As the impeachment trial of Donald Trump finally gets rolling, this might be a good time to review some of the legalities of impeachment. It turns out that the gold standard for books about impeachment is Charles Black’s Impeachment (A Handbook). Black’s book was originally written during the years of the Nixon administration. Professor Black has since passed away, but his little volume gets updated now and then, as it did for the Clinton impeachment, and now again for the Trump impeachment (this time around by Phillip Bobbitt).
In any case, the book identifies seven fallacies about impeachment that might be useful to reproduce at this point in time:
- Impeachment is a political question, not a legal one.
- The grounds for impeachment are whatever the House of Representatives determines them to be by voting a Bill of Impeachment and sending it to the Senate.
- A criminal act by the president is an essential predicate to impeachment.
- Any serious criminal act by the president is grounds for impeachment.
- Congress cannot remove a president via impeachment for exercising or declining to exercise authorities that are constitutionally committed to the president’s discretion.
- Acts authorized by Congress cannot provide a predicate for the impeachment of the president who carries out these acts.
- What constitutes a “high Crime or Misdemeanor” does not vary with the office of the person being impeached.
So these seven statements are false. They are fallacies. It turns out that impeachment does not require a criminal act, but it does require an abuse of power, which we certainly have in the Trump case. As explained in the Impeachment Handbook, “An impeachable offense is one that puts the Constitution in jeopardy. This act might also be a common crime, but the reason we impeach is not to punish common crimes.”
It is also not true that Congress cannot remove a president for exercising authorities that are constitutionally committed to his discretion. These questions are “confused by failing to differentiate between the exercise of a lawful power, and the unlawful exercise of such a power.” For example, “the president could clearly be impeached were he to take bribes from a foreign state in exchange for recognition. The grounds for impeachment lie not in the exercise of the power per se but in its corrupt exercise.”
So the question is not whether the President has the right to fire ambassadors (he clearly does) or the right to withhold money from Ukraine (he clearly does) but whether he did these things for a corrupt purpose (getting dirt on Joe Biden, which he clearly did).