Yoni Appelbaum: Impeach Donald Trump

Even some of Trump’s critics entertain the same erroneous notion. The New York Times columnist Bret Stephens has repeatedly intimated that, to him, “high crimes and misdemeanors” requires ordinary criminality. He recently wrote, “I struggle to see exactly what criminal statute Trump violated with the [Ukraine] call.”

Those most eager to impeach this president may know their Constitution better, but they recognize that crimes are just easier to explain than old Anglo-American legal jargon. So some are tempted to scour the criminal code for a subsection into which one or the other of Trump’s misadventures can be wedged. The most recent example is the vociferous but ultimately pointless argument over whether opposition research—dirt—on a political opponent is a “thing of value” for purposes of federal election laws.

There are two strong arguments against the idea that the phrase requires criminal behavior: a historical one and a practical one. The history of the phrase “high crimes and misdemeanors” and of how it entered our Constitution establishes beyond serious dispute that it extends far beyond mere criminal conduct. The practical reasoning is in some ways more important: A standard that permitted the removal of presidents only for indictable crimes would leave the nation defenseless against the most dangerous kinds of presidential behavior.

Let’s start with the history. The British Parliament invented impeachment in 1376, primarily as a legislative counterweight against royal abuses of power. Parliament couldn’t impeach kings and queens, and couldn’t get rid of them at all without an inconvenient and probably bloody revolution. So on occasions when the nobility wasn’t willing to strap on the old chain mail and gather its trusty men-at-arms to have a go at the king’s head, Parliament—acting on the maxim “Personnel is policy”—struck at the Crown by removing the monarch’s most powerful ministers through impeachment or, sometimes, bills of attainder.

Great Britain has never had a written constitution. And Parliament has never sat down to write an impeachment statute with a neat definition of the behavior that could get a royal minister impeached. Rather, Parliament has carefully kept impeachment open-ended, recognizing that one never knew in advance what form the royal urge to autocracy might take or what sort of devilry corrupt or ambitious officials might be up to. Over the centuries, Parliament impeached a good many people for a wide variety of misconduct. When it did, the articles of impeachment tended to describe the defendant’s behavior as “high crimes and misdemeanors,” a usage that dates back to 1386. Critically, a great deal of the misconduct Parliament deemed impeachable wasn’t criminal at all, at least in the sense of violating any preexisting criminal statute or constituting any judge-created common-law crime.