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Trump Impeachment Reveals Flaws

The grounds for impeachment in the Constitution are stated as “treason, bribery, and other high crimes and misdemeanors.” The House of Representatives has the sole power to bring impeachment, and the Senate, with the Chief Justice presiding, has the sole power to try impeachment.

The phrase “high crimes and misdemeanors” is not defined in the Constitution. But, then as now, minor crimes, usually punishable by less than a year in prison, have been generally understood as misdemeanors, and greater crimes, usually punishable by more than a year in prison, were understood as felonies like murder, robbery, etc.

A crime or misdemeanor is “high” only if it is committed by a public official, someone who had taken an oath of office, and betrayed the public trust. A president may be impeached for any crime or misdemeanor.

All it takes is for 218 members of the House to file articles of impeachment for any reason they can agree to call a crime or misdemeanor, which can be almost anything they don’t like.
Impeachment was among the most debated issues at the Constitutional Convention, before it was approved as a check on the powers of the president and other federal officials. The Founders anticipated that it would be used far more than it has.

In their view, impeachment was a tricky matter. Although important as a condition of good government, it remained a dangerous tool in partisan hands.

The problem, as Alexander Hamilton wrote in “Federalist No. 65,” is that impeachment “will seldom fail to agitate the passions of the whole community, and divide it into parties more or less more or less friendly or inimical to the accused …

It will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other.”

The Founders presumed that occasions of serious misconduct, whether crimes or misdemeanors, would be clarified by the factual evidence presented. Unfortunately, if evidence is
missing or subject to conflicting interpretations, the issue becomes political rather than factual.

The worst fears of the Founders have come to pass. Impeachment has become politicized, a tactic of factional struggle, as the strict party-line votes in Congress make evident. The price of faction is loss of truth, as the Founders understood.

Fast forward to today. The Democrats have impeached Trump for “abuse of power” in interfering in the 2020 U.S. elections by asking for Ukrainian help to investigate a political opponent, Joe Biden.
Trump and the Republicans claim that he was asking for Ukraine’s help in investigating interference from Ukraine in the 2016 U.S. elections, purportedly made at the hand of the Democrats.

Democrats have further charged that Trump obstructed justice by directing senior officials in his administration to ignore Congressional subpoenas from House committees considering impeachment.

Trump and Republicans claim executive privilege and have called for judicial review of the issue.
Party politics are all about defeating your opponents, not about justice, or minority rights. Facts no longer matter in a highly politicized world where objective truth no longer exists. What counts instead is how to spin some facts and ignore others, how to construct a “winning” argument effective in persuading a mass public in your favor.

In the partisan-charged atmosphere Hamilton feared, and which we are now experiencing, where is justice to be found? What is to keep a party with Congressional majorities from dismissing any president and passing any laws it wishes? What’s to keep it from over-riding the courts? What is to prevent, in due course, the oppression of minorities, even their elimination, by partisans led by demagogues and ideologues?

There may be a silver lining to the potential abuse of impeachment. More routine impeachments would be a strong check on the ambitions of an imperial presidency. They would restore a measure of power which Congress has lost in recent decades to presidents and to the “deep state” embedded in the executive branch. They would make it harder to conduct unauthorized foreign wars and reduce liberties at home. More frequent impeachments would re-center authority in the collective deliberations of the peoples’ representatives, where it arguably belongs, rather than in the whims and dictatorial potential of individuals exercising the power of the presidency.

The re-centering of power from the executive branch to the legislative branch would benefit the public, however, only if Congress gets its own house in order. Gerrymandering, the power of big donors, structural discrimination against third parties, over-sized districts, partisan deadlock, and “winner take all” elections have gradually corrupted Congress to the point where its recent Gallup poll disapproval rating is 75 percent.

If Congress is as problematic with most Americans as the presidency, it only shows how serious our country’s problems are, and how much we need fundamental structural change to deal with them.