President Trump’s impeachment and trial, like everything else with his administration, defies dispassionate analysis. The partisan trenches are deep and the tenets of objectivity bring few rewards. Social media encourages extreme opinions, and more traditional media outlets narrowcast to their ideological adherents. Academia is also a mixed bag of reliability. I can hardly claim to be detached, but there is value in trying to put the current impeachment process in context, in trying to wrestle with the proper standards to consider as the impeachment trial unfolds.

Over several posts, I hope to look at 1) what the Constitution says about impeachment, 2) presidential impeachments in history, and 3) how President Trump’s actions should be judged in light of the Constitution, history, and other standards frequently brought to bear.

The Constitution and Consistency

During the Clinton and Nixon impeachment sagas,* partisans attempted to force cramped readings or attach extra conditions onto the Constitution’s text to defend their preferred presidents. President Trump’s allies are doing the same. This does not make them wrong, but we should resist short-term, political thinking when we approach the Constitution. The document is a set of principles meant to defy and limit our politics. In a healthy constitutional republic, we should not ask, “how can I read the Constitution to support my favorite politician?” Instead, we should read it candidly and, to the degree we can, stripped of our own desires. This is how principles work. They don’t bend with the breeze; they shelter us from the storm.

A search for constitutional consistency right now will feel like the quest for the yeti. There are hints and shrouded glimpses, but the real article is elusive, at least in the political forest. Many people involved in the Clinton controversy are still around, either as elected officials, pundits, partisans, or academics, for the Trump trial. Some, like National Review’s Jay Nordlinger, have strived to articulate clear, durable principles–about Congress, the President, and the Constitution–that apply in both cases. He is the exception.

More commonly, we are witnessing political expediency, where partisanship or economic gain overwhelm norms and standards. Alan Dershowitz is a walking contradiction. In 1998, the famed Harvard professor argued that impeachment did not require a crime. Now, apparently, it does. Lindsey Graham (R-SC) was one of the House managers during Clinton’s impeachment. Then, he argued about the honor and integrity of the president and he begged members of Congress not to pre-judge the case. Now, he is saying the opposite. In 1998, Jerry Nadler (D-NY) lamented that impeachment must be bipartisan and widely supported to be legitimate. Now, he whistles a different ditty. The partisan nature of impeachment is no longer a fatal flaw. We could do this all day on both sides of the aisle, but let’s try to be more productive.

Impeachment’s Place and Purpose

Article 1 of the U.S. Constitution sparely defines Congress’s role in a process familiar to our nation’s founders. The House is given the power of impeachment, while the Senate has the “sole power” to try all impeachments. Nothing is said about how the House is to go about the process of impeachment and little is mentioned about the contours of a Senate trial. Senators are obligated to take an oath or to affirm their roles and the Chief Justice presides when the President is accused.

Presidential impeachments are the only kinds directly referenced in Article 1. This is not accidental. Impeachment was designed primarily as a curb on presidential or “executive” power. Everyone, including the Constitution’s strongest advocates, acknowledged the inherent dangers of the presidency. The President was given the authority to command the military and conduct foreign affairs on behalf of the people. Those two powers, along with the unlimited ability to issue pardons, carry more than a whiff of monarchy. Extensive executive authority was necessary, Hamilton reasoned in Federalist 70. “Energy in the executive is the leading character in the definition of good government.” An energetic executive can ably defend the nation against uprisings and attacks and enforce the law steadily and effectively.

Granting one person such influence forced the framers to defend the branch during the ratification phase. Hamilton wrote Federalist 69 to assuage the fears of those convinced the new Constitution had simply traded the king we overthrew for a new one. Terms of office existed and were reasonable. Vetoes could be over-ridden. Being Commander-in-Chief depended upon legislative agreement and funding. Perhaps most vitally, the President of the United States could be impeached and separated from office. Unlike any monarch, American presidents were subject to the peaceful judgment of the people’s elected officials, even to the point of removal. Instead of requiring a revolution, removing a President would be a matter of process.

