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With the coming impeachment vote in the House and a possible trial in the Senate, the U.S. has reached a rare defining moment.
Toward the start of the Federalist No. 1, Alexander Hamilton wrote some of the most memorable words in his prolific career:
It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.
In the Federalist No. 65, Hamilton explained that impeachment is designed for offenses proceeding “from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
That explanation was designed to assure We the People that their president, repository of the executive power, would not be a king. The founders rejected the idea that a limited four-year term and the need for re-election are adequate safeguards against the rise of a kind of elected monarch.
In the founding era, the phrase “high crimes and misdemeanors” had a concrete meaning. It referred to egregious abuses of authority, whether or not they amounted to violations of the criminal law.
At the Constitutional Convention, George Mason asked: “Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice? . . . Shall the man who has practiced corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”
In the crucial Virginia ratifying convention, James Madison made it clear that an abuse of the pardon power would be impeachable. Madison also said that the president would be impeachable if he “violated the interest of the nation.” More specifically, he emphasized that if the president sought to secure ratification of a treaty by summoning a small number of states, and thus injured other, unrepresented states, “he would be impeached and convicted, as a majority of states would be affected by his misdemeanor.”
The example reflects a broader principle: If the president is working with another nation in a way that harms the United States, he is committing a “misdemeanor,” even if no violation of the criminal law is involved.
At the North Carolina ratifying convention, James Iredell said that the “president must certainly be impeachable for giving false information to the Senate.”
He added that “it is his duty to impart to the Senate every material intelligence he receives” and suggested that he would be impeached “[if] it should appear that he has not given them full information, but has concealed important intelligence which he ought to have communicated, and by that means induced them to enter into measures injurious to their country, and which they would not have consented to had the true state of things been disclosed to them.”
In Massachusetts, where the American Revolution began, an influential commentator, writing under the pseudonym of Cassius, described the impeachment power as a means to protect liberty: “Thus we see that no office, however exalted, can protect the miscreant, who dares invade the liberties of his country, or countenance in his crimes the impious villain who sacrilegiously attempts to trample upon the rights of freemen.”
Under the Constitution, impeachment is a matter of law, not politics. (This cannot be repeated too often.) A politically motivated impeachment is lawless. Any president deserves respect and the benefit of the doubt.
It is important to emphasize that under the constitutional plan, an impeachment by the House of Representatives is in the nature of an indictment. It calls for a trial in the Senate. It does not remove the president. The standard for impeachment is unquestionably very high – but not as high as the standard for removal.
As a matter of law, there can be no doubt that if a president used the authority of his office to pressure a foreign government to commence a criminal prosecution of a political opponent, and did so for his own political gain, he would have committed an impeachable offense. Almost everyone now appears to agree with that proposition.
The current evidence suggests that President Donald Trump used the authority of his office to press the president of Ukraine to announce a criminal investigation of American citizens – including a potential political opponent and/or his son. The current evidence suggests that the president made a prized visit to the Oval Office conditional on that announcement, and that he withheld appropriated taxpayer funds from Ukraine, conditional on that announcement. The current evidence suggests that he used the authority of his office to protect not the United States of America, but his own job.
In his response to the investigation, Trump has cast contempt on the House of Representatives, and in that sense on the system of separation of powers. Any president is of course entitled to insist on his constitutional prerogatives, including executive privilege. Any president is entitled to claim that an investigation, including an impeachment inquiry, lacks an adequate justification, or even that it is a “witch hunt.”
But no president is a king. Offering reckless claims about the due process clause and the right to cross-examination, the White House has refused, categorically, to cooperate in any way with the impeachment inquiry. In that respect, it has gone far beyond the actions of the White House under President Richard M. Nixon – actions that supported an article of impeachment in 1974.
Are societies of men and women really capable of establishing good government from reflection and choice? Hamilton answered well: “the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made.”
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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Cass R. Sunstein at firstname.lastname@example.org
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