Magazine | December 09, 2019, Issue

Impeachment Requires Consensus

Engraving depicting the 1868 impeachment trial of Andrew Johnson (Bettmann/Contributor/Getty Images)
The process is political, not legal

On impeachment, we are bipolar. In President Donald Trump’s case, Americans who hold diametrically opposite positions — passionate belief that he is unfit and must be removed, or intense conviction that he is just what America needs to tame the “deep state,” which has subjected him to a three-year “witch hunt” — can look at the same facts, draw antithetical conclusions, and claim total vindication.

How can that be?

It is because impeachment defies the story that we tell ourselves about who we are: a people dedicated, first and foremost, to the rule of law. To the contrary, we are a body politic. In our system of government, the questions of who is fit to wield power and of whether an official vested with power should be stripped of it are political, not legal. 

That may not be how we see it instinctively. But that is how it is.

The Constitution prescribes what seems like a straight legal standard for impeachment and removal of a president. What must be established is the commission of “Treason, Bribery, or other high Crimes and Misdemeanors.” 

The concept conveyed is maladministration, not of a quotidian kind, but rather a high-order betrayal of the nation or treachery in carrying out the president’s core fiduciary duties. 

Treason, the only federal offense defined by the Constitution, is an American’s belligerence against our country, by either levying war or abetting a wartime enemy. Bribery is an ancient, well-known offense, cited by the Framers on the same rationale as treason: fear that the president, in particular, could be bought by a foreign power.

The concept of high crimes and misdemeanors is less fixed, but its meaning is readily knowable nonetheless. To begin with the Constitution’s text, there is that word “other”: High crimes and misdemeanors are “other” offenses that are as egregious as treason and bribery. 

There is, moreover, Alexander Hamilton’s explication of the concept’s meaning at the time of the Constitution’s adoption. Hamilton drew on both the experience of colonial America and a contemporary example from British common law: the impeachment of Warren Hastings, governor-general of Bengal, led in Parliament by Edmund Burke. In Federalist No. 65, Hamilton explains that impeachable offenses “proceed from the misconduct of public men” (back then, it was always men). They are profound wrongs “of a nature which may with peculiar propriety be denominated political.” That is, they are not necessarily penal crimes prosecutable in a court of law. They relate, instead, “to injuries done immediately to the society itself,” involving “the abuse or violation of some public trust.”

So, while the Constitution prescribes a legal standard for impeachable offenses, impeachment is explicitly political. Politics not only controls the impeachment process; it is the essential nature of impeachment. It is no more, but no less, than the stripping of the political authority conferred on the president by Article II. It has only political consequences, not legal ones. That is, an impeached official may be removed from power and denied the right to hold public office in the future. There is, however, no legal consequence involved: The impeached official may still be indicted for any penal crimes underlying the impeachable offenses; by contrast, if impeachment were itself a legal prosecution, the Fifth Amendment’s double-jeopardy proscription would bar any subsequent prosecution in a court of law.

Bear in mind, too, the historical context. At the time the Constitution was adopted, there was no federal penal code as we know it today, much less a Justice Department and an FBI teeming with federal prosecutors and investigators. There was no notion that potential grounds for impeachment would be scrutinized by special counsels and grand juries, or that an impeached president would be treated as the equivalent of an accused and entitled to something like a fair trial before an impartial jury, with all the due-process protections mandated by the Sixth Amendment. 

Impeachment and removal were, instead, assigned to the political branches of government. The power to impeach — i.e., to formally allege articles of impeachment — was given exclusively to the House. There is no judicial oversight; no court may instruct the people’s representatives on what qualifies as an impeachable offense or how to conduct the process of alleging one. 

The Framers gave some thought to vesting the Supreme Court — or some similarly high-ranking judicial body drawn from state courts — with the power to try impeachments. Yet the idea was quickly dismissed, again because of impeachment’s political nature. 

