What the Constitution Says About Impeachment

October 4, 2019 Updated: October 6, 2019

Commentary

Conscientious citizens know that the impeachment of a president—any president—is a sad occasion. It isn’t a time for the unseemly enthusiasm now displayed by many in politics and the media.

Some cynics claim that impeachment procedures are a free-for-all, determined by nothing but politics. That’s not true. The Constitution and governing precedent impose rules. Those rules govern both impeachment (accusation) by the House of Representatives and trial in the Senate. Because most Americans understand the seriousness of impeachment and trial, they will insist that the rules be followed, even if the courts don’t enforce them.

The Constitution’s framers modeled its impeachment-and-trial provisions on 18th-century English practice, which rested largely on cases dating back to the 1300s. Since the Constitution was adopted, Congress has created more precedents. The Constitution and the precedents define the law of impeachment.

Under impeachment law, the House of Representatives may not constitutionally impeach a president—and the Senate may not constitutionally remove him—merely because they think his policies are misguided or harmful. They may not impeach or remove him because they don’t like his rhetoric, or because he tweets too much. Or because he paid hush money to a woman while he was still a private citizen. Or because he fired someone they don’t think should have been fired. Or because (like every president for the first 185 years of the republic) he didn’t release his tax returns. Or because his party lost a certain number of seats in Congress.

Nor may they impeach or remove a president because he owns shares in businesses that, in the course of ordinary market transactions, sell to foreign governments. Or because he is “the worst president ever”—the lament of every incumbent’s opponents. Despite assertions by Rep. Al Green (D-Texas), they may not impeach or remove a president to stop him from being reelected.

We don’t have a parliamentary form of government, in which the legislature controls the executive. The president is independent of Congress. He’s elected for a fixed term and is responsible to the people directly. To protect the president’s independence, the Constitution narrows the grounds for impeachment to commission of (1) a felony (“Treason, Bribery, or other high Crimes”) or (2) “high … Misdemeanors.”

Some claim the phrase “high misdemeanors” means whatever Congress wants it to mean. They are wrong. If this were true, the Constitution’s framers wouldn’t have listed grounds for impeachment and would have let Congress choose whatever grounds it wished. If Congress could impeach and remove for any reason, the president would be a prime minister, dependent on the whims of the legislature.

Historical research shows that “high misdemeanor” means a breach of fiduciary duty—or as the Founders phrased it, a “breach of trust.”

Differences in legal terminology aside, a breach of fiduciary duty is much the same today as it was when the Constitution was adopted. Fiduciary duties are the legal obligations binding those who handle other people’s affairs: trustees, bankers, accountants, corporate executives, and so on. Breaches of fiduciary duty include failing to produce legally required reports, neglecting one’s job, or doing the job incompetently, disloyally, or dishonestly.

Some critics say President Donald Trump has breached his fiduciary duties. They claim he plays fast and loose with the truth, has lapses in competence, and, in his discussion with the Ukrainian president, tried to use his official influence to attack a political opponent. All this sounds bad.

Yet it’s also true that the level of conduct expected of politicians is significantly lower than that expected of private-sector fiduciaries. Politics is a notoriously dishonest and sloppy business, and successful politicians—even presidents—often say and do things that would send bankers or corporate executives to jail.

Fiduciary law tells us that when assessing an official’s conduct, we should consider how other people in similar positions comport themselves. Thus, when deciding whether a politician’s actions are impeachable, we must compare his conduct to that of other politicians. When weighing whether to impeach a sitting president, we consider how other presidents have acted.

It’s regrettable but true that many presidents have routinely played fast and loose with the truth, acted incompetently, and used their office to attack political opponents. We are more aware of the faults Trump’s opponents accuse him of simply because of differences in treatment by the dominant media and other opinion-molders.

In a different media environment, for example, John F. Kennedy’s conversion of the White House into a brothel, or Lyndon B. Johnson’s weaponizing of the FBI, or Barack Obama’s gross misstatements about the Affordable Care Act could have been the scandal of the century. Yet of all recent presidents, only Bill Clinton was impeached. And the Senate judged that even his alleged commission of a felony—perjury in a court proceeding—didn’t justify removal from office.

Yes, the standards of conduct for federal politicians are ridiculously low. But impeachment proceedings must follow due process. Changing the rules retroactively violates due process. Trump must be measured by the same standards that governed his predecessors.

The Constitution and impeachment precedent lay down rules to protect due process. Before the trial, senators must swear that they will “do impartial justice according to the Constitution and laws, so help me God.” No other Senate proceeding requires a special oath like this. Even if God doesn’t make an obviously biased senator immediately accountable, the American people can.

The trial is governed by standing Senate rules that ensure due process. Precedent mandates that prosecutors prove their charges by “clear and convincing evidence.” The Constitution says that to convict, two-thirds of senators present (not a majority) must agree.

The Founders anticipated that unscrupulous senators might try to pervert the trial of a president into a lynch mob or a political circus. So the Constitution requires that when the president is tried, the chief justice of the United States—not the vice president or any senator—presides.

In sum, the impeachment-and-removal process should not be a mere vent for political disagreements or partisan animosity. It is a sad and serious procedure, governed by rules of law central to our system of justice.

Rob Natelson is a widely published constitutional scholar and historian and the author of “The Original Constitution: What It Actually Said and Meant.” Formerly a tenured constitutional law professor, he is now senior fellow in Constitutional Jurisprudence at the Independence Institute in Denver.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.