President Donald Trump seems to be misunderstanding one of the key aspects of the limitations of the office he currently occupies.
On Monday, Trump sent out a tweet regarding the issue of impeachment. The process, he argued, requires him to have committed a criminal act in order to be removed from office.
“Only high crimes and misdemeanors can lead to impeachment. There were no crimes by me (No Collusion, No Obstruction), so you can’t impeach,” Trump wrote.
Only high crimes and misdemeanors can lead to impeachment. There were no crimes by me (No Collusion, No Obstruction), so you can’t impeach. It was the Democrats that committed the crimes, not your Republican President! Tables are finally turning on the Witch Hunt!
— Donald J. Trump (@realDonaldTrump) April 22, 2019
Is that really how it works? Not exactly.
The founders’ intent, and ambiguities in the Constitution
The founding fathers, in drafting certain aspects of the Constitution, weren’t exactly clear in what they meant all the time. This was somewhat purposeful: they understood that the document would have to become amenable to changing circumstances over time, and knew they couldn’t account for every single circumstance of Constitutional questioning that would arise. Some matters would be up for interpretation, and they counted on it being this way.
One such matter that wasn’t clearly defined but was argued over to some extent during the drafting of the Constitution was the issue of impeachment. The clause we know of today in the document — removal is dependent on “treason, bribery, or other high crimes and misdemeanors” committed by members of the executive branch, including the president — actually took a bit of time to hammer out among the founders themselves.
In fact, the phrase started out as “treason, bribery, and corruption” within one Constitutional committee charged with creating the terms for impeachment. A separate committee kept treason and bribery, but removed “corruption” from the conditions, understanding that the term was too general to be included.
The founders knew that reasonings beyond just treason and bribery would be desired in order for Congress to have a check on the president who could abuse their office. But a third option, adding “maladministration” to the list of impeachable offenses, was rejected as well — it, too, was seen as broad, and would allow Congress to remove a president too easily (what is maladministration, anyway? Are disagreements between the branches considered maladministration?).
Eventually, the founders settled on the idea of “high crimes and misdemeanors.” The phrase was not an unfamiliar one to them — in English common law, it had been included for centuries to justify the removal of officers of the British crown for myriad reasoning. It was basically understood to mean actions for which there may not be a statutory or expressly written law on the books that can be violated, but which nevertheless was recognized as being an abuse of power by the particular individual being charged.
Yes, a president can be charged with committing a criminal act in their impeachment proceedings. Doing so adds some legitimacy to their removal, as it’s evident that they broke a law of the land and therefore have breached the trust of the office they hold. But committing a literal “crime” is not required for impeachment proceedings to be carried out. A misuse of the office they hold, for the purpose of benefiting themselves and no other party, can be justification enough to warrant their ouster. It is a “high crime” — a crime that is “higher” than what’s found within the U.S. Code.
Previous opinions from Trump allies
This isn’t just the rantings of some liberal opinion writer, either: Republicans have held this view in the past, too, including some who have expressed their support of Trump in the present.
During the impeachment proceedings of former President Bill Clinton, Lindsey Graham, a Republican who is now one of the most adamant defenders of Donald Trump, said that a criminal action wasn’t necessary to remove the Democratic chief executive from office.
“[Y]ou don’t even have to be convicted of a crime to lose your job in this constitutional republic,” Graham said, according to reporting from Law & Crime. “If this body determines that your conduct as a public official is clearly out of bounds,” then removal was warranted, he explained. “Impeachment is not about punishment, impeachment is about cleansing the office.”
Tread lightly on impeachment — but not to the extent Trump argues for
To be sure, there is still a set of conditions that have to be met in order to justify impeaching the president. It shouldn’t be over simple matters either, like simply disliking the present occupier of the office or even having mistrust in them — rather, an egregious action has to have occurred in order to justify their removal.
What that means, however, is that Congress itself determines if actions are impeachable or not. That can produce dangerous outcomes and set up bad precedents, if taken lightly. Luckily, there are rules that require the legislative body to reach a high threshold in order to kick a president out of office — including attaining a majority in the House of Representatives and a supermajority (two-thirds) of the Senate to indict a president.
Trump is wrong to suggest that a president has to be charged with a crime in order to be impeached. The president, in fact, cannot be charged with a crime at all, according to certain legal theories, which would render the impeachment clause of the Constitution entirely moot if we go by Trump’s current standards.
Of course, we shouldn’t forget that these conditions Trump laid out on Monday weren’t always what he’s believed. Indeed, during the presidency of Barack Obama, Trump had a different take on why we should remove a commander-in-chief from office, citing what he believed to be at the time the “incompetence” of Obama’s leadership as justification enough to warrant his being impeached.
Are you allowed to impeach a president for gross incompetence?
— Donald J. Trump (@realDonaldTrump) June 4, 2014
His own words are now being used against him by several users of social media who have a progressive bent. Yet incompetence shouldn’t necessarily be the standard, either. A higher bar should be considered for any president’s removal — just not the high bar that Trump is presently promoting, now that he’s the one who is facing calls for impeachment.
Featured image credit: Palácio do Planalto/Flickr (CC BY 2.0)