforms of constitutions in other nations.Footnote ³⁸ Further, as his 1815 letter to W.H. Torrance suggests, there was considerable subtlety in his understanding of impeachment. Although this letter has been cited as evidence of Jefferson's opposition to judicial finality, it is underappreciated for what it reveals about Jefferson's understanding of the impeachment power.Footnote ³⁹ As we will see, his letter to Torrance suggests a connection between his understanding of impeachment and his doctrine of coordinate review.

Jefferson's Understanding of Impeachment

In his letter to Torrance, Jefferson took up impeachment to answer a different question arising from separation of powers. Torrance had written Jefferson regarding “a law of the State of Georgia which suspends judgments for a limited time” to ask “whether it may be valid under the inhibition of our constitution to pass laws impairing the obligations of contracts.” In response, Jefferson argued that legislatures are “less restrained than the Duke of Venice by the letter of the decree” and, therefore, must in some cases look beyond the terms of the contract and “adjudge to Shylock a reasonable equivalent”:

Jefferson's use of The Merchant of Venice was an obvious attempt to show the insufficiency of contracts when judged by nature, and to explain why the express terms of the Georgia contracts, like that of Shylock, were less than just. But the reference to the Duke reveals a critical difference between the law of Shakespeare's Venice and the U.S. republic in that the United States has no Duke to wield the last word. That is, if legislators are to look to justice in addition to the letter of the law, what are they to do when judges have already given Shylock his due?

To answer the question about Georgia, then, requires not only a higher law approach to judging but also a functional argument about “whether the judges are invested with exclusive authority to decide on the constitutionality of a law.” As Jefferson put it, the answer varied according to the kind of law. Laws pertaining to “questions of property, of character and of crime” belong “of course” to the judiciary, but the constitutionality of laws “prescribing executive action, and to be administered by that branch ultimately and without appeal” must be decided by the executive branch. Put in the terms of a rule, “that branch which is to act ultimately, and without appeal, on any law, is the rightful expositor of the validity of the law, uncontrolled by the opinions of the other co-ordinate authorities.” Jefferson here was elaborating his theory of coordinate review. Under this doctrine, often called departmentalism, each department of government may interpret the Constitution regarding questions within its own constitutional sphere. Jefferson believed that Marbury v. Madison (1803), for example, was wrong because the Constitution had entrusted decisions about appointments and removals to the president.Footnote ⁴⁰

To be sure, Jefferson acknowledged that departmental interpretation would lead to conflict. To Torrance, he wrote that his theory could produce “contradictory decisions” and even “inconvenience,” but he predicted that the “prudence of public functionaries” and “authority” of public opinion would produce “accommodation.” Elsewhere, he explained that he was confident that such conflict would be solved by the “change of persons” through future elections.Footnote ⁴¹ Nevertheless, the examples Jefferson chose to explain to Torrance the principle are worth closer inspection:

The first illustration is clear: Sir John Holt was a Chief Justice who seemed to simultaneously allow judicial review and parliamentary supremacy.Footnote ⁴² Likewise, Jefferson's example of the citizenship cases of Smith and Duane seems at first to illustrate Jefferson's principle. Whereas the citizenship of Duane was decided by judges in the context of a libel suit brought against Duane, Smith's was decided in the House in the context of a challenge over Smith's eligibility as a representative. Because the power to judge the qualifications of its own members is explicitly reserved to each house of Congress under the Constitution, the Constitution appears to envision different resolutions of similar questions. But the example is more complicated. Because the judicial decision that Duane was not a citizen was but one step in a larger legal battle between the Republican editor and Federalist judges, Jefferson's reference to Duane also suggests a broader understanding of coordinate review. As Jerry W. Knudson explains, Duane faced a “double-barreled prosecution” under the Alien and Sedition Acts because his citizenship was questionable and because he was the author of the rabidly partisan opposition newspaper, the Aurora. Because Jefferson allowed prosecution of Duane under the Sedition Acts to expire, the libel suit was another way for Federalists to bring Duane's citizenship under scrutiny by way of the Alien Act. Indeed, it was Duane's legal troubles, combined with that of Callender, that prompted Jefferson to compose a public explanation of his doctrine of coordinate review in an early version of his first annual message. To be sure, Jefferson ultimately did not pardon Duane's contempt charge, nor did he deliver the explanation of coordinate review in his message to Congress. The point here is that the Duane example illustrates not only a case when Congress and the courts reached different conclusions, but also of when a president refused to execute a law because he thought it unconstitutional.Footnote ⁴³ As we will see, what makes coordinate review so attractive to Jefferson is the place it leaves for executive discretion.

