What impeachment is and isn’t

Whenever a President’s political opponents despise his policies, they are tempted to start talking about impeachment. That’s certainly true today, with increasing calls, on the part of President Trump’s harshest critics, for taking the impeachment process seriously.

Whether Americans like Trump or loathe him, they need to understand what that process is all about. It’s a crucial part of the constitutional plan.

Those who lived through the American Revolution rejected the idea of a monarchy. Without the power of impeachment, it’s doubtful that We the People would have ratified the Constitution at all.

Here are the three biggest misconceptions about impeachment:

Misconception 1: When a President is impeached, he has to leave office.

Under the Constitution, the House of Representatives has the sole power of impeachment. It can impeach the President by a majority vote.

But even if it does so, the President can continue to serve. An impeachment vote merely shifts the issue to the Senate, which then conducts a trial.

The Senate acts very much like a court, with the power to “convict.” It is only upon conviction that the President is removed from office.

In the Senate, the barrier to conviction is high: It must occur by a two-thirds vote. Because members of the President’s party are usually loyal to him, conviction is highly unlikely — and indeed, no President has been convicted in the nation’s history. (President Richard Nixon resigned voluntarily.)

Misconception 2: Impeachment is a thoroughly political act, and the House of Representatives is authorized to impeach a President whenever it sees fit.

The Constitution allows impeachment of the President, the vice president, federal judges and other officials only for “Treason, Bribery, or other high Crimes and Misdemeanors.” That’s a legal test. It was specifically designed to restrict the grounds for impeachment — and to limit the power of the House of Representatives.

In the debates in the founding era, some people argued in favor of broader grounds for impeachment, such as “maladministration” or “neglect of duty.” Their argument was rejected.

Treason and bribery are well-defined terms. “High Crimes and Misdemeanors” is less clear, but as Alexander Hamilton explained, the phrase refers to “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.”

As Hamilton’s comments suggest, what is needed is an abuse or misuse of presidential power. In the debates over ratifying the Constitution, influential commentators gave examples, including abuses of the pardon power and violations of civil liberties.

It follows that the House cannot impeach the President simply because it dislikes him and his policies, or thinks that he is doing an awful job. It has to identify some particular action, or set of actions, that amount to an abuse of authority.

Misconception 3: A President can be impeached if and only if he has committed a crime.

For modern readers, it is natural to think that “high Crimes and Misdemeanors” refer to violations of the criminal law. On that view, whether a President is impeachable turns on an answer to a simple question: Did the commander-inchief violate the law?

But that’s not the right question! If a President drives while drunk or fails to file his taxes on time, he hasn’t committed an impeachable offense. Under the Constitution, we need to know whether he has abused or misused his authority as President — and many crimes just don’t meet that standard.

At the same time, a President could be impeached for plenty of things that do not violate the criminal law.

Spending a year on vacation in Moscow wouldn’t be a crime, but it would be a horrendous abuse of public trust, and a legitimate basis for impeachment. Using the apparatus of the federal government — the FBI, the CIA — to harass one’s political enemies would be an impeachable offense, whether or not it amounted to a criminal violation. Impeachment was not designed as a political tool to be used by those who lost an election, or who disagree vociferously with policy choices made in the Oval Office. For those who fought a revolution and defeated a king, it was understood as a crucial weapon of self-government.

It reminds We the People, and all those who are privileged to lead us, that in the end, we’re the boss.