Plenty of Republican lawmakers share Thornberry’s reasoning, as well as his position that the remedy is the coming election: “Let the American people decide this in less than a year.”
They could not be more wrong. Trump’s action regarding Ukraine, which included demanding that Zelensky publicly announce a criminal investigation into the Bidens in exchange for an Oval Office meeting and the release of military aid to Ukraine, according to testimony in the impeachment inquiry by Deputy Assistant Secretary of State George Kent and Ambassador to the European Union Gordon Sondland, was about as impeachable as an offense can get. Therefore, waiting for an election — the very thing compromised by the offense — is not an option.
As a constitutional law professor, I am used to considering hypotheticals, but I do not need one here. Soliciting foreign intervention to undermine the integrity of the American electoral system is exactly the sort of misconduct the framers had in mind when they established the impeachment process in the Constitution. They were intensely concerned about having meaningful checks against a president disposed to tyranny; after rebelling against a king, they weren’t going to turn around and create an all-powerful leader who had the authority to defy any means for holding him accountable except the one he was trying to rig: the next election. William Davie, a North Carolina delegate at the Constitutional Convention, presciently put it this way: “If he be not impeachable whilst in office, he will spare no effort or means whatever to get himself re-elected.”
Thornberry is right that the Constitution specifies “treason, bribery, and other high crimes and misdemeanors” as impeachable, but suggesting that this language “basically means felonies” ignores everything we know about the law of impeachment. Yes, impeachable bribery can be understood as a felony set forth in the U.S. Code, but the founders believed a corrupt exchange in which the president gets something illicit in exchange for using his power was unmistakably impeachable, felonious or not.
As for “other high crimes and misdemeanors,” the phrase was technical language taken from the British system, where it was used to refer to “political crimes,” which in turn meant abuses of power, serious injuries to the republic and breaches of the public trust. At the Constitutional Convention, delegates described “other high crimes and misdemeanors” variously as “great” offenses against the United States, “attempts to subvert the Constitution,” and instances when the president “deviates from his duty” or “dare[s] to abuse the power invested in him by the people.” In the Federalist Papers, Alexander Hamilton declared that impeachable offenses are “those offences which proceed from the misconduct of public men, or, in other words, the abuse or violation of some public trust,” and “relate chiefly to injuries done immediately to the society itself.”
In his influential lectures on the Constitution, given shortly after ratification, James Wilson, who was later nominated to the Supreme Court by President George Washington, said that impeachable offenses were “political crimes and misdemeanors.” And Justice Joseph Story, in his “Commentaries on the Constitution” in the 1830s, explained that an impeachable offense was “committed by public men in violation of their public trust and duties” and “partakes of a political character, as it respects injuries to the society in its political character.”
One theme that clearly emerges from these early discussions of the scope of impeachable offenses is that they are not neatly delineated but depend on context and gravity. So what kinds of misconduct fit this terminology? The Virginia delegate George Mason worried at the Constitutional Convention that if the president “has the power of granting pardons before indictment or conviction, may he not stop inquiry and prevent detection?” James Madison responded, “There is one security in this case to which gentlemen may not have averted: If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected also, he may likewise be suspended and be impeached and removed.”
Madison added, “This is a great security.”
We know from the debates on the scope of impeachable offenses in the founding era and from subsequent congressional practices that not all crimes are impeachable (jaywalking) and not all impeachable offenses are crimes (President Nixon’s ordering the heads of the CIA and IRS to harass his political enemies). An impeachable offense does not have to be a crime; indeed, none of the examples of impeachable misconduct given by the founders involved the violation of a criminal statute. Such a violation could be impeachable, but the Constitution does not limit impeachable offenses to felonies.
Consider now how the president’s conduct in trying to undermine the integrity of our electoral system easily fits the criteria for impeachable offenses. You do not need a quid pro quo for an offense to be impeachable, but here there was an obvious quid pro quo in Trump’s call to Zelensky on July 25: The American president had conditioned release of congressionally appropriated funds to Ukraine if the Ukrainian president publicly declared he was opening a criminal investigation into whether Hunter Biden was corruptly doing business in Ukraine — and by extension whether his father, Trump’s political rival, was guilty of corruption.
Trump called his request a “favor,” and the circumstances make clear that the president had for some time been acting in bad faith in looking for ways to get foreign leaders to help his reelection campaign. The ask was not a one-off, and the president did not stumble into it. Trump had deviated from the usual procedures and protocols for handling a bona fide investigation of a U.S. citizen for potential crime abroad, instead putting together a “shadow” government, led in part by his private lawyer Rudolph W. Giuliani, to do his bidding in Ukraine. Such misconduct was plainly a breach of trust.
Before and after the “favor” Trump requested of Zelensky, he and his lawyers and defenders in Congress have been arguing that he had absolute immunity from any criminal investigation while in office, absolute executive privilege to keep confidential any information he did not wish to share with other branches, the power to shut down an impeachment inquiry and the entitlement to defy subpoenas from Congress (even though the third article of impeachment approved against Nixon charged him with defying four subpoenas, far fewer than the number Trump has defied). Accepting these dubious claims would leave the next election as the only way to hold the president accountable — but he was planning to game that by having foreign leaders find dirt on a political enemy.
Even now, consider how in the fallout from the call, the president and his defenders are talking about the Bidens’ actions as much as those of the president. Any time a president negotiates with a foreign leader to help himself and not the American people, it is likely an impeachable offense. It was here because soliciting foreign intervention in an American election undermines the integrity of our electoral system. It is hard to imagine a more serious breach of the public trust. The American people expect their president to be negotiating with foreign leaders to further our national security interests, not to get dirt — or invent dirt — that will help their reelection.
Neither the context nor the gravity of Trump’s conduct presents a hard question relating to impeachment. And no, it can’t wait for the 2020 election.