To further explain coordinate review, Jefferson compared it to another kind of review, legislative exclusivity. As he put it, some unnamed “men” of “judgment and information” believed the “legislature alone is the exclusive expounder of the sense of the constitution, in every part of it whatever.” Strangely, and for the only time in his vast writings, Jefferson went on to explicitly describe the political understanding of the impeachment power. As he put it, the supporters of the doctrine of legislative exclusivity “allege in its support, that this branch has authority to impeach and punish a member of either of the others acting contrary to its declaration of the sense of the constitution.” Importantly, Jefferson praised the doctrine for its “safety” and endorsed it as preferable to judicial review: “Between these two doctrines [legislative exclusivity and coordinate review], every one has a right to choose, and I know of no third meriting any respect.” His praise notwithstanding, Jefferson credited this idea to other men and noted that the doctrine of legislative exclusivity was distinct from coordinate review, the doctrine he believed to be “sound.” In light of the illustrations Jefferson chose to explain his principle, his association of legislative exclusivity and the political understanding of impeachment deserves more attention.

Although legislative exclusivity is an improvement over judicial finality in that it would allow political calculation through the electoral process to influence the law, it resembles its judicial rival in that it underestimates the centrality of action in executing the law. As Jefferson put it in an 1807 letter to the governor of Virginia, laws sometimes have to be improved by execution in that a just construction must sometimes be a “freer construction” improved by the “ingenuity” of the executive who brings action to the law and therefore must reconcile the law with nature.Footnote ⁴⁴ Because nature and the law require different rules, at least in cases “where no private right stands in the way,” justice would sometimes have to rise above the original intent of the legislator. This is to say that legislative exclusivity, like judicial finality, is deficient insofar as it forgets the place for executive interpretation. So too with impeachments. Like the flawed theories of interpretation, the legal and political understandings of impeachment fail to appreciate the particular character the executive brings to the law. This is to say that the legislative branch cannot be trusted with so dangerous a power and instead must be assisted by the executive, who, like judges, will be more aware of the difficulties of law enforcement. Seen as another aspect of coordinate review, impeachment would improve the interpretation of the law by bringing another perspective – or, to borrow the language of The Federalist, another will – to the law.

Given the question of Jefferson's partisanship, it is important to note that Jefferson's commitment to coordinate review is not easily reduced to his concerns about the Federalist judiciary. He had elaborated his alternative to judicial review before Marbury, that is, before it was clear that the judiciary would be a partisan opponent. In an undelivered draft of his First Annual message, Jefferson declared the Sedition Act a “nullity” on the basis of coordinate review. And, if David Mayer is correct, Jefferson had arrived at this theory by 1797, even before he became president and his party captured Congress.Footnote ⁴⁵