As Hamilton explains in Federalist No. 65, those making the fraught decision of whether to oust an official from public office should “never be tied down by such strict rules, either in the delineation of the offense by the prosecutor, or in the construction of it by judges, as in the common cases serve to limit the discretion of courts.” The Senate, to be composed of distinguished Americans whose six-year terms rendered them less vulnerable to the whims of popular sentiment than House members (who face voters every two years), was deemed the best forum for impeachment trials. Senators would be better suited to exercise the “awful discretion” of deciding whether “to doom to honor or to infamy” presidents and other high officials accused of disqualifying misconduct. The Senate was preferable to a judicial court also because it would bring numerous perspectives to a decision that, in its momentousness, must not be committed to “the trust” of “a small number of persons.” 

The difficulty of successfully impeaching a president is related to this imperative: There must be a broad consensus of politically accountable officials that the misconduct is outrageous enough to warrant removal.

Today, we take the nation’s survival for granted. The Framers knew that if the fledgling nation was to endure, it needed a new governing structure, the Constitution, because the Articles of Confederation left it too vulnerable. The presidency was necessary because, unlike a legislature or committee, it could marshal the full power of the nation with dispatch in the face of threats. But to confer such awesome powers was also to confer the power for a rogue president to destroy the republic. Impeachment, then, as Madison put it, was an “indispensible” check. Nevertheless, the Framers also knew that the survival of liberty hinged on the effective separation of authorities, such that no branch accumulated too much power. They worried that impeachment could undermine that equilibrium, subjecting the president to too much control by Congress, with its inevitable rival factions. 

Hamilton thought that requiring a numerous body to make the removal decision was necessary but insufficient. The seriousness of truly impeachable offenses would “agitate the passions of the whole community,” and Hamilton warned that this would naturally devolve into partisanship. Hostility or friendliness toward the accused would “connect itself with the pre-existing factions,” which would proceed to “enlist all their animosities, partialities, influence, and interest on one side or the other” of the controversy. Hence, the danger: that the matter would be decided based not on “real demonstrations of innocence or guilt” but on “the comparative strength” of rival partisans.

To discourage impeachment from being invoked for trifling acts of maladministration or out of partisanship, the Framers made removal extraordinarily difficult. Two-thirds of senators must vote to convict. In a self-determining republic, the electoral process should decide who the president is; indeed, delegates to the convention in Philadelphia gave fleeting thought to dispensing with an impeachment remedy entirely and allowing elections alone to decide whether a president should be maintained in office. This notion was abandoned owing to the need to ensure that a traitorous president could be removed before doing mortal damage. But the sentiment remained that, except in cases of such high-level malfeasance, it was for the people, not a legislative process, to remove the chief executive.

The Constitution’s impeachment formula, then, ensures that no president will be ousted from office unless his misconduct is so blatantly condemnable and disqualifying that a public consensus for removal forms — one so strong that it drives a supermajority of senators to convict, regardless of their partisan or ideological ties.

The result is that a president can engage in multiple acts of misconduct that may meet Hamilton’s somewhat elastic definition of high crimes and misdemeanors; but the decision to remove is a political one, and unless the misconduct spurs a consensus that the president is unfit, he will not be removed and should not be impeached. 

There is no requirement that proof of an arguably impeachable offense trigger impeachment by the House or removal by the Senate. Nor does the Constitution’s directive that the chief justice of the Supreme Court preside over an impeachment trial in the Senate change the political nature of the proceedings. The chief justice’s role is largely ornamental. Constitutionally, the vice president is the Senate’s presiding officer, but it would undermine the legitimacy of the proceeding to have the vice president oversee an impeachment of the president (or, indeed, of himself). So the chief justice fills that role. The Senate, however, remains in sole control of the process, deciding whether to hold a trial, which articles of impeachment to consider, and what rules of evidence and procedure to apply.

With this framework in place, the divide over the impeachment inquiry against President Trump is easy to understand.

