What the Constitution says about impeachment

In light of the recent White House controversies, it is inevitable that some people are starting to wonder whether, at any point, President Donald Trump might be impeachable. The best way to answer that question is to bracket controversies about any particular...

What the Constitution says about impeachment

In light of the recent White House controversies, it is inevitable that some people are starting to wonder whether, at any point, President Donald Trump might be impeachable. The best way to answer that question is to bracket controversies about any particular president and to ask: What, exactly, does the Constitution say about impeachment?

As we shall see, Nancy Pelosi, the House minority leader, was altogether wrong to proclaim that the president cannot be impeached unless he has broken the law. But Gerald Ford was even more wrong to say, in 1970 (when he was minority leader), that the House of Representatives can impeach the president on whatever grounds it likes.

To modern readers, the text of the Constitution strongly supports Pelosi. It says that a president may be removed only for "Treason, Bribery, or other high Crimes and Misdemeanors." The reference to treason and bribery, together with the word "other," suggests that the president must have violated the law — and that the violation must be quite egregious ("high Crimes").

But the debates at the Constitutional Convention offer a radically different perspective. An early draft of the founding document said that the president could be impeached for "malpractice, or neglect of duty." That draft provoked an extended debate, featuring three distinct positions.

An extreme view, attracting little support, was close to Ford's: The legislature should be able to remove the president at its pleasure. An equally extreme view, obtaining considerable support, was that the president should not be impeachable at all. The third position, which carried the day, was that the president should be impeachable, but only for a narrow category of egregious abuses.

Promoting that compromise in 1787, George Mason argued that the Constitution must allow a response if the president obtained office by corrupting his electors. That argument led other delegates to agree that impeachment might be permitted in situations of "corruption & some few other offences."

James Madison concurred, pointing to cases in which a president "might betray his trust to foreign powers." Gouverneur Morris added that the president "may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him."

Capturing the emerging consensus, a new draft of the impeachment clause would have permitted the president to be impeached for treason, bribery and corruption. With little additional debate, and for no obvious reason, this provision was abbreviated to "treason and bribery."

In the final debate, Mason complained that the provision had become too narrow to capture his earlier concerns, and urged that "maladministration" should be added, so as to include "attempts to subvert the Constitution" that would not count as treason or bribery. But Madison responded that the term "maladministration" was far too open-ended. Hence Mason withdrew "maladministration" and added the new, more precise phrase "other high crimes and misdemeanors against the State."

In the ratification debates, one of the most sustained explanations came from the highly respected (and later Supreme Court justice) James Iredell, speaking in the North Carolina ratifying convention: "I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other." By way of explanation, Iredell referred to a situation in which "the President has received a bribe ... from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty."

Alexander Hamilton similarly explained that the "subjects" of impeachment involve "the abuse of violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself."

Interestingly, the phrase "high Crimes and Misdemeanors," which was drawn from English law, did not produce much debate; apparently the founders regarded it as a term of art. Crucially, the term "misdemeanor" did not mean a distinct set of crimes (as opposed to felony); it referred instead to bad acts, in the form of exceptionally serious public misconduct.

A "high crime and misdemeanor" could certainly be a crime, but the term could also include acts or omissions that did not amount to a violation of the criminal law. If an official simply refused to do his job for six months, there is a good argument that he would be committing a "misdemeanor." In England, it was even said that serious misconduct, as in a case of committing the nation to an ignominious treaty, was a legitimate basis for impeachment.

The upshot is both simple and clarifying: The Constitution allows impeachment of the president for large-scale abuse of the authority of his office, and also for obtaining his office by corrupt means. Intense policy disagreements and partisan squabbles are never legitimate bases for impeachment. The same is true for purely private misconduct, even if it is genuinely terrible — and for making decisions that end up being struck down in court.

With respect to impeachment, the founders' remarkable achievement was to establish a stable framework with which to resolve one of the gravest decisions that any nation can ever face. Regardless of who the president is — today, tomorrow or decades hence — we do best to show fidelity to that achievement.

Bloomberg View

Cass Sunstein is a Bloomberg View columnist. He is the author of "The World According to Star Wars" and a co-author of "Nudge: Improving Decisions About Health, Wealth and Happiness."

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