In the Wall Street Journal, former prosecutor Jeffrey Scott Shapiro argues that President Trump is not guilty of incitement in a way that would stand up in court. Everything he has said about the election, Vice President Pence, etc., is therefore speech protected by the First Amendment, and he can’t be impeached for any of it. I’ll grant Shapiro’s first premise, since he is genuinely an expert on the matter and his case for it is plausible. The rest of the argument proceeds from an excessively legalistic view of what is in reality part of the Constitution’s system of political checks and balances.
It’s a view that — to stress a point I’ve made in this space before — differs from that of James Madison, to whom we owe the “high crimes and misdemeanors” language in the Constitution. Recall: George Mason wanted to expand the list of impeachable offenses from treason and bribery to include “maladministration.” Madison objected that the latter term was too broad, and Mason then substituted the phrase that prevailed. Nine months later, he insisted that the Constitution allowed Congress to impeach and remove a president who pardoned, or seemed likely to pardon, a confederate in misconduct.
In other words: A president could act wholly within the Constitution and the statutes — the pardon power is a notoriously expansive one — and Congress could still impeach and remove him for it. Its ability to use that authority was, Madison said, “one security” against such a presidential abuse.
Nothing Trump has said or done since the election (and nothing any president says or does) has to be a criminal offense that could be proven in court for Congress to be justified in impeaching him for it. If a majority of the House and two-thirds of the Senate conclude that the president has betrayed his oath of office, that’s enough.