What do we judge? There has been some debate over whether offenses must be violations of criminal law in order to be impeachable. This debate has caused confusion.
To clarify: Violations of criminal law may well justify impeachment. If they rise to the level of “high crimes and misdemeanors,” they would be among potential impeachable offenses. They may even suffice as grounds for impeachment, though they are not necessary.
Other, non-criminal offenses can also justify impeachment. The 1974 House report on impeachment offers three categories of such action:
(1) exceeding the powers of the office in derogation of those of another branch;
(2) behavior in a manner grossly incompatible with the proper function and purpose of the office; and
(3) employing the power of the office for an improper purpose or for personal gain.
Each of these categories represents conduct that subverts the system of government, as the authors of the report argued.
To think that offenses of this kind are not violations of law is a mistake. They may not be violations of the criminal code, or of our civil laws. They are, however, violations of the Constitution, and the Constitution is a law. Yes, the Constitution was passed by the entire body of the people through a process of ratification, rather than being created by representatives through the process of legislation, but it is a law nonetheless. It is the first law.
What part of the Constitution do offenses of this kind violate? The Constitution requires that the president swear the following oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”
The Mueller report probed this concept of “faithful execution” and, to interpret it, cited a 1755 dictionary written by Samuel Johnson, which defined the term as “strict adherence to duty and allegiance.” The report continues, "The concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office holder’s personal interests.”
To determine whether someone executed the powers of their office faithfully, you can’t press a button and run an algorithm. You need to make a judgment — just as juries make judgments about whether something is beyond reasonable doubt or is established by a preponderance of evidence. Every decision about whether something unlawful has happened entails judgment, not merely some sort of rote, predetermined application of a rule.
This case, too, requires judgment — first by the members of the House of Representatives, and then, perhaps, by the members of the Senate.
But it already requires our judgment as citizens. If this is our moment of something like national jury duty, what are we called to judge?
Our predecessors as citizens in this republic established a standard for the execution of the office of the presidency. That was the standard of faithfulness. The real question at stake in the impeachment inquiry into Trump’s actions, as documented in the special counsel’s report, and as being investigated now in relation to the call with Ukraine’s President Volodymyr Zelensky, is whether we care that this standard be enforceable.
I have argued before that any articles of impeachment should be confined to legal categories. But I also note, again, that the relevant legal category is not merely the criminal but also the constitutional, and, in particular, the requirement that the president execute the powers of office faithfully.
I would therefore ask my fellow, tired Americans to gather themselves up once more for impartial consideration of what is necessary for the preservation of our legal system. The president is not alone in the hot seat. We’re all in it. The most important question is, what do we want the standard to be for the operation of our constitutional mechanisms? How will we judge?
Do we want to maintain a standard pegged to “faithfulness”? Ask yourself this. Debate it with friends.
Find someone with whom you disagree politically and discuss this question. I’ll buy lunch for two for the first 10 people who can demonstrate that they’ve taken a friend of a different political persuasion to lunch to have this conversation.