Treason, Bribery, High Crimes, and Misdemeanors

The standard for removal, however, is unquestionably vague. In Article 2, federal civil officers may be impeached and removed for “treason, bribery, or other high crimes and misdemeanors.” Article 3 defines treason as waging war against the U.S. or “adhering to [the nation’s] Enemies, giving them Aid and Comfort.” Bribery is not similarly defined, and neither are “high crimes and misdemeanors.”

Bribery is typically thought of in statutory terms. Asking, for example, if the president committed bribery becomes a matter of examining the relevant federal codes. If the president is guilty of bribery, he or she would be subject to criminal prosecution after impeachment, which is allowed by the Constitution. This is true, but probably incomplete. The framers, it is argued, viewed bribery as any use of power that resulted in a private benefit divorced from the public good. This is divisive, and not settled, but if adopted, using this construction moves “bribery” closer to “abuse of power” and away from statutory definitions.

“High crimes and misdemeanors” can also be read broadly or narrowly. A narrow reading, preferred by President Trump’s defenders in this case, would require explicitly criminal conduct in order to impeach a sitting president. Combining that with a strict reading of “bribery” would mean that impeachment, except in cases of treason, would be the political equivalent of a legal proceeding. Impeachment smuggles the federal code into a political setting and legitimacy hinges on illegality. There are good reasons to reject this approach.

The framers thought of impeachment as only marginally related to illegal behavior. John Jay, when unpacking the treaty powers of the U.S. Senate in Federalist 64, said fears of legislative and executive corruption here were misplaced. Using treaties for narrow, personal gain would require the degradation of the states, which then appointed Senators, as well as the president. A nefarious executive, who might use treaties to enrich himself or his estate, was “too gross and too invidious to be entertained.” Our leaders, thought Jay, would transcend selfishness. Instead of avarice, “honor, oaths, reputations, conscience, the love of country” should shape presidents and senators. If these proved inadequate, Jay hoped the Constitution’s selection methods would pull people of talent and integrity into office. Failing these, as a matter of last resort, impeachment should be a “motive to good behavior” for the president.

Alexander Hamilton, also writing as Publius, but in Federalist 65, elaborated on the Senate’s responsibility to try impeachments. Such trials would not only revolve around the prosecution of federal law, but would include:

“those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

Hamilton knew that lodging the power to impeach with the House and to try with the Senate might stir the people’s passions, which would pollute the representative bodies. As he wrote, “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” A “political” kind of crime, in other words, would unleash political passions, but the people, through their leaders, should settle impeachments instead of the judiciary, which was too far removed. The Senate, for Hamilton, could be sensitive to the masses without being controlled by them. Of course, the Seventeenth Amendment, which allows for the direct election of Senators, skews the design. Hamilton would likely not be all that impressed with the level of demagoguery so often on display in what was once known as the world’s greatest deliberative body.

Cobbling together Jay’s and Hamilton’s thoughts forces us to a broader reading of “high crimes and misdemeanors.” Violations of the public trust, which might include dishonorable actions, could reveal an executive more motivated by self than national interest. These sorts of political acts may either skirt the letter of the law or involve no code whatsoever, but they might demonstrate a leader unworthy of the president’s power.**

This does not solve the problem, of course. Not all violations of the public trust are created equally. Not every abuse of power demands removal from office. There are still obvious roles for judgment and prudence as we consider the gravity of overturning an election. Still, I think it is fair to say that the Constitution does not require an illegal act to impeach and remove a president. At the same time, it would not force impeachment and removal on any president who broke the law. In strict terms, illegality is neither necessary nor sufficient for impeachment and removal.

Next, I’ll consider other presidential deeds and misdeeds. The goal will be to provide a context to judge President Trump’s actions.

*Clinton was impeached by the House and acquitted by the Senate, while Nixon’s impeachment was short-circuited by his resignation. He was never technically impeached, but he was well on his way to removal, he believed.

**This understanding also fits the English context from which the framers borrowed impeachment. As Stephen B. Presser writes, “the historical record of impeachments in England…does not support” a tight reading where a crime against the state is required for impeachment. Part of the confusion is the use of the word “misdemeanor,” which we define as a petty criminal offense. In that setting, the term was more synonymous with “misdeeds.” See The Heritage Guide to the Constitution, 2nd Edition, pgs. 293-296 for an interesting analysis.