Their argument rests on the idea that Democrats have failed to follow the rules of criminal proceedings in conducting their inquiry. But there’s an issue with that premise: Impeachment proceedings were not designed to follow the same rules as criminal ones. Claiming otherwise — as so many Republicans already have — perpetuates two fundamental misunderstandings of the Constitution.
The first is the idea that you need to break a law to commit an impeachable offense. George W. Bush’s press secretary, Ari Fleischer, made this argument in his response to Lt. Colonel Alexander Vindman’s devastating testimony. “The Army officer working at the NSC was right. The POTUS mention of the Bidens was inappropriate,” Fleischer wrote on Twitter. “The question now is: Was it a crime? Was it an impeachable offense?”
As it happens, it’s perfectly possible to answer Fleisher’s first question in the affirmative: Yes, Trump’s conduct — asking a foreign power to do him a “favor” of opening an investigation into his political opponent in exchange for a White House meeting and foreign aid — is illegal. Specifically, it violates Section 201(b)(2) of the criminal code, which clearly prohibits public officials from seeking, receiving, accepting or offering anything of “value.” (And for a political campaign, there’s just about nothing of more “value” than an investigation into your opponent.)
But the real answer is that it doesn’t matter. Because our Constitution has never based “high crimes and misdemeanors” on criminal law. In fact, criminal activity is neither sufficient nor necessary for impeachment.
After all, plenty of criminal violations do not rise to the level of an impeachable offense. In Iowa, for instance, it’s illegal to pass off margarine as butter — a deplorable thing to do, but certainly not a high crime. Jaywalking, speeding, littering: None of these offenses warrant impeachment either. If every criminal infraction were reason enough for impeachment, the results of our elections would last only as long as our presidents maintained perfect behavior. And our elected officials would be forced to walk on eggshells every day for fear of breaking laws they don’t even know exist.
At the same time, there are plenty of ways presidents could abuse their power that might not be criminal, but would still be impeachable. For instance, the president could pardon a family member for murdering his political opponent. Or he could order a nuclear attack on Canada because he doesn’t like hockey. Neither of these decisions would violate a law, per se, but they would both provide more than enough basis for removal. As a young House Republican said in January 1999: “You don’t even have to be convicted of a crime to lose your job in this constitutional republic if this body determines that your conduct as a public official is clearly out of bounds in your role.”
The congressman’s name? Lindsey O. Graham (S.C.), now a senator and one of President Trump’s staunchest defenders.
In this way impeachment, fundamentally, isn’t about whether a president has failed to follow a criminal code, but about whether he has wielded the powers of his office for personal benefit. As then-Rep. Mike Pence (R-Ind.) said before Congress in 2008, reflecting on a witness’s testimony: “This business of high crimes and misdemeanors goes to the question of whether the person serving as president of the United States put their own interests, their personal interests, ahead of public service.”
The vice president’s words align with Alexander Hamilton’s understanding of impeachable offenses — which he defined in “The Federalist” No. 65 as “[abuses] … of public trust.” And the abuse of public trust that our founders were most afraid of was coordination with foreign powers. In fact, when James Madison proposed including impeachment in the Constitution, he explicitly said he did so in part to ensure that no president would “betray his trust to foreign powers.” Even one of the early opponents of impeachment at the constitutional Convention in Philadelphia, Gouverneur Morris, later conceded that “no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay.” And in his farewell address, George Washington called “foreign influence … one of the most baneful foes of republican government.”
So, regardless of whether Trump has technically broken the law, by soliciting a bribe from a foreign power in secret — and opening himself up to blackmail — the president has committed not only an impeachable offense but a paradigmatic impeachable offense, one of the very offenses our founders wrote impeachment into the Constitution to protect against.
This is presumably why, over the past several weeks, Republicans have devoted their energy to a second process argument — demanding that the House accord Trump the rights criminal defendants receive at trial. The president should have a right to face his accusers, they have said. And the witnesses to his crimes, they’ve added, should be forced to answer questions in public.
This argument never made much sense either. Calling for trial rights is nonsensical at this stage, because the Constitution vests the Senate, not the House, with the “sole power” to conduct a trial. The House is merely responsible for investigating accusations against the president — meaning they’re supposed to serve as a grand jury of sorts. And as anyone who has ever studied the law, or even watched an episode of “Law & Order,” knows, grand jury proceedings, by design, take place in private.
The other reason this argument doesn’t make sense is practical. The problem with calling for a full-blown, trial-like process is that you just might get what you wish for. And indeed, that’s exactly what Pelosi and House Democrats gave Republicans on Thursday. Now that the House has called the president on his bluff and authorized public proceedings, Trump’s accusers will be able to air their testimony and evidence live on national television — in hearings led by House Democrats.
So why did House Republicans demand Pelosi publicize impeachment proceedings if they knew it could backfire? Because all of the other defenses of Trump have completely fizzled out. First, they said Trump was trying to fight corruption — before we learned he had cut the State Department’s anti-corruption funding. Then they said the whistleblower report was “hearsay,” until they realized the president himself had confirmed basically everything in it. Then they tried defending Trump’s actions, plastering campaign T-shirts with that haunting three-word phrase: “Get Over It.”
The only argument they had left was attacking the manner in which the investigation was taking place, since the actions Trump took were so blatantly impeachable. And now the whole country is going to find out exactly what he did.
So while calling for the impeachment proceedings to resemble a criminal trial may have been an appealing tactic for Trump’s defenders, now that Democrats have acceded to their demands, Republicans have painted themselves into a corner. And with witnesses set to testify publicly on television in the coming weeks, it’s more likely than ever that Senate Republicans will be pressured by their constituents into doing the right thing and removing Trump from office — before it’s too late.