In an effort to assert greater oversight of the Company’s all-powerful officials and private army in India, Parliament in 1773 created the position of governor-general, a post that Warren Hastings would hold for more than a decade. For Burke and other critics of Hastings, this dual system of public and private government did little to restrain the worst impulses of Britain’s imperial presence in the subcontinent. The twenty-two articles by which Burke charged Hastings in the House of Commons in 1787 included everything from financial corruption and bribery to stealing the land of orphans and promoting the rapacious treatment of peasants across three of the Mughal Empire’s greatest provinces.
In the trial of President Trump, Burke’s prosecution of Hastings figured not as the powerful and expansive indictment of imperial rule that it was but rather in the narrow terms of originalist constitutional interpretation. The President’s trial memorandum cited the Hastings impeachment for the proposition that a president cannot be impeached until he has first been heard by the House of Representatives. (As I have told my students, this absurd rendering of the significance of the Hastings case earns an emphatic “F” on both historical and legal grounds.). A more contentious dispute goes to the implications of the Hastings affairs for the framers’ understanding of the meaning of “high crimes and misdemeanors.” Alan Dershowitz, who along with Ken Starr was one of two deeply ironic members of the President’s legal team, argued that the framers meant this term to encompass only conduct that can be charged under existing criminal law. Because abuse of power and obstruction of Congress (according to Dershowitz) are not criminal offenses, it follows that the President cannot have been guilty of impeachable conduct.
The vast majority of scholars who have studied this matter disagree with Dershowitz, citing an exchange between George Mason and James Madison that occurred near the very end of the 1787 Constitutional Convention.[1] On September 8, according to Madison’s notes, Mason objected to a proposed version of the impeachment clause that would have applied only to “treason and bribery.” Mason, like Madison a delegate from Virginia, pointed out that “[t]reason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason.” Mason therefore proposed to remedy the narrowness of the clause by adding the offense of “maladministration.” After Madison replied that such an amendment would make the President removable at the pleasure of the Senate, Mason promptly withdrew his amendment and substituted the phrase “other high crimes and misdemeanors”—a modification that was approved by a vote of eight to three.