• Daniel Ethan Finneran

The Strange Impeachment Of Judge John Pickering

Throughout the course of his single term in office, a vertiginous four years out of which—though not yet fully regained of our balance—we’ve all more or less emerged, there was thought to be no crime too sordid, no barbarity too base, nor an infraction too foul, of which Mr. Trump couldn’t be found guilty.

You’ll recall, the terrible, unforgivable misdeeds of which he was so gravely accused were endless: Formally, he was alleged to have obstructed Congress, to have abused his Executive power, and to have incited an insurrection by which, as our television screens have made a determined point to remind us, our fragile democracy was acutely imperiled. These, in total, were the three articles of the two impeachment trials to which he was subjected, and away from which, rather nimbly, he twice stepped acquitted, if not wholly unrebuked.

Informally, Mr. Trump was charged with a great many more things.

He was said furtively to have profited from distant emoluments and shameless self-dealing, the types of cloudy deals through which a public’s lambent curiosity can never hope to penetrate. He was said to have prioritized the advice of those upon whom no Senatorial confirmation need be bestowed, but those with whom he had a consanguineous or personal relationship, merely. He was said to have acted with racial hatred and xenophobic bias toward those who were different in appearance from himself, calling nations upon which prosperity has yet to smile “s***hole countries”, and refusing entrance to our shores those acolytes of the Islamic faith.

Occasionally, Mr. Trump would act in such a way that both his severest critic and most intimate ally would be briefly united in the shared act of scratching their respective heads. The former attributed these moments to Mr. Trump’s rank lunacy; the former, to his charming eccentricity. This strange phenomenon would occur, time and again, after the retired President underwent some new paroxysm of anger, issued a wild and whimsical threat, or sent the weekly, extraordinary tweet by which all those around him, regardless of their bias, were both startled and utterly perplexed.

It was at these moments that, sotto voce, suspicions of the president’s cognitive state began to swirl. At worst, his critics floated amongst themselves the idea that his mind had entered into that irremediable stage of infirmity and degeneration, that intellectual fate to which all thinkers, be they great or modest, keen or obtuse, must eventually succumb. At best, his defenders, attributed it to his unpredictable personality and his wonted narcissism, two winning traits of which they’d grown to be quite fond.

Still, between both camps, the applicability of the twenty-fifth Amendment—fixed to our Constitution in 1967—became an increasingly live topic of conversation. Might it be mobilized by the esteemed Mike Pence, the sole conservative counter-weight by which an often-unmoored White House was regularly ballasted and gently guided? For him to have done so, he (and a majority of the people in the Executive branch in which he worked) would have had to deem the President mentally unfit to discharge his office. The Congress, with the vote of a super-majority, would then have to agree, and only then might the president be prematurely stripped of his popular honorific, and forcibly banished from that most famous of American homes in which he had the temporary pleasure to reside.

Happily, the twenty-fifth Amendment was never invoked. What’s clear is that those by whom it might’ve been activated thought it either inexpedient or inappropriate for the moment at hand. Perhaps they thought it both. I can’t say, though, that I didn’t harbor somewhere deep within me a small desire, a flickering but imperceptible hope, for a defense of insanity to be used by Mr. Trump’s counsel in his recent impeachment trial.

How exciting, if not convincing, a defense might this have been? After all, an insane man, being dispossessed of his faculty to reason (indeed, that strange and distinct quality—unshared by so many lower beasts—on which his very humanity hinges) is widely considered immune to prosecutorial zeal. Any man deemed, by the close inspection of proper medical authorities and psychiatric shrinks, to be detached from the fragile tethers of his reason, and alienated from the calm sobriety of his mind, is thought to be beyond the reach of legal reproach, and moral castigation.

If I’m not misled by the feebleness of my memory, on which, if I’m to be honest, the rapidity of the news cycle is having a stupefying and deleterious impact, Mr. Trump was declared evil, narcissistic, and, most importantly, insane. Over and again this claim was repeated, so I—innocent of legal acumen—thought it a potentially fruitful defense to be used at his impeachment trial.

Sadly, the history of the use of “insanity” as a legal defense in an impeachment proceeding is a discouraging one. It was used, albeit many years ago, when our Republic was still young.

In the tempestuous year of 1803, while Napoleon was growing, Pitt was impressing, and the yeoman Jefferson was coming to recognize his strength, a New Hampshire district judge by the name of John Pickering was impeached. It should be said, though, that he wears not the distinction of having been the first American public official impeached; that sad honorific applies to a certain William Blount, a Tennessee senator whose machinations with the British government justified Congress’ unprecedented reproach.

