This week, Donald Trump’s lawyers contended in their own trial brief that even if House Democrats’ allegations are interpreted as facts, the president’s conduct is not impeachable. Their arguments suggested that an impeachable offense must be a statutory crime, noting that House Democrats’ impeachment articles — abuse of power and obstruction of Congress — did not explicitly accuse the president of committing a crime.
The Founding Fathers wrote impeachment—originally a Roman political institution—into the constitution for the purpose of removing an official who had “rendered himself obnoxious,” in the words of Benjamin Franklin. Without impeachment, Franklin argued, citizens’ only recourse was assassination, which would leave the political official “not only deprived of his life but of the opportunity of vindicating his character.” It would be best, Franklin argued, “to provide the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be justly accused.”
Impeachment as an institution has its roots in ancient Rome. Only senators could be impeached in ancient Rome—the emperor could not, leading to several chaos-making political assassinations (“et tu Brute”). Franklin, and others like Alexander Hamilton, paid special attention to impeachment because British politics didn’t have a structure for impeaching the leader. The British crown—the king or queen—is literally unimpeachable.
The Founding Fathers didn’t think that impeachment should happen for just any reason. For example, Hamilton wrote in the Federalist papers that grounds for impeachment should be
“Those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
The founders also debated on the criteria for impeachment, settling on treason, bribery and high crimes and misdemeanors against the state. “High crimes and misdemeanors” was another term that originated in British law. A High Crime is activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons. A high crime is one that can be done only by someone in a unique position of authority, which is political in character, who does things to circumvent justice. Impeachment on these grounds was considered better for the country than assassination. “The Constitution’s impeachment procedures make the removal of the chief magistrate less violent, less disruptive, and less error-prone than assassination.”
Clearly the White House Council does not agree. Perhaps we can call on the Russians to enact the obvious alternative…