THE HOUSE HAS A DUTY TO IMPEACH AN ERRING PRESIDENT

Suppose that within the next few months, it becomes clear that President Donald Trump has committed impeachable offences. Does the House of Representatives have discretion to decide whether to imp each him? or does the constitution require it to do so?

The simplest answer, and the best, is that the Constitution requires the House to do so. To avoid political bias, let’s bracket all questions associated with President Trump, put current events to one side, and assume that some future president commits (in the words of the Constitution) “Treason, Bribery, or other high crimes and misdemeanors .” imagine that he has betrayed his country, in a way that constitutes treason, or that he has killed or imprisoned journalists and political enemies (clearly a high crime and misdemeanor, and so an impeachable offence).

The Constitution says that the House of Representatives “shall have the sole Power of Impeachment,” and that the Senate “shall have the sole Power to try all Impeachments.” In light of the historical background, use of these powers is best regarded as mandatory rather than optional, at least when a president has clearly committed impeachable offences. To the founding generation, the impeachment provisions were essential parts of the Constitution. As Virginia’s George Mason put it at the Constitutional Convention, “No point is of more importance than that the right of impeachment should be continued.” (It is worth pausing over that sentence.)

The power of impeachment was designed to ensure that our system would be one of self-government. It gave We the People an ultimate weapon in the event that the president violated the principles embodied in the Declaration of Independence: “A Prince, whose character is marked by every act which may DEINE A Tyrant, Is unit to BE THE ruler of a free people.”

For this reason, it is wrong to say, as many now do, that the Constitution makes impeachment a political question rather than one of law. On the contrary, the Constitution sets out a legal standard, which establishes a very high bar, and which forbids impeachment on purely political grounds. At the same time, THE Constitution speciies what HAS to happen if the constitutional standard is clearly met.

Suppose that the House of Representatives were entitled to respond to impeachable offences with a kind of shrug, or with the thought, “he’s doing a great job, so we’ll let it pass,” or with the admission, “sure, he’s a bum, but he’s our bum.” That would make a mockery of the constitutional plan. It would allow the project of self-government to collapse.

It Is EXCEEDINGLY Dificult to READ THE founding-era debates about impeachment – during the Constitutional Convention AND THE ratiication DEBATES – without concluding that if the president has clearly committed an impeachable offence, the House has a constitutional duty to impeach him.

Some people reject this conclusion. In an impressively detailed and highly illuminating book, Laurence Tribe and Joshua Matz invoke the analogy of the criminal prosecutor. Tribe and Matz rightly note that criminal prosecutors are entitled to exercise discretion. Even if a criminal offence has been committed, prosecutors are allowed to conclude that all things considered, criminal prosecution would not be a good idea.

Tribe and Matz make a plausible argument, but their analogy doesn’t work. Faced with limited budgets and many potential targets, prosecutors must exercise their judgment in order to ensure that the awesome power of the criminal law is used appropriately. Its constitutional obligation is to protect We the People. It is not entitled to look the other way.