This is why the House articles of impeachment are constitutional

This is why the House articles of impeachment are constitutional
© Getty Images

The Constitution grants the House of Representatives the sole power of impeachment. It may seek to remove a president for “treason, bribery, or other high crimes and misdemeanors.” In response to the two proposed articles of impeachment for abuse of power and obstruction of Congress, professor Alan DershowitzAlan Morton DershowitzCellphones haven't stopped cops from lying — only courts can do that Moussaoui says he now renounces terrorism, bin Laden The Hill's Coronavirus Report: Frist says Manhattan Project-like initiative necessary to fight virus; WH to release plan for easing lockdowns MORE has argued that the allegations fail to satisfy the constitutional criteria for impeachable offenses. But there should be little doubt that allegations meet the criteria. In fact, the articles describe the kind of misconduct the Framers designed impeachment to address.

The Constitution does not define “high crimes and misdemeanors,” but we are certainly not without guidance here. The historical understanding of the term, which is derived from English law and practice, referred to the misconduct of government officials that could be deemed out of the ordinary. Discussions at the Constitutional Convention of 1787, though brief, also illuminate its scope. After James Madison made comments that were critical of impeachment for mere “maladministration,” the Framers added “other high crimes and misdemeanors” to distinguish between unpopular policy choices and conduct warranting removal from office.

A quarter century ago, the legal scholar Charles Black concluded that impeachable offenses are acts “that a reasonable man might anticipate would be thought abusive and wrong, without reference to partisan politics or differences of opinion on policy.” Black further explained that offenses subject to impeachment are extremely serious offenses “which in some way corrupt or subvert the political and governmental process.” Finally, he specified that impeachment should only be considered for “a definite act or acts,” as opposed to general “lowness and shabbiness.” If the bar were set at “lowness and shabbiness,” then the current occupant of the White House might have suffered impeachment some time ago.

ADVERTISEMENT

In light of this understanding, the question is whether the two articles of impeachment today, abuse of power and obstruction of Congress, qualify as “high crimes and misdemeanors.” The simple answer is they do. The House is prepared to prove that President TrumpDonald John TrumpDemocrats blast Trump for commuting Roger Stone: 'The most corrupt president in history' Trump confirms 2018 US cyberattack on Russian troll farm Trump tweets his support for Goya Foods amid boycott MORE abused the power of his office by soliciting “the interference of a foreign government, Ukraine, in the 2020 United States presidential election,” and by interposing “the powers of the presidency against the lawful subpoenas” of the House.

These offenses are both extremely serious and relate to the subversion of the political process. The facts, as alleged in the proposed articles, tell a story of a president willing to pursue a scheme designed to improve his political prospects in the next election at the expense of national security, including the support of a vital ally against the common foe of Russia and the potential to give foreign interests leverage over the president himself. The allegations make clear that the president sought to shield this scheme from any meaningful oversight. The articles concern definite acts, not tendencies or habits. They assert constitutionally impeachable offenses.

Dershowitz maintains that abuse of power and obstruction of Congress are nowhere mentioned in the Constitution, and that the proposed articles of impeachment are unconstitutionally vague and open ended. It is true that the Constitution does not name “abuse of power” and “obstruction of Congress” as impeachable offenses, but other than crimes of “treason” and “bribery,” the text does not name impeachable offenses. By adding “other high crimes and misdemeanors,” the Framers plainly intended that the bases for impeachment should not be limited to treason and bribery.

Nor are the proposed articles too vague and open ended. It is possible that articles of impeachment lacking sufficient specificity could reach beyond the constitutional authority of the House to adopt. However, that is not the case here. The proposed articles explain in no uncertain terms the conduct in which the president is alleged to have engaged in. If this were a criminal case, a motion to dismiss for failure to state an offense ought to be denied, as the specific factual assertions in the proposed articles make clear what the president is alleged to have done, and the president could not then reasonably claim an inability to understand the allegations against which he needs to defend himself in a Senate trial.

To the list of issues surrounding this impeachment effort, we need not add the constitutionality of the charges against the president. The proposed articles satisfy the constitutional criteria for impeachment. The alleged conduct looks very much like the betrayal of public trust that the Framers feared presidents might pursue absent the possibility of impeachment.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”