It’s a political remedy, not a legal one, so timing is up to Congress based on its assessment of the threat to national security and stability.
Regardless of what one thinks of the House push to impeach Defense Secretary Pete Hegseth, there is a powerful lesson here for those willing to see it — underscoring what I contended in Faithless Execution is the central fact about impeachment in the American constitutional order: It is a political remedy, not a legal one.
On Monday, eight articles of impeachment were proposed by Representative Thomas Massie (R., Ky.), a virulent Trump and Hegseth critic. The articles could be voted on as early as today (it will more likely be tomorrow). A Senate trial could begin (but probably won’t) immediately afterwards.
Some argue that this is a roughshod ride over due process. But that is the process that is due under the circumstances. This is not a criminal justice proceeding. Hegseth is not presumed innocent. He is not facing a threat of imprisonment or fine. Underway, instead, is an inquiry, committed by the Constitution to the unilateral discretion of the bodies that answer most directly to Americans, into whether Hegseth has engaged in conduct that renders him unfit for his office of high public trust.
The somewhat elusive standard is “high crimes and misdemeanors.” It refers, not to crimes and misdemeanors as we know them in the federal penal code, but to significant maladministration, which could reflect incompetence as well as malevolence. The concept is more redolent of military justice than civilian law — in particular, conduct seriously unbecoming of an officer.
A simple way of looking at it is the synopsis offered by the late Gerald Ford when he was House minority leader, in the years before he ironically became president due to impeachment proceedings that led to Richard Nixon’s resignation. “An impeachable offence,” said Ford, “is whatever a majority of the House of Representatives considers it to be at a given moment in history.” (Ford was then leading a failed attempt to impeach Supreme Court Justice William O. Douglas.)
A better way to look at is that, because there is an infinite variety of potentially impeachable conduct, and because the exigencies and security threats caused by such conduct cannot be predicted but could be existential, the Framers essentially left it to the representatives of the people whose lives were affected to determine (a) what kind of abuses of power warranted impeachment, and (b) what degree of investigation and trial procedure were necessary to determine the outcome.
In saying that, I am not using “essentially” as a weasel word. While “high crimes and misdemeanors” is a loose standard that gives Congress broad discretion, the Framers also included treason and bribery, more definite offenses, as grounds for impeachment. Still, even with those offenses — neither of which is at issue in Hegseth’s case — it is up to Congress to decide whether to proceed. It’s a political decision, not a legal one.
It is important to remember that, unlike in a judicial trial where the rights of the accused are paramount, the signal issue in impeachment is national security and stability. The rights of the accused are a secondary consideration because at issue is not his life, liberty, or property; the question is whether he is fit for public office, a privilege, not a right. The accused is not entitled to a proceeding of great length and exactitude; if the threat to the nation appears to be dire, Congress has the power to act with lightning speed.
In a criminal trial in the justice system, fact-finding is always mandatory, no matter how overwhelming the evidence appears to be, because it is the prosecution’s burden in such a legal case to prove guilt beyond a reasonable doubt. There is no such burden on Congress in impeachment cases. When high crimes and misdemeanors are under consideration, it will often be the case that the material facts are not in dispute. To take an obvious example in the propose Hegseth articles of impeachment, the Trump administration did not seek congressional authorization for the uses of force at issue in the Hegseth impeachment — that’s a fact, there’s no need to hold a hearing to establish it. When the dispositive facts are indisputable, and when the situation is dire enough in Congress’s collective view, impeachment can happen very rapidly. It typically doesn’t, but it can.
The House could decide to refer the Hegseth impeachment articles to a committee for further investigation, but it could also decide that the germane facts are well known, no additional investigation is necessary, and the full body can just proceed to a vote on the eight allegations (or some subset of them). If articles of impeachment are approved, it would be up to Speaker Mike Johnson (R., La.), an ally of President Trump, to decide whether and when to refer to articles to the Senate. If the articles are referred, the Senate has similarly boundless discretion regarding next steps: It could hold an immediate trial and suspend all other business; it could refer the matter to a committee for more investigation; it could convene a trial but permit motions to dismiss that would end the matter without a vote on conviction and removal — the possibilities are virtually endless because the Senate makes its own rules and can change them at any time.
After the Capitol riot on January 6, 2021, Congress went back to work that night to ratify Joe Biden’s victory in the 2020 election. But then the House adjourned for several days rather than immediately entertain articles of impeachment against President Trump. The “incitement of insurrection” article was not proposed until January 11, and was not voted on until January 13. Meantime, rather than get right back to work while the country was in crisis, the Senate adjourned until January 15, at which point Majority Leader Mitch McConnell fatefully decided that it was too late and pointless to have a fair impeachment trial with Trump’s term ending in just five days.
By the time the Senate finally took up the trial in February, many Republican senators had taken the position that the Constitution limited impeachment to a president who was currently in office, not a former president. That theory enabled them to acquit Trump without grappling with the evidence against him. Due to the Constitution’s two-thirds’ supermajority requirement for conviction, Trump was acquitted despite the one-sided vote against him — 57 guilty to 43 not guilty. Hence, he was not disqualified from holding office in the future. At the time, most Republicans figured that his doing so was inconceivable.
On impeachment, Congress generally chooses to go slow. That doesn’t mean it can’t go fast. The decision to go either way can have profound consequences.