In October, National Review’s Andrew McCarthy argued that impeachment is “a political process, not a legal one.” Last month, MSNBC’s Steve Kornacki said “impeachment is not a legal proceeding. It is a political one.”
He’s right that impeaching a president isn’t the same as a federal criminal trial. And it’s understandable why the perception that impeachment is merely political persists: The Constitution vests decision-making in the impeachment process with politicians — granting the “sole Power of Impeachment” to members of the House of Representatives and the “sole Power to try all Impeachments” to members of the Senate.
Impeachment proceedings against Trump thus far have predictably played out along partisan lines, with Democrats and Republicans defending alternate realities. The past reluctance of House Speaker Nancy Pelosi (D-Calif.) to back impeachment — during special counsel Robert Mueller’s investigation — reflected concerns about how it would affect some members’ chances for reelection. Although their party is mostly united on impeachment now, there’s reportedly a small cadre of House Democrats who want to pursue censure as an alternative to impeachment — a reprimand, essentially — in the hope that it will play better with their constituents. The persistent theme that impeachment is all political makes it easier for Trump to accuse congressional Democrats of “trivializing” the process, as he did immediately Friday after the House Judiciary Committee approved articles of impeachment. It lends support to the narrative of Trump and congressional Republicans that the process is a “hoax” and a “sham,” cooked up to overturn the results of the last presidential election.
But while it’s true that politics are bound up in how impeachment plays out, it’s a myth that impeachment is just political. Rather, it’s the principal legal remedy that the Constitution expressly specifies to hold presidents accountable. And our Constitution, which expressly provides for the power of impeachment and removal, is not just a set of suggestions or guidelines. It is the supreme law of the land.
As I’ve argued before, with the president essentially claiming he has immunity from any criminal proceeding (or even from investigation while in office), he’s entitled to keep confidential any information he wishes, and he’s empowered to shut down the impeachment inquiry and order the entire executive branch not to cooperate with Congress, the impeachment process is the only constitutional remedy available to keep the president in check. The only way to ensure that the president is not above the law is not, as the president and congressional Republicans say, to wait for the next election (in which Democrats say he has invited foreign interference) but instead for the impeachment process to be allowed to work.
The legal character of the impeachment process is apparent when we distinguish its features from the more typical process of legislating. The principal standard for considering the validity of a federal law is determining whether it comports with existing laws and the Constitution. By contrast, with impeachment, the principal standard derives only from the Constitution, a determination whether the conduct of the president or another federal official has amounted to “treason, bribery, or other high crimes or misdemeanors.” While there is wide latitude in assessing the constitutionality and propriety of a new law, with impeachment, the question has been narrowed to a small class of offenses.
Members of Congress get to determine for themselves what they consider to be high crimes and misdemeanors, but it is a constitutional standard, and the standard constrains what members of the House should be considering as possible grounds for impeachment. This standard has long been understood to include abuses of power, seriously injuring the country and breaching the public trust.
In a purely political proceeding, there is no concern with rules of evidence and burdens of proof. In impeachment proceedings, however, each member is expected to consider what evidentiary standard they intend to follow. At the end of Senate impeachment trials, it is customary, though not requisite, for senators to produce statements articulating the standard that they followed. As a senator voting on articles of impeachment against President Bill Clinton, Joe Biden stated: “We have left it to the good judgment of each senator to decide whether or not they are convinced by the evidence presented to us.” At the end of Clinton’s trial, Sen. John Chafee (R-R.I.) concluded: “Absent the proof that I find necessary to justify the removal of a president, I will vote to acquit.” Another Republican, Sen. Arlen Specter of Pennsylvania, referenced Scottish law, which allowed for “three possible verdicts: guilty, not guilty, not proved.” He chose the latter.
The process doesn’t mirror that of a criminal trial, and senators choose for themselves whether the House managers, who prosecute the case on behalf of the House in the Senate, must prove their case based on the preponderance of the evidence (the standard in most civil proceedings), beyond a reasonable doubt (the standard in most criminal trials) or clear and convincing evidence (a cross between these two other burdens of proof). In the 1986 impeachment trial of then-federal judge Harry Claiborne, the Senate rejected his motion to require that he be judged on the more stringent “guilt beyond a reasonable doubt” standard.
In political proceedings, the only oath required from members of Congress is the one that they must take upon entering their office, namely, to support and defend the Constitution. In an impeachment trial, senators take a special oath or affirmation to render judgments on the merits, not on their political or personal preferences:
I solemnly swear (or affirm) that in all things appertaining to the trial of the impeachment of … now pending, I will do impartial justice according to the Constitution and laws: so help me God.
In a political proceeding, the House speaker presides in the House and the vice president in the Senate. In a presidential impeachment trial, the chief justice of the United States presides in the Senate, a reminder of the solemnity of the event.
Finally, impeachment is distinguished from normal political proceedings by the requirement that at least two-thirds of the Senate agrees to convict on articles of impeachment to remove a president from office for misconduct. Normally, majority rule is the order of the day, notwithstanding Senate filibuster rules, which are not constitutionally required. That two-thirds threshold has yet to be met for any president. Two presidents (Andrew Johnson and Clinton) have been impeached, one more (Richard Nixon) nearly faced impeachment, but none have been convicted and removed.
The upshot of all this, as the late Charles L. Black Jr. explained in his landmark guide, “Impeachment: A Handbook,” is that impeachment is a hybrid process, not purely political or legal but a combination of both. The two impeachment articles against Trump that the Judiciary Committee approved on Wednesday underscore this. The charges — abuse of power and obstruction of Congress — reflect exactly the kind of activity that motivated the Constitution’s framers to create the impeachment power, referring to abuses of power that a president or high-ranking official is uniquely capable of committing: “Shall the man who has practiced corruption,” George Mason asked at the Constitutional Convention, [and] by that means procured his appointment in the first instance, be suffered to escape punishment?” Members don’t just make up the offenses they regard as impeachable. They measure the alleged misconduct against the constitutional standard.
And that standard doesn’t limit high crimes and misdemeanors to violations of federal criminal law, another myth about the process. Thursday in the Judiciary Committee, Rep. Steve Chabot (R-Ohio) objected to the articles of impeachment against Trump by noting that “the biggest difference in the Clinton impeachment and this one is that President Clinton committed a crime, perjury. This president isn’t even accused of committing a crime.” But not all impeachable offenses are crimes, and not all crimes are impeachable. In assessing the context and gravity of any charge levied against the president, members of Congress must take a number of considerations into account. Politics is one, but the politics that the framers meant the impeachment process to account for was not one that turned on disagreements in a two-party system but politics writ large — consisting of judgments made about the limits of presidential power and ultimately the consequences for our body politic and system of government.
As the charges facing Trump progress — the full House is expected to impeach him next week — it bears remembering that this process has been with us since our founding for a reason. No, there has never been a federal statute that says it is illegal for the president of the United States to abuse his power. But there is a law that forbids it: our Constitution.
