Feldman: Impeachment articles are ‘high crimes’ Founders had in mind
The articles of impeachment under consideration by the House clearly allege high crimes and misdemeanors under the Constitution. Apart from the factual truth of allegations, the articles comport with the definition of impeachable conduct. Start with abuse of office for personal advantage or gain, directly aimed at distorting the electoral process. For the Framers, this conduct was the classic form of a high crime or misdemeanor.
Their words demonstrate as much. At the Constitutional Convention in 1787, George Mason of Virginia warned of the “danger” that presidential electors could be “corrupted by the candidates.” Corruption meant the conferral of improper benefits for personal gain. James Madison worried about the presidency being used for a scheme of “peculation,” in other words, self-dealing or embezzlement for personal advantage.
What is more, the two impeachment trials best known to the Framers both involved abuse of office for improper personal gain. Warren Hastings, who was the former British governor general of Bengal, was undergoing his impeachment even as the Framers met in Philadelphia. George Mason referred to Hastings at the convention. Hastings was impeached for, among other things, “corruption, peculation, and extortion.”
The basic claim against him was that he had solicited and received bribes and gifts from people in Bengal while in office as governor general. Lord Macclesfield, who was the treasurer of England, was impeached in 1725, for taking payments to sell offices. The articles of impeachment charged Lord Macclesfield with seeking personal gain under color of office, that is, while he occupied the official role of the treasurer of England.
The takeaway from this historical evidence is that abuse of office for personal gain is the archetype of a high crime and misdemeanor under the Constitution. Thus, if the facts show that President Trump sought his own personal gain when he solicited Ukrainian President Volodymyr Zelensky to announce investigations of the Bidens and of Crowd Strike, then he has undoubtedly committed an impeachable offense.
As for obstruction of Congress, the violation lies in President Trump issuing a blanket denial of the authority of Congress to engage in its impeachment investigation and his direction to all executive branch officials not to appear before Congress or cooperate. The precedent for considering this conduct lies in the article of impeachment adopted by the House Judiciary Committee charging Richard Nixon with obstruction of Congress. However, even President Nixon did not entirely stonewall Congress. In fact, he partially cooperated with the congressional inquiry. The charge against President Trump is for conduct that exceeds that of President Nixon when it comes to obstruction of Congress.
Under constitutional logic, the basis for this article of impeachment is fundamentally about the separation of powers. The Constitution gives the House of Representatives the “sole power of impeachment.” That means the House holds the power and authority to oversee the conduct of the president to determine whether or not he should be impeached. Thus, by issuing a blanket refusal to cooperate in the impeachment investigation, President Trump denied the House its constitutional authority.
The only remedy under the Constitution for this denial of congressional authority is impeachment. Consider that the executive branch cannot be responsible for presidential oversight. Consider further that the judiciary likely could not compel presidential participation in an impeachment inquiry, since impeachment is a power conferred on Congress, not the judiciary. It follows that impeachment itself is the clearly defined remedy for presidential refusal of the granted impeachment authority.
If the president had the authority to reject an impeachment inquiry, he would literally be above the law. He would not be subject to control by the other two branches if he committed wrongdoing. The name the Framers had for such an unimpeachable officer was a monarch. Obstruction of Congress is impeachable under the Constitution because it undercuts the basic structure of democracy that is founded in this country.
Noah Feldman is the Felix Frankfurter Professor at Harvard Law School. He testified before the House Judiciary Committee on the impeachment of President Trump this month. He is a columnist for Bloomberg Opinion and hosts the “Deep Background” podcast. He also served as a law clerk for Supreme Court Justice David Souter and is the author of numerous books including “The Three Lives of James Madison: Genius, Partisan, President.”