House Democrats allege that the president exploited his foreign-relations power to pressure Ukraine’s government to conduct (or at least announce) a corruption investigation of a potential 2020 Democratic opponent, former vice president Joe Biden, largely based on the lavish compensation paid to Biden’s son Hunter by a corrupt energy company while Biden was point-man for Obama-administration Ukraine policy. Despite the palpable conflict of interest, the vice president, during a visit to Ukraine, demanded that then-president Petro Poroshenko either fire a prosecutor who was investigating the energy company or forfeit $1 billion in financial aid. As Biden himself later recounted, in a 2018 panel discussion at an event for Foreign Affairs: “I said, ‘I’m leaving in six hours. If the prosecutor’s not fired, you’re not getting the money.’ Well, son of bitch, he got fired.” (Democrats contend that the prosecutor was corrupt and that Biden was carrying out administration policy, not protecting his son.) 

President Trump also wanted the assistance of the newly elected Ukrainian president, Volodymyr Zelensky, in getting to the bottom of Ukraine’s role in the Obama administration’s 2016 investigation of the Trump campaign. Potential abuses of power in that investigation are currently under investigation by the Justice Department. Trump is alleged to have made Ukraine’s investigative help on the Bidens and on 2016 the price tag — the quid pro quo — for the release of nearly $400 million in congressionally authorized military aid that Kyiv needed to defend itself against Russian aggression, and for a White House visit sought by Zelensky. Ultimately, though, the defense aid was transmitted, Trump met with Zelensky (albeit not at the White House), and Ukraine was not required to investigate the Bidens.

Most Democrats look at this transaction and discern a blatant impeachable offense: bribery. They also see executive abuse that amounts to high crimes and misdemeanors: the leveraging of presidential power for partisan political advantage (something that, ironically, Democrats were indifferent to, and Trump regarded as a Watergate-level offense, when the issue was the Obama administration’s investigation of the Trump campaign). 

Most Republicans look at the same Ukraine negotiations and see much ado about nothing. Few of them would agree with the president’s insistence that his July 25, 2019, conversation with Zelensky was “perfect.” But they maintain that Ukraine got the defense funding and, for the most part, did not even know its transfer was in doubt. The president did not force Ukraine to investigate the Bidens to get the funds; even if he had done so, the statute authorizing the funding requires the executive branch to ensure that Kyiv is rooting out corruption. 

To the extent that Trump also wanted Ukraine’s assistance in the DOJ probe of the origins of the 2016 Trump–Russia investigation, such requests are routine and consistent with the Treaty with Ukraine on Mutual Legal Assistance that has been in place for two decades. The fact that such investigations might have helped Trump politically is beside the point. Trump defenders note that incumbent presidents seeking reelection routinely use foreign policy to their advantage.

That is, Democrats see impeachment as a strictly legal matter: They think they can show bribery because, under federal statutory law, a completed bribe is not necessary for the crime to have occurred; a corrupt demand suffices for conviction. The Constitution says that bribery triggers impeachment. Q.E.D.

No, Republicans counter, impeachment is political. The bribery the Framers contemplated was not technical transgression of a federal penal statute (there was none at the time); it was a president’s traitorous sale of the office, which is not close to what was contemplated here, much less what happened. Further, even if the bribery statute did apply to impeachment, corrupt intent could not be proved, because the president is duty-bound to encourage anti-corruption efforts by foreign governments that receive U.S. taxpayer dollars. 

Only Democratic Trump opponents are inflating the Ukraine kerfuffle into an impeachable offense. In ordinary times, it would be grist for condemnatory oversight hearings, and it would make for a perfectly sound political argument that the president was not worthy of reelection. It is being framed as an impeachable wrong only by partisans who decided that Donald Trump was unfit before he ever darkened the Oval Office doorstep, and who have spent three years groping for a misconduct hook on which to hang their predetermination that Trump should never have been elected. 

That is exactly the factional abuse of impeachment power the Framers rejected and undertook to prevent by requiring broad-based political consensus. On the exhaustively analyzed facts of Trump-administration dealings with Ukraine, there is no such consensus — and there never will be.

This article appears as “‘To Doom to Honor or Infamy’” in the December 9, 2019, print edition of National Review.

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