More important, Jefferson's letter to Torrance, with its implied rejection of legislative supremacy and of the political understanding of impeachment, corresponds with his earlier attempts at crafting a constitution for Virginia. In his 1776 constitution, he proposed that judges be “removable for misbehavior” by a court of appeals but that such misbehavior be defined by “crimes” “precisely defined by the Legislature” and that punishment be “previously prescribed.”Footnote ⁴⁶ Jefferson's concern for precision in the definition of crimes is noteworthy, for his fellow Virginians decided on a broader “maladministration” standard. But, in 1783, Jefferson – who had had his own brush with impeachment as governor of Virginia – proposed a new constitution because, as he explained, the legislative branch had obliterated separation of powers. Curiously, although Jefferson's stated concern was legislative tyranny, he qualified judicial tenure – judges would serve for “good behavior or the existence of their court” – and proposed a more open impeachment process: a “court of Impeachments” would be comprised of three members from each of the three departments of government, and “Before this court any one member of the three branches of government may impeach any member of the other two for any cause sufficient to remove him from his office.”Footnote ⁴⁷ Moreover, Jefferson changed the kind of punishment to accompany impeachment. In place of the 1776 language about “certain and determinate pains” available in previously defined laws, Jefferson in 1783 proposed that the “the only sentence they shall have authority to pass shall be that of deprivation and future incapacity of office.” The change confirms that even though he was concerned about a tyrannical legislative branch, Jefferson had by this time separated the impeachment process from the criminal: “The offenses cognisable by this court shall be cognisable by no other, and they shall be judges of fact as well as law.” Because one's capacity to continue in office would be a political matter, the court would not be allowed to inflict disproportionate punishment on those who had fallen out of favor with two of the three departments of government. To check the overbearing legislative branch, he proposed a coordinate theory of impeachments by inviting the executive power to take part.

Jefferson's transition to a more open impeachment process corresponds with his more well-known proposal in 1783 that a new constitutional convention be called whenever two-thirds of two of three departments asked for it.Footnote ⁴⁸ This innovation was meant to solve the problem of legislative domination in that the executive and judicial departments would be able to join forces, call a new constitutional convention, and find a remedy for the problem. Like the plan for frequent appeals to the public, Jefferson's plan for impeachments was an invitation for political conflict and a rejection of strictly legal resolutions of constitutional impropriety. Jefferson seemed to have meant to encourage impeachments by allowing each department to initiate and participate in the process. Knowing that at least one-third of the impeachment court would be receptive to its claims, each department would be more confident, and assertive, in bringing charges against another. Indeed, it was this political incentive that caught Madison's disapproving eye and prompted the remark quoted at the beginning of this paper. As Madison put it, “The 2 great desiderata in a Court of impeachments. are 1. impartiality. 2. respectability. the first in order to a right. the second in order to a satisfactory decision.” The problem with Jefferson's solution was that combining accuser and judge “seems not to square with reason.” Specifically, Madison objected to taking so much of the power away from the legislative branch: with the executive and judiciary together holding two-thirds of the powers to try, “too much might depend on a combination of these departments.” Accordingly, Madison recommended that two-thirds of the impeachment court be comprised of members from the Senate, with the other third drawn from the branch not bringing charges of impeachment. Under Madison's alternative, impeachment trials would be less political because the accuser would also not be judge.Footnote ⁴⁹

In light of this very public difference between Madison and Jefferson, Jefferson's letters in retirement confirm that the partisan war with the judiciary might have influenced Jefferson's views on judicial responsibility, but they also reveal that from 1783 onward Jefferson never wavered from wanting the executive's participation in the impeachment process. During the Pickering impeachment trial in 1804, if William Plumer's diary is to be trusted, Jefferson advocated an amendment giving the president the power to remove “on application from Congress.”Footnote ⁵⁰ Then, in 1807, when John Marshall orchestrated the acquittal of Aaron Burr on charges of treason, Jefferson said that he would “rejoice” in the injustice if it brought about “any useful amendment of the Constitution” regarding the tenure of federal judges.Footnote ⁵¹ In retirement, Jefferson continued his campaign against the judiciary by recommending that judges have fixed terms but be eligible for reappointment by the approval of president and both houses of Congress. Even during his 1798 efforts to confine the scope of impeachment, he explained (in the letter cited above as evidence of Jefferson's partisanship) that his object was to “lessen the dangers of the court of impeachment under its present form & to induce dispositions in all parties in favor of a better constituted court of impeachment.”Footnote ⁵² To summarize, Jefferson modified his 1803 position (impeachment on address) to the 1807 and 1820 presumption against lifetime tenure, but he retained the idea – dating back to the 1783 proposal for a board of impeachments – that the executive should be involved.

