In the Wall Street Journal, conservative lawyers David Rivkin and Elizabeth Price Foley put italics on their central argument against any effort to impeach President Trump: “The president cannot legitimately be impeached for lawfully exercising his constitutional power.” It’s a bold claim. Is there any reason to think it’s true?
Rivkin and Foley provide one argument for it: “The Founders considered allowing impeachment on the broader grounds of ‘maladministration,’ ‘neglect of duty’ and ‘mal-practice,’ but they rejected these reasons for fear of giving too much power to Congress.”
It is reasonable to infer from this fact that “high crimes and misdemeanors” were understood to refer to a narrower class of offenses than mere “maladministration,” etc. It is not reasonable to infer that they were understood to exclude all lawful exercises of a president’s constitutional power.
I’ll repeat the same point I made when Alan Dershowitz attempted this argument in the same space: James Madison, who spoke out against letting maladministration be a ground for impeachment, specifically said that impeachment was the constitutional protection against a president who pardoned a crime he had advised. The president has a very broad pardon power, indeed one that is in an important sense plenary. But Congress, on Madison’s understanding, had the authority to judge an exercise of that power to be an abuse warranting the removal of the president. Indeed, giving it that authority was part of the point of having an impeachment-and-removal power in the first place.
Maybe the impeachment power should be limited in the way Rivkin and Foley want, and maybe it shouldn’t. But the limitation they want isn’t in the relevant text of the Constitution or the understanding of Founders who talked about it.