Guidance on the Meaning of an Impeachable Offense

The Constitution’s definition of impeachable offenses is unsatisfactory.  The whole of it is:  “Treason, Bribery, or other high Crimes and Misdemeanors”.  Two words are specific; the rest is vague.  There are, however, numerous clues spread about in the Constitution, in the Constitutional Convention and State ratification debates.  The Founders did not want a president having to serve at the pleasure of the Congress.  This means differences with Congress on policy or procedure do not create impeachable offenses.  If the division between the President and Congress is so terrible, Congress can write a new law. 

The Constitutionally defined structure of the federal government provides additional insights. The federal branches — legislative, executive and judicial – are each equally sovereign.  I point out in the above paragraph, policy disputes are not impeachable.  However, the branches must work together to effect efficient government.  But notice; each is separately managed, and two of them separately accountable to the same electorate (“We the people”).  The Founders were specifically aware of the conflict produced by federalism.  They expected each branch to watch over the others and to challenge what might be unconstitutional.  

The subject of impeachment was introduced by George Mason and received negative results. Mason persisted and it became a majority opinion.  Then, the problem was lack of definition of impeachable offenses.  At the end of time, “Treason, Bribery or other high Crimes and Misdemeanors against the United States” gained acceptance.  At nearly the same time, all the approved drafts of all the separate Articles, Sections and Clauses were turned over to the Committee of Style. This 5-person committee was tasked with polishing the language and producing a coherent document. When the Convention reconvened to receive the Committee’s work the document was read aloud and unanimously consented for printing.  No one noticed omission of the words “against the United States” of Article II, Section 4.  An impeachable offense has to be against the United States.  

The Supreme Court has played a role by consistently declining to hear disputes of political contests.  As the Supreme Court has refused to put itself between Congress and the President, it has never led the House of Representatives to draw up impeachment articles.  Difference in politics, like difference in policy, is not an impeachable offense. Every Congress for 230 years has understood this, but now comes along one that doesn’t.  The difference is now the meaning of an impeachable offense is whatever the House of Representatives says it is. 

We can learn from two previous Impeachments of Presidents.  Andrew Johnson’s impeachment was the epitome of hard-ball politics.  John F. Kennedy in his Profiles in Couragechose to honor Edmund Ross for his courage casting the deciding vote acquitting Johnson.  Putting salt in the wounds, the law Johnson was impeached for violating was held unconstitutional.  William Clinton was accused of civil wrong-doing in his personal life.  Clinton’s acquittal is fair, based on holding an impeachable offense to be a wrong against the United States.  Clinton later settled out-of-court the civil claims for which the charges of perjury and obstruction were based.   

Some have said that President Trump acts as no other President has.  That view is ill founded.  Andrew Jackson (never impeached, but might have been in different times) was hot-tempered, and a persistent dualist.  Johnson’s dispute was political but he was hated by Republican radicals, which motivated Kennedy’s inclusion of Edmund Ross in Profiles in Courage.  It is well to read it.                                                                                        December 19, 2019