“Now wait a minute!” some of you are thinking. “The Constitution sets forth the standard for impeachment.” And so it does: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

If Trump is legally able to terminate a special counsel, or to instruct a subordinate to do so (the decision belongs to Rod Rosenstein, the deputy attorney general), how could that action, right or wrong, constitute a high crime or misdemeanor?

The answer requires an exploration of what “high crimes and Misdemeanors” even means; of the investigation that Robert Mueller is heading up; of why firing the special counsel might be a red line for Congress; and of why this should be the final straw even for ardent Trump supporters.

I don’t say that lightly. To impeach a president is undesirable. But to keep him would be too risky. To trust him would be too reckless. Prudence would require his removal.

High Crimes and Misdemeanors

There are phrases in the Constitution, like the one calling on Congress to make all Laws which shall be “necessary and proper” for “carrying into execution” its enumerated powers, or the prohibition against “cruel and unusual punishment,” that demand a degree of judgment and interpretation from all who endeavor to respect them.

High crimes and misdemeanors is one of those phrases.

As the Heritage Foundation notes, “Because ‘high Crimes and Misdemeanors’ was a term of art used in English impeachments, a plausible reading supported by many scholars is that the grounds for impeachment can be not only the defined crimes of treason and bribery, but also other criminal or even noncriminal behavior amounting to a serious dereliction of duty.” Andrew McCarthy, a former federal prosecutor who voted for Trump and wrote a book about the case for impeaching President Obama, explained matters further in a recent National Review column:

Nothing caused the Framers greater anxiety than the new office they were creating … They were rightly convinced of the need in a dangerous world for an energetic executive able to act swiftly and decisively in times of crisis. But, being close students of human nature, they were equally worried that the enormous powers attendant to the office could be abused, that they could fall into the hands of an unfit incumbent, or that they could come under the influence of foreign powers. They thus gave Congress a dispositive check: the power of impeachment and removal. Impeachment, not criminal prosecution, is our Constitution’s response to egregious executive malfeasance. Thus, the critical part: The standard for impeachment, the commission of “high crimes and misdemeanors,” is not concerned with criminal offenses found in the penal statute books and suitable for courtroom prosecution. It relates instead to the president’s high fiduciary duty to the American people and allegiance to our system of government.

He goes on to quote Federalist No. 65, which notes that impeachable offenses “are those Which proceed from the misconduct of public men, or in other words 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.” With all that in mind, the question before the House in determining whether Donald Trump’s behavior warrants impeachment is whether he is guilty of serious dereliction of duty, public misconduct, abusing our trust, or injury to American society; or whether he is meeting his high fiduciary duty to the people and to the American system of government. Firing Robert Mueller would cross all those thresholds.