The Constitution’s impeachment provisions are among the few that we would rather never be used.
President Donald Trump is the 20th public official, and only the third president, to be impeached by the House of Representatives.
Because the result of House impeachment, followed by conviction in a Senate trial, removes the president from office, however, it’s important to understand what conduct warrants such a significant interference in our election system.
When America’s Founders wrote the Constitution, they thought it necessary to provide for the possible removal of a president for serious misconduct, but had to find the right words to describe that misconduct.
Words like “maladministration” were too broad, “treason and bribery” too narrow. So they borrowed a phrase from English impeachment practice and came up with what the Constitution says today: “Treason, Bribery, or other high Crimes and Misdemeanors.”
That phrase “other high Crimes and Misdemeanors” may still be a bit hazy to our 21st-century ears. What is most obvious, however, is that Congress cannot undo the last election anytime it wants by impeaching and removing the president for anything it wants.
This is a critical issue. The House has impeached Trump for what it calls “abuse of power” and “obstruction of Congress” and the Senate trial of that impeachment is now underway.
Did the House choose a legitimate reason to impeach the president? How should the Senate evaluate the House’s impeachment and what decision should it make?
On Jan. 22, a group of 21 state attorneys general released a 14-page letter offering their analysis of these issues. They looked not only at whether the facts supported the House impeachment, but also at the theory behind the impeachment.
While the facts relate to this specific impeachment, the theory can be used in the future for other impeachments.
These attorneys general conclude that the first impeachment article, alleging “abuse of power,” really boils down to the claim that Trump took otherwise legal actions for a “corrupt purpose” or with a “corrupt motive.”
In other words, his interaction with the government of Ukraine was not, by itself, improper at all. What transformed his actions into an impeachable offense was the supposed purpose of coercing Ukraine to interfere in the upcoming presidential election.
The attorneys general warn that impeaching a president not for objectively improper actions but for his motive behind those actions “encourages impeachment whenever the president exercises his constitutional authority in a way that offends the opposing political party.”
This analysis also examines the motive behind the second impeachment article, which accuses Trump of “obstruction of Congress.” Here, the attorneys general explain that the separation of government powers into three branches means that each branch will guard its own power and prerogatives against demands by the others.
When, for example, the president claims what is often called “executive privilege” to resist the demands of congressional committees, he is taking exactly the steps that America’s Founders anticipated.
So when the Trump administration refused to comply with subpoenas from House committees seeking witnesses and documents, the proper course would be for the House to enforce its subpoenas in court. The House did not do so.
In fact, the attorneys general note, when John Bolton and Charles Kupperman asked a federal judge whether they must comply with subpoenas from the House Intelligence Committee, Chairman Adam Schiff, D-Calif., actually withdrew the subpoenas altogether.
The upshot of the second impeachment article concludes this analysis, which is that House Democrats are trying to turn the normal interaction between the legislative and executive branches into an impeachable offense.
“President Trump has thus been charged,” the attorneys general write, “with a ‘high crime or misdemeanor’ for doing what all presidents and top advisors routinely do—invoking executive privilege when Congress seeks to unconstitutionally interfere with the president’s high-level executive communications.”
This analysis is particularly valuable because it goes beyond the narrative about Trump’s telephone call with Ukraine President Volodymyr Zelenskyy and places this impeachment effort in a broader context to assess the impact it might have far beyond the events unfolding today.
>>> Read the full letter: