A Standard for Impeachable Offenses
Uncovering Republicans’ Best Argument Against Impeachment
When it comes to distinguishing between legitimate and illegitimate grounds for impeachment there tends to be a range of views. The broadest view reflects the Gerald Ford quote that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” The strictest view claims that impeachment must be based on a crime. Democrats, likely due to their opposition to the president, adopt broader views while Republicans, likely due to their support of the president, adopt stricter ones; however, neither side adopts either of the extreme views.
A proper understanding of the actual positions of each side in this debate helps illuminate the central dynamics of partisans talking past each other rather than to each other. In comprehending these dynamics, I predict that the view of what constitutes a legitimate impeachable offense will continue to broaden and, as a result, presidents will be impeached more often.
Although individuals like Sam Berger from the Center for American Progress assert that the president bribed Ukraine, Democrats in the House did not vote to impeach Trump on the charge of bribery. Berger insisted that Trump pressured Ukraine by withholding an influential meeting and military aid until the eastern European country investigated his political rival, former Vice President Biden.
If this claim is true, then it would be the quid pro quo that Democrats need to show that Trump attempted to bribe the executive of Ukraine. Yet, instead of an article of impeachment accusing the president of “Bribery,” the Democrats impeached him for “Abuse of Power” and “Obstruction of Congress.” In this way, “Democrats are attempting to impeach him without connecting him directly to the quid pro quo.” According to political reporter Aaron Blake, “[t]he Democrats’ worry appears to be that [impeaching Trump with bribery] would then put them in the position of satisfying the statutory requirements of bribery, which is a valid concern.”
Bribery requires proof that Trump asked for an exchange of things (investigation in return for the meeting and the military aid). Abuse of power only requires proof of the asking, not the exchange. In reducing the kind of offense from bribery to abuse of power, Democrats have lowered the standard for impeaching the president.
An oversimplified description of the Republican argument against impeachment is that they embrace the strictest view of legitimate impeachable offenses as it both rationalizes their opposition to Democrats’ removal efforts and legitimizes their past efforts to remove President Clinton from office. “The biggest difference in the Clinton impeachment and this one is that President Clinton committed a crime: perjury,” said Republican Representative Steve Chabot. “This president isn’t even accused of committing a crime.”
But offenses do not have to be crimes to be impeachable, as Gene Healy of the Cato Institute pointed out: “Violations of the federal criminal code is neither necessary nor, in some cases, sufficient to make out a charge of high crimes and misdemeanors.” This still leaves open the question of what standards exist for impeachable offenses. A more nuanced explanation of the Republican argument against impeachment concerns the trepidation over the broad standard that Democrats adopted when they decided to use abuse of power rather than bribery.
The Constitution states that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” (emphasis added). The word “other” in-between “Treason, Bribery” and “high Crimes and Misdemeanors” appears to indicate that the Framers considered treason and bribery to be two kinds of high crimes and misdemeanors and, therefore, that presidents should be impeached for treason, bribery and other offenses of the same kind.
While the term abuse of power, as defined by the Democrats, might be an offense worthy of criticism, it is not the same kind of offense as bribery. Political commentator Ben Shapiro uses a metaphor to compare the Democrats’ shifting of the nature of impeachable offenses to a hypothetical shifting of the nature of first-degree murder:
If you’re gonna charge somebody with first-degree murder, you have to prove intent . . . because first-degree murder is typically thought of as murder with malice aforethought . . . . Let’s say that you didn’t want to [prove malice aforethought], so instead of charging manslaughter, you just said, “You know what, we’re not going to have [malice aforethought] as part of the crime anymore. Now, [if] you kill somebody, [it’s a] strict-liability crime — we’re going to consider it first-degree murder.” You’ve changed the nature of the law.
As Shapiro’s thought experiment reveals, there are different crimes with different standards of proof and punishment and, as a general principle, it does not make sense to ascribe the same punishment to a crime with a lower standard of proof. Yet that is exactly what the House did when they replaced bribery with abuse of power to lower the standard for impeachment.
Recognizing this more nuanced — and more accurate — Republican position regarding the legitimacy of impeachable offenses was not straightforward because no libertarian or liberal I have heard from has engaged with it. At best they dismiss the oversimplified version (that impeachable offenses must be crimes) with well-crafted counter-arguments and at worst they constantly refer to the president’s absurd claim that his impeachment is an attempted coup. However, this ignorance of the more sophisticated Republican position is not entirely their fault.
Republicans have harmed their cause by failing to focus their message on the best argument they have. My realization of how difficult it is to properly understand both sides of the issue has revealed that such difficulty is a result of partisans talking past each other rather than attempting to engage their ideological opponents on the merits of their best arguments.
This kind of environment is a likely factor that led Democrats to adopt broader views regarding impeachable offenses without much consideration. Unless the environment changes, broader views of impeachable offenses will be adopted leading to the impeachment of more presidents more often.
