We could blame Kenneth Starr for “manufacturing process crimes,” but the fact of the matter is that Clinton did lie under oath. By this measure, he committed a “high crime” (which is a crime that only people in official positions can commit by virtue of their oaths and duties) only because he was President when he did it. Had he been honest, he would not have committed perjury. The article of impeachment regarding abuse of power regarding Clinton’s relationship with Lewinsky failed when 65% of the House voted against that action as being an impeachable offense.
So, if having an affair while President isn’t an “abuse of power”, and lying under oath to a grand jury in a civil matter isn’t an impeachable offense, than what is? What bar must any of these actions surpass — for a president — to constitute a “high crime and misdemeanor?”
The impeachment of Andrew Johnson is a great example of what impeachment is not meant to be used for. He was effectively impeached for strong political disagreements. If we’re to discuss “manufacturing process crimes”, the impeachment of Johnson was a scene out of a Gothic Opera of sorts. Could you imagine if we impeached every president who did not uphold, or defend in a court of law, a bill that they saw as unconstitutional? Every single president would have had articles drafted against them. But political disagreements aren’t “high crimes” or “misdemeanors.”
To this end, only 18 people have had articles of impeachment drafted against them by Congress, of which 13 are judges, and only 7 were convicted. Impeachment brought on by the Judiciary Committee is exceedingly rare, and precedents have been created. For this reason I struggle to believe that we’re at the precipice of some disaster by which the constitution is corroded. The process by which a person is indicted for a crime requires physical evidence and direct witness testimony. Considering the bar for which indictments must reach in order to secure one, I would imagine that such a bar would even greater for a president. IF a sitting president were to be indicted it would be a big deal, and extremely unlikely to be built off of political ingenuity and disagreements. An indictment against a sitting president would not at all be trivial, either in the political or judicial sense of the word.
As I have said in other responses, this piece isn’t about Trump, or whether he can or should be indicted. Rather, it was meant to address an unsettled constitutional question.
Having said that, I detest judicial elections as this politicizes the judiciary more so than appointments. Moreover, I agree with you in regards to your last question. This is why I disagreed with almost every threat that both Schumer and McConnell have made with respect to corrosion of Senate rules. What goes around comes around.