Seen as a part of a larger project regarding coordinate review, then, Jefferson's letter to Torrance both supports and corrects the accounts concluding that Jefferson had doubts about the removal of Chase. Because the letter to Torrance reveals that Jefferson associated legislative exclusivity with the political understanding of impeachment, it indicates Jefferson had reason to root against a guilty verdict. At the same time, however, the argument here casts doubt on those going as far as to conclude that Jefferson wanted to preserve judicial independence. For some of the Framers, as Robert Scigliano has argued, the design of the Constitution imagined “two executives,” the executive and the judiciary, with each responsible for an aspect of law enforcement.Footnote ⁵³ But more than sharing this function of government, the two executives would form an alliance against the legislative branch. It is possible that Jefferson constructed his theory of coordinate impeachments by continuing and transforming this logic of two executives.

Impeachment and Executive Power

Even if the letter to Torrance and the argument presented here reveal something about how Jefferson would improve the impeachment of judges, what does it say about the impeachment of executives? A possible answer is that Jefferson believed that the impeachment of executives would benefit by improving the body asked to act as judge in an impeachment trial. This is to say that Jefferson's coordinate theory of impeachment acknowledged that the public would have to be made competent to judge constitutional conflict, even as it presumed that appeals to the people would be better than technical debates in Congress and the courts.

The importance of the quality of public judgment can be better understood by considering one possible cause of impeachment, executive prerogative. Like his several assertions of coordinate review, Jefferson presented in private his understanding of an “extraconstitutional” executive prerogative.Footnote ⁵⁴ As I have argued elsewhere, Jefferson offered such explanations in order to defend an executive who had taken action, or was preparing to act, outside the law during times of great necessity or perhaps even great opportunity.Footnote ⁵⁵ The formula was the same: officers in “high trust” would sometimes have to act according to the purpose rather than the letter of the law, partly because, unlike judges, they would be called upon to act quickly. By acting outside the law, they risked themselves, but had to because they had been placed in a high trust. Part of that trust included the requirement that they explain their actions to the people rather than obscuring it with legal argumentation, and it is this requirement that distinguished extraconstitutional from constitutional prerogative. According to the latter understanding, it is safer to constitutionalize executive prerogative in order to bring executive discretion under the rule of law, but because the law must remain incomplete with regard to execution, the constitution must confer the power to go beyond it to the executive.

The tension between the two understandings of the constitutionality of prerogative bears similarity to that between the two understandings regarding impeachment. The constitutional understanding of prerogative and the legal understanding of impeachment are alike in that each looks to the law and away from the people during moments of necessity. In so doing, both offer clarity in the form of expert opinion to temper what would otherwise be the unchecked passions or interests of the majority. The extraconstitutional understanding of prerogative, like the political understanding of impeachment, sees the law and necessity as fundamentally irreconcilable and instead looks to congressional judgment and, finally, to the public for judgment as to whether an action accords with the public good. Further, because Jefferson's extraconstitutional understanding of prerogative included the requirement of an appeal to the people in place of constitutional argument, it would seem that his understanding would require a vigorous impeachment power. That is, because it directs the judgment of prerogative to the question of the public good and away from the law, it would seem that Jefferson's understanding of prerogative would fit best with political understanding of impeachment. Why, then, did he distance himself from that understanding in the letter to Torrance?

The question of public judgment of actions on behalf of the public good helps resolve this problem. Consider John Locke. In the Second Treatise, Locke undermined the argument for kingly authority by elaborating the doctrine of consent and connecting the right of resistance to self-preservation. Though Locke attempted to bring monarchy under the rule of the legislative branch, he conceded that the rule of law would have to be modified because “Things of this World are in so constant a Flux.” Specifically, because legislative bodies would not always be “in being,” the executive would have to sometimes resort to prerogative, which is the power to act in the silence of the law or sometimes against it for the public good. This is not to say that prerogative was the rightful prerogative of the executive, for the people would have to decide whether it had been used in their good. Here, Locke seemed to say that the people would have little problem judging whether prerogative had been used for their good, but, as Benjamin A. Kleinerman has argued, Locke also indicated he doubted that the people would notice unlawful executive acts “beyond that which immediately touches them.”Footnote ⁵⁶ To put it in the language of the Declaration of Independence, the problem is that “all Experience hath shewn that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves.”

