If the Republican view that impeachment is only appropriate for violations of criminal law prevails, we will have undermined a critical aspect of the separation of powers, put the President beyond the law, and firmly embraced post-truth politics.

Trump’s Republican Party always makes it so difficult to choose from so many contemptable and dangerous statements and actions.  It is tempting to address the Senate’s blatant disregard for their oath to be “fair and impartial” but I think their position on the Constitutional impeachment clause is ultimately even more disturbing and more difficult to correct.  In theory, senators like Lindsay Graham can be voted out of office (in practice, if you haven’t signed up to campaign for Jamie Harrison now is the time).  By contrast, if the Republican view that impeachment is only appropriate for violations of criminal law prevails, we will have undermined a critical aspect of the separation of powers, put the President beyond the law, and firmly embraced post-truth politics.

The President’s lawyers argue that none of the President’s acts (blocking military aid that Ukraine depends on to fight Russian aggression despite a law requiring its release, asking foreign governments to investigate his political rival, ordering executive branch employees not to comply with Congressional subpoenas) are impeachable because they are not “clear violations of criminal law.” And, they assert the idea of removing a president for abuse of his power is “a made-up theory. . . newly invented [and] ill-defined.”

The President’s lawyers argued that the idea of removing a President for abuse of power is “a made up theory. . . newly invented [and] ill-defined.”

This ignores almost everything we know about the history of the Constitution and the Framer’s intent.  Having agreed on treason and bribery as impeachable offenses, George Mason of Virginia observed that this would omit many “great and dangerous offenses.” While the delegates rejected “maladministration” as a standard they developed the phrase “high crimes and misdemeanors” to cover offenses other than treason and bribery. What kind of offenses did they have in mind?

Alexander Hamilton in the Federalist Papers: impeachment is for “the misconduct of public men…..the abuse or violation of some public trust.” High crimes and misdemeanors are “political in the sense that they concern injuries to society.”

Charles Pinckney

Charles Pinckney at the SC ratifying convention: The House could impeach “those who behave amiss or betray their public trust.”

George Mason at the Constitutional Convention. The “great and dangerous offenses” that should be impeachable include efforts to “subvert the Constitution.”

The impeachment provision, therefore, does not simply apply to violations of criminal law but to actions that violate the president’s special obligation uphold constitutional rights, democratic processes, and the public trust.

Moreover, the Framers were steeped in the English common law tradition where the word “high”  refers less to the seriousness of the offense and instead refers to punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.

And this, of course, points to the especially dangerous logic embraced by Trump Republicans and the U.S. Senate.  Not only do they dismiss constitutional principles as a “made up theory” but by narrowing the scope of impeachment to criminal offenses, they seek to insulate the President from being held accountable (the idea that the Framers would be content with popular elections as the only source of accountable is laughable). 

And so, we are asked to endorse the idea that impeachment requires a finding of a criminal violation by a President who has undermined at every turn the capacity of executive and legislative investigations that might establish that a crime has been committed. 

He has relentlessly attacked as disloyal federal investigators at the FBI and the Department of Justice, he has removed those pursuing evidence of criminal violations, including the head of the FBI and the Justice Department, appointed an Attorney General willing to investigate those who would investigate him, encouraged revealing the identity of a whistleblower with evidence of the Ukraine dealings, and ordered administration officials to refuse to comply with subpoenas from Congress. 

So, a crime must be demonstrated but investigations by the Justice Department, Congress, the media, independent watchdogs like the General Accounting Office are thwarted and derided as unpatriotic.

One of the most obvious signs that Constitutional democracy is crumbling is when leaders confuse their personal power with the nation itself and galvanize popular support. As Alexander Hamilton noted in his introduction to the Federalist Papers “of those men who have overturned the liberties of republics the greatest number have begun their career by paying obsequious court to the people; commencing demagogues and ending tyrants.”

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