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.

Can a Sitting US President Be Indicted for a Crime? Why the Framers Intent is Irrelevant to Answering this Question

Was it the intent of the American constitutional framers to allow a sitting president to be indicted for a crime, or was impeachment the only recourse to remedy a chief executive who broke the law?  In light of the Michael Cohen plea and how it may have implicated Donald Trump, or even possible charges that might be filed against the president as a result of special prosecutor Robert Muller’s investigation,  these questions are getting significant scrutiny.  However, Framers’ intent is largely irrelevant to answering them, and originalism fails to provide an adequate solution.
Ascertaining the constitutional framers’ intent when seeking to determine what is an impeachable offense and whether it is the only remedy for presidential criminal misbehavior  is a near futile exercise, from a historical, epistemological,  and linguistic approach.  What would Trump have to do to constitute an impeachable offense?   Article II, section four lists three possibilities–treason, bribery, and high crimes and misdemeanors.
What would Trump have to do to constitute an impeachable offense?   Article II, section four lists three possibilities.  Treason is the first, and the Constitution defines that to be engaging war against the United States or giving our enemies Aid and Comfort.  Treason is a high bar to meet, requiring something where it involves military action or issues that directly address national security.  It is possible that his campaign’s or staff’s collusion with the Russian government is treason but we do not know that yet.  That is why there was the FBI investigation and therefore efforts to impede it might be efforts to obstruct justice.
The second possibility is bribery.  Bribery would be accepting payments in return for the performance or conveyance of government services or favors.  Given Trump’s extensive business holdings and refusal to divest himself of them, there is a possibility that the conflicts of interest that he personally has could rise to a constitutional level problem that would merit an impeachable offense.  For example, allegations of Russian business connections and how they might be impacting  Trump’s foreign policy decisions might be a form of bribery.
Finally, there is the phrase high crimes and misdemeanors.  In adopting this phrase the constitutional framers employed language that had existed in England since 1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties.  Mal-administration comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted high crimes and misdemeanors in its place.  Mal-administration is not simple policy disagreement or even sloppy administration, it needs to rise to perhaps a constitutional level, perhaps even including something approaching gross negligence and dereliction of duty.
An alternative meaning for the phrase was offered in 1970 when the House of Representatives tried to impeach Supreme Court Justice William Douglas.  The Congressman Gerald Ford said an impeachable offense was “whatever a majority of the House of Representatives considers it to be at a given moment in history.”  In truth, Ford is correct–impeachment is a matter of political judgment where Congress ultimately decides the fitness of a person to serve in office, such as the president.  That is precisely the point here.
What is an impeachable offense from a historical and linguistic point of view?  Did the constitutional framers simply intend to carry over the meaning of high crimes and misdemeanors from England so that it would apply the same here?  There is no historical answer to this question.  Any archival documents are indeterminate to what they framers meant, let alone determining who the framers are.  Were they all the individuals who attended the 1787 Constitutional convention?  Only the drafters and debates of Article II?  Or more broadly, did it include all those in the states who voted on ratification of the Constitution? 
Conversely, as linguistics and language philosophers such as Ludwig Wittgenstein contend, words get their meaning from their use and context experts in textual hermeneutics such as Hans Georg Gadamer tell us that we can only understand the past through the lens of our current experiences.  We cannot reconstruct history and tell it like it was, as Leopold von Ranke thought–but must view history, including ascertaining the meaning of historical acts and texts–in light of our experiences and perspective.  Epistemologically, it is simply impossible to “tell it like it was or recreate the minds of the Framers.”  No credible historian these days is a realist thinking we can capture the past as it was.   It is similar to the problem philosophically that David Hume and Immanuel Kant hit upon–it is impossible to directly perceive or apprehend the world as it is–we cannot prove realism. Finally, philosopher Leon Goldstein and I have argued that words have meanings that are historically contingent and change  over time because their referants change over time.  What someone referred to as the British Parliament in 1775 is different than what one refers to today because the institution of the parliament is different today compared to then.
How all this applies to Trump is that whatever the Framers might have thought about whether sitting presidents could be charged with crimes, only impeached, or both, is impossible to resolve.  Pure originalism, whatever that is, is impossible.  That is why nearly from the beginning of its history the US Supreme Court has adopted functionalism as a dominant mode for interpreting the  Constitution.  In famous cases such as Marbury v. Madison and McCulloch v. Maryland Chief Justice John Marshall looked to structure of the US Constitution and sought a functional answer to what the document meant.  We need to understand the Constitution as a blueprint for the national government.  This blueprint outlines the core values of what our democracy is supposed to represent and then how our institutions perform to fulfill these values.
At its core the US Constitution stands for a small cluster of values that included limited government, rule of law, separation of powers, and checks and balances.   There is no inherent government authority–the Constitution defines the limits of federal authority American democracy is not a monarchy.  Our Declaration of Independence, especially the second half, is a bill of particulars against the abuses of kings.  The US president is not a king.  The King perhaps can do no wrong, but presidents can, and they are not above the law.  We should always think of federal power as subject to limits–no one person or branch has absolute authority. 
Even if one could ascertain the original intent of the constitutional framers regarding what is an impeachable offense and whether a president could be charged with a crime, functionally it makes no sense to ask this question today.  Impeachment is a political judgment and in an era of partisan polarization, relying upon it as the sole remedy for criminal behavior for a president makes no sense.  Remember, the framers did not write a constitution anticipating or intending political parties to exist, especially of the type that have emerged today.  Impeachment simply is not a viable  remedy to check allegations of presidential criminal behavior.
Forty-four years ago in a different political climate it might have made sense to declare a President Nixon an unindicted co-conspirator for his actions in Watergate and its cover up.  But President Ford’s pardon of Nixon de facto if not de jure suggested he doubted that acts of the president could not be criminal.  A federal court agreed.  Today, the political climate is very different, suggesting that impeachment as an option is not there and that functionally, if one is to treat seriously the idea that presidents have to be held accountable for their actions, they must be subject to criminal prosecution.