As revealed in the Declaration, Jefferson also noticed that people have a hard time judging, but Jefferson's understanding of impeachment shows where he improved on Locke in two ways. First, if Kleinerman is correct, Locke suspected that executives would seek to maintain the appearance of the public good in order to make their actions less visible to the people, so Locke constructed the argument for an “original Constitution” to provide legislators and others in the opposition with the means to instruct the people concerning the executive's lawlessness. But Jefferson feared that executives and their agents could blur the use of prerogative by interpreting this constitution to correspond to their actions. Second, Jefferson also noticed that the defect in judgment could work in the other direction in that the people would use the wrong standard to judge prerogative. As he put it, the people will tend to judge prerogative on the basis of facts that were unknown to the executive when he acted, thus unfairly replacing motive with result. Hence Jefferson, whose activities as wartime governor had been the subject of a legislative inquiry, noted that the prerogative power was difficult because it was “embarrassing.”Footnote ⁵⁷ As a result, those called to high trust would be unwilling to undertake great objects on behalf of the public good. For the people to be able to want to judge, and judge correctly, the people would have to be simultaneously awakened and educated.

For Jefferson, then, the educative dilemma of prerogative is why the executive should be involved in the impeachment process. Jefferson recognized that impeachment was a “farce” precisely not only because, on the one hand, it would rarely be used but because, on the other, it grew out of legislative aspirations for finality in interpreting the law. If the legislature alone could impeach and remove an officer whenever it disagreed with the officer's activities, political judgment would simply become another kind of technical legalism: legislative modification could replace judicial hairsplitting, but it would be equally invisible to popular judgment. Executive participation, by contrast, would democratize the political understanding of impeachments. Because the executive brings with him an executive understanding of interpretation, not to mention sympathy for the embarrassing requirements of political life, he would bring impartiality to the process by softening the legislature's lawyerly attempts to preserve their own handiwork. Because the public would be more aware of the executive's own activities, executive participation would enliven and nationalize impeachment by publicizing it. Because of the executive's smallness in number, he would bring accountability to executive decision-making and thus render contingency compatible with consent.

By improving the public's ability to understand the kinds of questions that would be brought up by impeachment, executive participation would improve the impeachment of judges but also of executives. By pointing to the question of the public good, rather than to the meaning of the law, executive involvement would provide the people with a more practical, and more realistic, way to judge executive discretion. Because such extraconstitutional discretion need not be limited to instances of self-preservation, and could be expanded to include the public good, the people would be provided with a more flexible way to judge what would otherwise be beyond their competence and perhaps their interest. By elevating the people's understanding of motive, Jefferson's coordinate theory of impeachments would provide a more realistic understanding of “abuse of office.” By inviting and even demanding examination, instead of obscuring it with legalese, executive participation would humble the executive even as it provided a way for it to defend itself. By pricking the attention of the people, who too rarely rise up against tyrants, and by emboldening legislators, it would make impeachment more likely. By broadening impeachment and pointing the people to questions of the public good, executive participation would itself provide a check on executive prerogative.

The Chase “Precedent”

Even as it challenges the two understandings of impeachment under the Constitution, Jefferson's understanding of impeachment calls our attention to the way the question of the incompleteness of the law made its way into Chase's trial in the Senate. As Whittington has argued, Articles Three and Four – which received a majority of votes in the Senate and the most support in the House – show that the impeachment debate was about more than judicial independence. Specifically, these articles pointed to the fact that Chase had denied Callender's defense the opportunity to argue that the Sedition Act was unconstitutional. The point was not that judges should stay away from the political arena, but rather that Chase had prevented other political actors from entering the constitutional area.Footnote ⁵⁸ In the presumption that juries should be allowed to consider the constitutionality of the Sedition Act, Articles Three and Four were constructed to deny judges a political monopoly on constitutional interpretation. Accordingly, Chase's lawyers warned that dangerous radicalism lurked behind the Republican understanding of juries, because jurors – men of the “corn-fields,” “tobacco plantations,” and “the plough and hoe” – had “total ignorance of the law” and would be swayed by local rather than national interests.Footnote ⁵⁹ If jurors were allowed to consider the constitutionality of laws, then the Constitution would be consumed by the instability incident to republican government.

