What’s an Impeachable Offense? We Don’t Know and that is the Problem

 After the 57-43 Senate acquittal of Donald Trump on the impeachment charge of inciting insurrection

against the government we are constitutionally left with a question:   What is an impeachable offense so serious that it merits the conviction and possible removal of a president from office?  As a result of this last failed impeachment this tool of controlling and disciplining abuses of presidential power is effectively dead.

US constitutional framers inherited the impeachment process from England.  In the battles for supremacy between parliament and the monarchy, the former used impeachment as a check upon the crown’s ministers, using the tool to remove those who abused their powers.    Impeachment was not a tool to be used against the monarch–the only or ultimate tool was the Glorious Revolution of 1688 resulting in a vastly weakened monarchy which was compelled into signing the English Bill of Rights in 1689.

The US constitutional framers too were fearful of strong executive power. US independence from England was precipitated by perceived abuses of power by King George III. The 1776 Declaration of Independence, especially the second half, is a catalog of a bill of particulars against the King.  Reaction to strong monarchical power produced America’s first constitution with no independent president.  By 1787 this was seen as a problem, and the task of the framers was to constitutionally produce a president with neither too weak or too sufficient of powers.

While Alexander Hamilton in Federalist Papers numbers 70-74 celebrated a strong presidency, other constitutional framers such as Benjamin Franklin and James Madison worried about abuses of presidential power.  Franklin declared that because it would be difficult to get a criminal conviction let alone an indictment of a sitting president, another tool was needed to check him.  Madison and others worried that limiting checks on the president to criminal violations might miss broader abuses of power including mal-administration.  They thus settled on the British impeachment model as a tool or remedy.  They adopted the phrase “treason, bribery, and high crimes and misdemeanors” as grounds for impeachment.

Originally the impeachment process called for the House to impeach and the Supreme Court to try the charges.  But later on during the constitutional convention the trial was moved to the Senate.  But at no point did the Framers clarify critical questions such as what is a high crime and misdemeanor; what standard of proof is needed to indict or convict; could one impeach or convict after a president left office; and if and when could the Senate vote to bar the president from holding future office?  Neither the text of the Constitution nor the constitutional debates clarify these questions, and English historical precedent is equally murky. Additionally, keep in mind that at the time of convention, political parties were assumed to be bad and hoped not to exist, and the Senators were appointed by state legislators and presumed to be above politics.  As a result, House indictments and Senate trials and the concepts of checks and balances and separation of powers  would place the country before the party.

Over time so much has changed.  Parties flourished and dominated American politics, especially today, in ways the Framers feared.  Senators are elected and captured by partisan politics.  These two factors alone changed the impeachment process. American history shows that.  Moreover, presidential power has vastly expanded, raising fears of what Arthur Schlesinger, Jr.  once called the imperial presidency.

Five serious impeachment processes have been initiated against US presidents (Andrew Johnson 1867; Richard Nixon 1973; Bill Clinton 1998; Donald Trump 2019; Donald Trump 2021).  All five started as investigations by rival parties, although Nixon’s enjoyed bipartisan support in the House Judiciary Committee vote to recommend to the entire House impeachment.  Had Nixon not resigned, who knows the final result.

But in the four remaining impeachments, House indictments and Senate trial votes largely followed party lines.  The fact that Trump’s second Senate impeachment trial resulted in the most  bipartisan vote ever with seven of 50 Republicans voting to convict still is not much of a story to tell.  Moreover, there have been four trials and four acquittals.  It’s just not clear now what is a convictable offense.  

The impeachment process has been trivialized and rendered powerless.  Indictment for lying about a sexual affair (Clinton) was a mistake, bringing two impeachments against Trump when there was no chance of a guilty verdict did equally as much damage to the process.  If seeking to pressure a foreign official to investigate a US president’s political rival or inciting an attack on the US Capitol were not convictable offenses then what is?  Short term partisan politics, anger, or the false belief that a point had to be made have done longer term damage to checks on presidential power.  Talk to any smart prosecutor.  Do not bring charges against someone unless you have a reasonable belief that you are going to get a conviction.

Trump twice abused his presidential power and deserved punishment but impeachment was the wrong strategy. Trump lost the election, he faces possible post-presidency indictments, and public opinion declares what he did leading up to and including January 6, 2021 was wrong.  History would have rendered the judgement and precedent here.  This acquittal renders history less clear.  It sets the president for whether impeachment will ever be a tool to check presidents.  It leaves open the very problem Democrats wanted to address–how to check abuses of power of presidents leaving office.  This checking of presidential power was the problem US constitutional framers sought to address in 1787, and it is even less clear now what the solution is.