Why the Framers would reject the Democrats' impeachment criteria

Why the Framers would reject the Democrats' impeachment criteria
© Greg Nash

Many Democrats, including some constitutional law professors, now argue that President TrumpDonald John TrumpSenate gears up for battle over witnesses in impeachment trial Vulnerable Democrats tout legislative wins, not impeachment Trump appears to set personal record for tweets in a day MORE can be impeached without evidence of high criminal acts. Some took the opposite view when President Clinton was being impeached. Hypocrisy aside, there are good historical reasons why the impeachment approach of the Democrats is wrong.

During the debates over the impeachment provisions of the Constitution, two differing views of our structure of government were presented. Some Framers argued that a president should be subject to removal by the legislature if he engaged in malfeasance of office or other comparable noncriminal misconduct. The other Framers took the view that giving the legislature such broad authority to remove a president would turn our country into the kind of parliamentary democracy that existed in England, rather than a republic with a strong executive branch.

The Framers rejected the broad criteria proposed by some, and required instead that a president could be removed only after a trial when he was convicted of “treason, bribery, or other high crimes and misdemeanors.” These more specific criteria assure that a vote to impeach an American president would be very different from a vote of no confidence by parliament, which removed a British prime minister.

ADVERTISEMENT

Ours has proved to be the more durable system, because of its stability, certainty, and predictability. A British prime minister can be removed on a partisan vote. An American president, on the other hand, can be removed only if both parties agree that he has violated the stringent criteria set out in Article II of the Constitution. Throughout our history, there have been some who have wrongly argued the criteria for impeachment or removal is whatever the House and Senate want it to be. This would turn it into an entirely partisan process, and the Framers did not intend that.

When it comes to removing a president, there is an added constitutional protection. The chief justice of the Supreme Court must preside over the trial, thus introducing a judicial element into the process. The role of the chief justice is, in my view, and in the view of at least two former Supreme Court justices, to assure that Congress does not ignore the Constitution and put itself above the law. We hear from so many Democrats today that no one is above the law, referring to the president. But neither is Congress above the law, and the law mandates that the explicit criteria laid down in the Constitution for impeaching a president must be followed.

Applying these historical truths to the current situation, the case for impeaching President Trump based on the available evidence is extremely weak. The phone call to the president of Ukraine may have been ill advised, but that is a judgment for voters to make. There is nothing in the call that even approaches the constitutional criteria for impeachment and removal of a president. Nor does the special counsel report contain evidence that would justify impeachment. Democrats are seeking to weaponize the Constitution for partisan purposes.

This is not the first time in our history this has happened. Both President Johnson and President Clinton were improperly impeached. Johnson committed no crime, and if Clinton committed a crime, it was not a high crime. It was a low crime involving his personal conduct. Only President Nixon was properly subjected to impeachment and the prospect of removal because he had committed high crimes.

Alexander Hamilton understood the difference between low crimes and high crimes. When he was secretary of the Treasury, he committed adultery, which was a felony at the time, and then paid hush money to prevent disclosure of his felony. But then, when his extortionist threatened to lie and say that he paid the hush money out of Treasury funds, Hamilton realized if he had done so it would have constituted an impeachable high crime. So he published an essay admitting his low crimes but disproving any high crime. Hamilton was never impeached.

ADVERTISEMENT

History and words matter whether one believes in a living or a dead Constitution. The criteria for impeachment cannot and should not be ignored for partisan purposes. The demand by Democrats to impeach President Trump, without satisfying the constitutional criteria, may be turned tomorrow into a demand by Republicans to again impeach a Democratic president while ignoring these criteria.

That is why every advocate of impeachment should pass the “shoe on the other foot” test. Would you support impeachment against a president of your own party if she or he were accused of this conduct? Unless the answer to that question is yes, it would be unprincipled to engage in this process of impeachment taking place on Capitol Hill.

Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School. His new book is “The Case Against the Democratic House Impeaching Trump.” You can follow him on Twitter @AlanDersh.