Last week, the House of Representatives’ Democratic impeachment managers concluded their opening arguments—21 hours of weary repetition over three days. Though Representative Adam Schiff, the lead impeachment manager, and his colleagues leveled troubling and embarrassing allegations about President Donald Trump’s foreign policy conduct, they failed to identify a valid basis to overturn his election.
The Senate impeachment trial, entering its second week, is focused on the House’s charge of “abuse of power.” Its second charge—“obstruction of Congress”—is, at best, a boot-strapping makeweight: impeaching a president for failing to cooperate with an impeachment inquiry. This proves especially weak when Trump’s alleged “obstruction” amounts to asserting privileges successfully invoked by previous presidents.
At least the abuse of power charge derives its force from an incident that raises legitimate concerns. In a phone call last July, Trump urged his Ukrainian counterpart, President Volodymyr Zelensky, to investigate the dealings of Joe Biden and his son, Hunter, concerning the Ukrainian energy company, Burisma, and alleged efforts to oust a Ukrainian prosecutor. The rough transcript of the phone call puts Trump in an unflattering light as he recklessly and hamhandedly deals with a foreign leader.
But Trump’s actions, perhaps troubling, are not an impeachable offense. Removing a president from office through any mechanism other than an election is a drastic action, and highly risky, given the predictable anger of millions of Americans who would feel disenfranchised. According to the Constitution, this remedy is available only upon the president’s conviction for “Treason, Bribery, or other high Crimes and Misdemeanors.” House managers failed to make the case that abuse of power—a vague charge—falls within the scope of “high Crimes and Misdemeanors.”
Evidence suggests that the Constitution’s framers believed that any offense deserving of impeachment would also violate established law. Article I, for example, provides that officials removed from office after an impeachment trial would also be liable to trial in the courts—a clarification that wouldn’t be necessary unless the impeachable conduct arises from breaking the law. Alexander Hamilton, in Federalist 65, explained that the Senate, rather than the Supreme Court, was the best venue for impeachment trials because, upon a successful conviction, it was likely that the removed official would then be subject to criminal trial in federal court “in the ordinary course of law.” It wouldn’t be proper, according to Hamilton, for the federal judiciary to preside over two trials of the same officer “for the same offense.”
An early test of the sort of vague charges at issue in the Trump case surfaced in the 1804 impeachment trial of Supreme Court Justice Samuel Chase, which arose from Jeffersonian opposition to the staunch Federalist. The House had voted to impeach Chase, essentially, for the “crime” of misapplying the law while sitting as a circuit court judge. Chase’s defense counsel, Luther Martin, a delegate at the Constitutional Convention, persuasively argued that impeachment must relate to acts “contrary to law.” In the end, six Jeffersonian Republicans crossed the aisle to acquit Chase.
Even if—as some scholars maintain—an impeachable offense need not be a criminal act, it must be sufficiently well-defined to allow the Senate to determine guilt or innocence in good faith. And the offense should be so unambiguously dangerous to the republic that a president would have known, at the time, that he was committing an impeachable act. Under the House standard, how will future presidents know whether a particular action will be judged an impeachable abuse of power in hindsight?
Given the potential for political manipulation, the Framers sought to avoid a “vague and fluid” definition of impeachable offenses, as law professor—and frequent Trump critic—Jonathan Turley explained in his testimony before the House Judiciary Committee. At the Constitutional Convention of 1787, an early version of the impeachment clause included “maladministration” as an impeachable offense. “So vague a term,” said James Madison, “will be equivalent to a tenure during pleasure of the Senate.” The insertion of “other high Crimes and Misdemeanors” was meant to provide the precision lacking in “maladministration.”
In the Trump impeachment, the House managers argue that abuse of power is an impeachable offense, largely on the strength of broad statements made by the Framers, such as Hamilton’s observation that impeachment arises from “those offenses which proceed from . . . the abuse or violation of some public trust.” But here Hamilton is clearly saying that the various “offenses” that may give rise to impeachment fall into a broader category of “abuse . . . of some public trust.” The House willfully misreads Hamilton to suggest that the broader category of “abuse” is itself an impeachable offense.
Consider the contrary view: “high Crimes and Misdemeanors” encompasses any offense that Congress can invent on the spot. That would fly in the face of the due-process protections built into our founding charter. In every other context, the Constitution forbids Congress from enacting “bills of attainder,” that is, legislative punishments tailored to a particular person. It also forbids the enactment of retroactive—or “ex post facto”—criminal laws. Under the abuse-of-power standard, however, Congress could shoehorn almost any otherwise lawful conduct into an impeachment charge, and then apply it retroactively to a president, judge, or other officer of the United States who lacks political support.
It’s possible that facts regarding Trump’s dealings with Ukraine may yet emerge that would allow the House plausibly to identify a specific impeachable offense. But if “abuse of power” becomes a catchall substitute for “high Crimes and Misdemeanors,” we can look to a future in which impeachment will hang over every president’s head—like a parliamentary no-confidence vote—whenever the opposition controls one or both chambers of Congress. Madison’s fearful image of a commander in chief who serves at the pleasure of the Senate would become a reality.
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