In the coming days, opinions sections and cable news shows will be inundated with discussion about whether President Trump’s attempt to pressure the Ukrainian president, Volodymyr Zelenskiy, into investigating Joe Biden’s role in a supposed conspiracy was a criminal act. However, the answer to this question alone does not tell us whether Trump should be impeached. The constitutional standard of impeachment – “high crimes and misdemeanors” – is not a legal one. Rather, an impeachable offense occurs when a president violates the oath to abide by the constitution’s limits and respect its values. Trump’s use of political pressure on a foreign power to further his own re-election chances clearly fits.

For Trump’s actions to merit impeachment, he need not have attempted to engage in a quid pro quo with Zelenskiy. The released transcript clearly shows the chief executive of the United States pressuring a foreign government to criminally investigate his political opponent. That alone is impeachable. To “faithfully execute” the law, as Article II demands of the president, requires enforcing the law impartially, as a tool for equal justice, not personal gain. This behavior alone, clearly evidenced by the transcript, is an impeachable offense because it is an egregious flouting of the oath of office.

Impeach Trump? The United States is now in uncharted waters | Geoffrey Kabaservice Read more

Those who wish to wait for a criminal inquiry before starting impeachment proceedings would do well to open an introductory law school casebook. “High crimes and misdemeanors” is a category found nowhere in criminal law. The framers meant something broader: a demeaning or undermining of the office. High crimes are actions that abuse the public’s trust in the president. Of course, legal crimes can also be high crimes; stealing money from the public treasury is both illegal and impeachable. But a president does not need to break the law to commit a high crime.

Nor does a successful impeachment require evidence “beyond a reasonable doubt” that a high crime was committed. No judge rules on permissible evidence during an impeachment inquiry or trial, nor can the judiciary overturn any eventual ruling. It is solely up to the individual consciences of the representatives and senators to decide whether Trump’s actions sufficiently debase the obligations of the oath of office to warrant removal. The revelations of Trump’s Ukraine dealings make clear their votes should be yes.

However, it’s not only Trump’s Ukraine dealings that warrant impeachment. The House Speaker, Nancy Pelosi, is reportedly considering focusing the impeachment inquiry only on Ukraine and barring discussion of other topics. That would be a mistake – a missed opportunity to educate the public about Trump’s broader myriad violations of his oath, from his efforts to obstruct justice as detailed in the Mueller report, to profiting from official business hosted at his properties, to equating white supremacists with law-abiding Americans.

Declaring these failures of office irrelevant would replicate Congress’s failure in the impeachment of President Andrew Johnson in 1868. Then, Congress resented Johnson’s abject refusal to enforce civil rights legislation after the civil war. But instead of impeaching him for that, they took a legalistic route, citing his firing of secretary of state Edwin Stanton in violation of the Tenure of Office Act. Ultimately, Johnson was acquitted by one vote in the Senate. History largely remembers the impeachment as an unjustified partisan trial.

Facebook Twitter Pinterest President Andrew Johnson, pictured circa 1865, was acquitted by one vote after being impeached in 1868. Photograph: Buyenlarge/Getty Images

The Congress of Johnson’s era failed to remove a president who clearly merited removal for allowing his racism to interfere with his presidential responsibility to enforce the law. Some commentators at the time pointed to another way forward. In an article for the Atlantic Monthly, Frederick Douglass called Johnson “treacherous,” saying his failure as president was rejecting equality, not transgressing a minor statute. Today we must follow Douglass’s advice and eschew narrow legalistic categories, viewing the oath and its duty to “faithfully execute the law” as embedded within the constitution’s deeper values.

A risk exists that a more moralized impeachment inquiry could quickly turn partisan. That, too, would debase the constitutional process. Impeachment is supposed to be a last remedy for guarding democracy from a president who refuses to respect its norms. An inquiry done right will educate the American people about the meaning of impeachment and encourage them to consider whether Trump’s actions are consistent with the high duties of the presidency. If more Americans hear about – in measured, nonpartisan terms – the myriad ways Trump has exploited the public trust, they can possibly be persuaded to change their minds, making it more likely that the House and Senate have the courage to impeach and eventually remove the president.

There are two primary ways that an impeachment inquiry can build public awareness of and respect for constitutional norms, setting the stage for an eventual removal for Trump’s high crimes. Both center around an explicit focus on constitutional language.

First, members of Congress should speak in plain language, directly referencing constitutional provisions they believe Trump has violated and avoiding legalistic jargon that make the hearings resemble an inaccessible court trial.

Second, they must not drag in political differences with the president. Democrats might not like Trump’s economic record, for example, but that is not what is on “trial”. Only fundamental threats to our system of government should come into play. In 1974, the Republican congressman Robert McClory, who sat on the house judiciary committee, tasked with making a recommendation on the impeachment of Richard Nixon, argued that Congress should use its impeachment “proceedings as a guide for future presidents”. Its job was to “speak in terms of the constitution and specifically in terms of the president’s oath and his obligations under the constitution”.

Facebook Twitter Pinterest Richard Nixon, after leaving the White House, following his resignation over the Watergate scandal, 9 August 1974. Photograph: Bill Pierce/Time & Life Pictures/Getty Image

His words mattered. McClory was one of a key group of Republicans who made the difference in getting Nixon to resign under the looming and credible threat of impeachment, a victory for the dignity of the office. Initially, the American people and congressional Republicans resisted calls for his removal. Eventually that resistance subsided. Congress members then sought to convince the American people of the clear constitutional argument that the president was unfit for office – an argument that Americans of all parties could support, given its emphasis on the rule of law, not political partisanship.

Nixon’s case is instructive in this era of Trump. Part of the case against Nixon was about his role in the unlawful break-in and cover-up at the Watergate hotel. But Congress also drew up articles of impeachment that criticized his obstruction of justice, abuse of power, failure to execute the law impartially, and defiance of subpoenas – all actions that undermined the office’s ideals of constitutional democracy, even if they were not criminal violations. There, instruction about the constitutional responsibilities of the president helped to turn public opinion.

Trump's phone call with Ukraine's president: read the full memorandum Read more

We should take the same path in Trump’s case. Public opinion is not fixed and can be moved with the right approach, as it was during Nixon’s impeachment hearings, moving from 19% approval of impeachment to 50% from early 1973 to summer 1974. An inquiry can be useful in determining whether Trump committed crimes in seeking an investigation of Biden and his son, and a positive finding on that question obviously adds to the gravity of his wrongdoing. But Congress should also draw the public’s attention to Trump’s fundamental failures to uphold his constitutional responsibilities as president. The inquiry cannot just be limited to criminal harms.

Pelosi and the Democrats have seized a historic moment, fulfilling their constitutional duty to consider impeaching a president who has violated his oath. They deserve praise for finally putting aside the electoral considerations that have made them drag their feet and hold their noses for months. Now comes the even harder job: building a case for impeachment that a deeply divided American public can appreciate and understand. Fortunately, their blueprint comes from the same document Trump violated. Only by turning to the constitution will Congress be able to hold the president accountable and restore the rule of law to American democracy. Nixon’s Congress sent future generations a message about the president’s accountability to the people and the law. Now, we must heed that call to protect our democracy for future generations.

Corey Brettschneider is the author of The Oath and the Office: A Guide to the Constitution for Future Presidents