Predictably, House Republicans characterized Federalist arguments as elitist, but somewhat less predictably, also as naive. On the first, House managers argued that the Federalist attempt to find a technical definition of high crimes and misdemeanors grew out of their efforts to protect “a distinction between gentleman and simple-men.”Footnote ⁶⁰ But Republicans used this standard partisan argument to make a more subtle one: just as the distinctions between gentlemen and the simple are inevitably arbitrary, the foundation for judicial exclusivity is flimsy in that it rests on the false presumption that the law can be sufficient for every contingency of political life. For Joseph Nicholson (the House manager whose attention was called to Chase by Jefferson), the insistence that impeachment be for an indictable offense ignored the fact that no Congress could ever define in advance every act that would be indictable. Accordingly, the Federalist insistence on technical law was doomed to fail because “a code of laws never did and never can exist, in which all the human offenses are defined.”Footnote ⁶¹ Instead of wishing for perfect law, it was better to rely on the judgment of the people:

To Nicholson's assessment that the law can never be perfect, Caesar Rodney added that judges will participate in politics in order to be promoted by a sitting president, and John Randolph pointed out that juries will decide questions of law even if judges say they cannot, so to separate the “right” from the “power” was unrealistic.Footnote ⁶³ Impeachment need not be reserved for indictable offenses, indeed it could not, because no set of laws would be able to list in advance every offense that should be indictable, and because no jury would ever think otherwise.

This more surprising Republican argument about the imperfection in the law confirms and extends Whittington's argument that the conventional understanding of the Chase acquittal (that it preserved the independence of the judiciary) is inadequate. Alongside all the debates about impeachable offenses was a disagreement over who would be able to resolve the imperfections inherent in the Constitution, indeed in any constitution. By opening a path to the interpretation of laws by juries, Articles Three and Four challenged the doctrine of legislative exclusivity even as they denied judicial finality. Prompted by Jefferson, Nicholson and the House managers had forced Republican senators to consider the choice between constitutional and extraconstitutional solutions to the problem of the imperfection of the law.

More than shedding light on the Chase precedent, Jefferson's constitutional thought and action speaks to our constitutional practice. Today, there is a consensus that the impeachment process under the U.S. Constitution is unwieldy, riddled with uncertainty, and likely to precipitate a constitutional crisis.Footnote ⁶⁴ As we have seen, the source of this problem is the irresolvable difference between the political and the legal understandings of the scope of impeachment under the Constitution. In addition to the confusion arising from the text and history of the Constitution, the fundamental problem is that the two understandings are inextricably associated with their functional consequences. The legal understanding aims at judicial independence and perhaps judicial finality, while the political understanding suggests a place for legislative interpretation of the law and thus leans toward legislative supremacy. From Jefferson's perspective, we see that each understanding will be incomplete as long as it forgets the place for executive interpretation. To implement Jefferson's understanding, we might allow the president to initiate impeachment proceedings against members of the two other departments. Alternatively, and following the 1783 version of his proposal, we might create a board comprised of members from each department to try impeachments brought by the House or, to combine both possibilities, any of the other departments. Either alternative would inspirit the impeachment process with the executive's approach to law and politics.

But a more immediate reason to revisit Jefferson is that his understanding of impeachment challenges the more dominant, but unworkable, understanding in current political practice. Even if Jefferson's recommendations for executive participation are too radical to survive the amendment process, his expansive view of impeachment can assist those who wish to broaden our understanding, and our use, of the impeachment power.