Since I write often about the Constitution, I regularly get emails from readers asking me to explain certain aspects of that document, and with the Mueller report now made public, I have been inundated with emails asking me if Trump will be impeached. The answer is: It depends on the American people, because the Founding Fathers wanted impeachment to be settled politically.
In Federalist #65 Alexander Hamilton wrote that since presidents engaging in misconduct is “an abuse or violation of some public trust,” the public, the people – through the government’s most political branch, the Legislature (Congress), not the Judiciary – should determine whether that warrants removing them from office.
Also, the Constitution says presidents may be impeached for bribery, treason and “high Crimes and Misdemeanors.” Bribery and treason are specific crimes, but Congress can define “high Crimes and Misdemeanors” however it wants, including politically. Therefore, it can impeach a president for something that isn’t a crime. Among the articles of impeachment leveled against President Andrew Johnson was his attempt “to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States … ,” which sounds to me more political than legal. Basically, Congress wanted to impeach Johnson for the high crime and misdemeanor of bad-mouthing Congress!
And while Mueller’s report does not find Trump provably guilty of any crimes, it paints a plausible picture of Trump attempting to thwart the investigation, which, legalities aside, Congress can define as a high crime or misdemeanor and begin impeachment proceedings. But, again, impeachment being a political act, the American people will make the ultimate judgment, because members of Congress will vote for or against impeachment depending on how their constituents feel about it.
The attempt to impeach President Clinton is instructive. He was accused of two actual crimes, perjury and obstructing justice by attempting to cover up his affair with Monica Lewinsky. Had the Judiciary overseen impeachment, Clinton almost certainly would have been removed from office. But after the Republican-controlled House voted to impeach (indict), the Democratic-controlled Senate refused to convict. Today Democrats control the House, but Republicans control the Senate, and it’s unlikely they will vote to remove the head of their party.
But regardless of party affiliation or control, in the end the American people did not think attempting to cover up a sexual dalliance with a White House intern rose to the level of “high crimes and misdemeanors,” and my guess is they won’t think Trump’s actions, as outlined in the Mueller report, rose to that level, either.
Another way the American people make the ultimate judgment is a presidential election, and there is one coming up soon.
Bruce G. Kauffmann’s email address is firstname.lastname@example.org.