Who said the Senate should be able to remove the president whenever they didn’t like how he was governing?
The Founding Fathers — nearly. James Madison had to drag them back from setting the bar for presidential impeachment at “maladministration,” which he said was so vague “it will be equivalent to tenure during pleasure of the Senate.”
Who suggested that, since the president’s “loss of capacity might be fatal to the Republic,” the president should be removed at the first sign of senility or derangement? Madison!
Who claimed, “An impeachable offense is whatever a majority of the House of Representatives considers it to be”? Gerald Ford, the Republican leader in the House, when he was trying to impeach a Supreme Court justice for being on the side of lewd pop music.
As we all know — at least at this moment, the phrase rings in our ears from every screen— the Constitutional Convention settled on this formula for impeachment: Any federal officer should be removed if guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”
Clearly, the phrase isn’t precise. It wasn’t meant to be. It’s a verbal shrug, a set phrase inherited from England. Whenever the House of Commons impeaches someone before the House of Lords, that’s what they say. In 1450, the prime minister, the Duke of Suffolk, was impeached for “high Crimes and Misdemeanors,” meaning cronyism and losing the war in France. In 2004, when a cross-party group of members of Parliament tried to impeach Prime Minister Tony Blair for fibbing to Parliament about launching the war in Iraq, they used the same inevitable formula, “high Crimes and Misdemeanors,” to hurry things along.
The phrase is a stylized bit of parliamentary jargon. “High” doesn’t mean “extreme “ or “exorbitant”: a “high crime” is bad use of high office. You and I can vandalize cars or expose ourselves on the Metro, but we’d have to hold high office to commit governmental wickedness. “Misdemeanor” is just pretend-Latin for “bad behavior.”
So who decides what amounts to a misdeed? Ford’s definition, “Whatever a majority of the House considers at a given moment in history,” is realistic, refreshingly cynical, and introduces a word missing from most commentary on the present hoo-hah: history.
Viewed as a contest between Democrats and Republicans, the struggle over impeaching Trump is sterile and boring. We all know within a vote or two how it’ll work out, and although both legal teams have to pretend to be outraged at each other’s malice and shocked (shocked!) about duplicity in the face of yadda-yadda, the clamor only shows how politics have hollowed out. These performances are designed to produce television soundbites and to poison the temper of the political bases come November. Viewed as a partisan battle, it’s unreal.
But if we take a longer view, this week’s events continue the historical struggle between legislature and executive. That struggle began eight centuries before this republic, back when the English head of state was King John, and is sure to run on into the future.
One day there will be a Democratic White House and a Republican Congress, and the two parties will again have swapped their positions on impeachment. The Democrats will again be asserting, as Clinton’s counsel did in 1999, and as Trump’s team is suggesting now, that “high Crimes and Misdemeanors” is an “extraordinarily high level,” implying “offenses that have subverted our system of government.” The Republicans will be arguing, as the House managers are arguing now, as Ken Starr urged against Clinton, that any dishonesty is a crime, if under oath, and thus an assault on justice.
The Starr of 2020 calls Trump’s impeachment an outrageously “extravagant” fraud since, whatever his abuse of power, “we have not seen proof that a crime has been committed.” It’ll be a nice symmetry if Starr leads the next Republican impeachment of a Democratic president, reversing all his 2020 arguments and reiterating his 1999 ones, thus demonstrating that the contest is between two branches of government.
Which is why Trump’s trial is not mere spectacle.
The impeachment of Andrew Johnson, although it ended in acquittal, changed the nature of the republic. Congress had risen up against the power of the White House, which had grown mightily during the Civil War. For the next three decades, presidents were forgettable men. The great questions of the day (currency reform, homesteading, land-grant education, isolationism) were largely fought out on Capitol Hill. Teddy Roosevelt exalted the White House once more, and Congress acquired the habit of deferring. A Democratic House wouldn’t impeach Herbert Hoover for economic incompetence in 1931. The near-impeachment of Nixon weakened “the imperial presidency,” a trend not reversed until President Ronald Reagan. Reagan’s prestige was such that the Democratic House shrank from impeaching him over the Iran-Contra affair in 1986, and President George W. Bush over the Iraq weapons debacle in 2007.
Now the legislature has nerved itself for another attack on the executive, and we shouldn’t get hung up over whether what John Bolton memorably called a “drug deal” with Ukraine was “high Crimes or Misdemeanors.” Expensive lawyers are being paid to shout about that. Our business is to watch the unwritten rules of politics change. That’s the historical issue. This republic is, for the moment, becoming less of an elective monarchy and more of a parliamentary system.
Richard Major is a novelist living in Virginia. His eighth novel, Piracies, was published in January. His website is www.RichardMajor.com.