Owing to habits of intoxication and other causes, as the venerable historian and descendant of a great name, Henry Adams said in his voluminous work, Judge Pickering “had become a scandal to the bench, and was unfit to perform his duties”. Lady Justice, as we know, should be rather blind than bibulous, unseeing than besotted. John Pickering, yielding to so ageless a vice, to which men, no matter the height of their achievement, inevitably succumb, confused her solemn priorities. He tilted her scale too far in favor of drink, and lost hold of all balance and meaning.

At the instigation of President Jefferson, in whose eyes the John Pickering was nothing short of a rogue Federalist and a national embarrassment, the Judge was impeached by the House, and, with promptitude, his case was delivered to the Senate. With the House managers present and ready to inaugurate the trial, Judge Pickering’s name was thrice called, but a response was unforthcoming. The halls of the Capitol building were searched, but the accused remained unseen. Where on earth might he have been?

Such an unusual event had little precedence in so high and distinguished a court. In its experience, when the demand for a name was issued, it was, with celerity, fulfilled.

Finally, the judge’s adult son, Jacob Pickering, appeared before the court and, in the absence of a better defense, was equipped with some explanation of his father’s odd behavior. Young Jacob contended, in the words of Adams, that “when the alleged crimes were committed, and two years before as well as ever since, the judge was wholly deranged, incapable of transacting any kind of business which required the exercise of reason, and therefore incapable of corruption of judgment, no subject of impeachment, and amenable to no tribunal for his actions”.

Could our esteemed Senate, so august and refined a body, be wholly insensitive to such an honest and moving explanation? Could its cold severity and Rhadamanthine posture not be warmed and bent by the heartfelt pleading of a faithful son? Could it not be persuaded that insanity was a legitimate consideration, an ailment from which the Judge obviously suffered, for which he ought not to be punished?

The answers, dear reader, to the foregoing questions are yes, no, and no.

“The managers”, in the words of Adams, “were obliged to maintain that insanity was no bar to impeachment”. This, granted, was a deviation from all legal norms, but it was declared by our Congress to be necessary and exigent. Such an extraordinary conclusion revealed a potential shortcoming of which our Constitution might be found guilty. While that foundational document toward which every American’s heart inclines made “judges’ tenure of office dependent on their good behavior, it provided no other means than that of impeachment for their removal”.

This, of course, wasn’t the arraignment in England, that distant maternal land from which, in countless other ways, we’d taken so many salutary and helpful cues. There, by the joint action of the Parliamentary and the Regal bodies, those respective branches on which the Legislature and the Executive sat, a judicial servant could be painlessly removed. Both parties would simply have to agree to the measure, and they’d share in the responsibility for its use.

Humbly, we must admit this to be a better, more balanced approach to the impeachment and removal of such public officials as judges—a peculiar class to whom, in our own country, no tenure of service is fixed, and no misdeed explicitly closed. One can’t help but wonder why it wasn’t sooner adopted here, given our visceral enjoyment and uninterrupted defense of the concept of checks and balances, that luminous theory by which we’re guided, as though a northern star.

In a word, the people must be protected from the “misbehavior of their judicial servants”, even if that misbehavior was motivated not by the malignity of forethought, or the cruel designs of personal intrigue, but by the insanity of an afflicted brain. The only instrument available to us for the achievement this end, regardless of how blunt, is impeachment. Lacking any sharper tool, it must, as needs arise, be energetically used.

Alas, Judge Pickering was convicted in the Senate. By a vote of nineteen to seven, he was declared “guilty as charged”. Thereafter, with a second vote, resulting in an even larger margin, his removal from office was complete. He was, at the end of this unusual proceeding, the first man in American history to have been endued with such ignominy and stripped of his public office.

I briefly held onto the hope that the trial of Judge Pickering in 1803 would be repeated in the trial of Mr. Trump in 2021. I might’ve done well, before indulging such thoughts, to defer to the wisdom of Henry Adams, by whom it was conclusively declared that “Pickering’s trial was never considered sound precedent…that an insane man could be guilty of a crime, and could be punished on ex parte evidence, without a hearing, with not even an attorney to act in his behalf…seemed such a perversion of justice that the precedent fell dead on the spot”.

I read this in agreement, but can’t help but ask: are we really so concerned with precedent these days?

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