Elizabeth Drew

Opinion contributor

The tactics some Republicans are using to defend President Donald Trump against being impeached (or indicted) by the House and convicted (or removed from office) by the Senate include confusing the public about what these terms mean. One thrust is to suggest that for a president to be impeached, he must have committed a crime.

For example, Sen. Lindsey Graham, R-S.C., perhaps Trump’s most vocal defender on Capitol Hill, indicated his supposed openness to impeachment with this statement: “Sure. I mean, show me something that is a crime.” Graham, a former Air Force lawyer who is now chairman of the Senate Judiciary Committee, surely knows better. His disingenuous statement was drastically misleading about the meaning of impeachment.

Reining in a president

Graham’s definition of impeachment as necessarily involving a crime goes against the history of the Constitution's impeachment clause and undermines the very point of the exercise, which is to hold a president accountable for abuses of power between elections. A crime might be involved, but the critical point is that an abuse of power need not be a crime.

Not all crimes are impeachable offenses, and not all impeachable offenses are crimes. An abuse of power occurs when a president reaches beyond the understood limits on his governing, or violates the constitutional requirement that the president “take care that the laws be faithfully executed."

For example, when President Richard Nixon used the Internal Revenue Service to harass his perceived enemies, he was abusing his power, and this became part of one of the charges against him (Article II) in the articles of impeachment drawn up against him by the House Judiciary Committee in 1974. Significantly, Article II also held a president accountable for the acts of his aides.

In an act that invites more scrutiny, Trump intervened in a recent Pentagon decision to try to make sure it didn’t award a highly sought $10 billion cloud computing contract to Amazon, as part of his vendetta against Amazon chief Jeff Bezos, who also owns The Washington Post. In taking the vengeful step of interfering in a government contract decision to punish a business he despises, the president undoubtedly committed an impeachable offense.

The Founders believed that there must be a way for the public, through its elected representatives, to keep a rein on a president throughout his term of office; that the very purpose of creating a presidency was to avoid establishing in power someone who would be beyond reach until the next election, like a king. As they drafted the Constitution in Philadelphia in 1787, the Founders added to Article II, which governs the presidency, a section that said, “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, and other high crimes and misdemeanors.”

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The vagueness of these terms has perplexed scholars and political practitioners over the years, but the Founders left enough guidance to make it clear that an impeachable or convictable offense need not be a crime.

According to Raoul Berger, author of “Impeachment: The Constitutional Problems,” one of the first authoritative books on impeachment (which caused a run on stores when it came out in the fall of 1973, when the possibility of impeaching Nixon became a live topic), the Founders lifted the wording of the impeachment clause from English law, which provided a way of punishing a king’s ministers, an indirect way of denying a king absolute power.

'Abuse or violation' of public trust

As it happened, while the Founders were drafting the Constitution, the English House of Commons (on which our House of Representatives was modeled) was considering the impeachment of Warren Hastings, a former governor general of British India. The statesman Edmund Burke, opening the proceedings, said: “It is by this tribunal that statesmen who abuse their power are accused by statesmen, and tried by statesmen, not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality.”

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Alexander Hamilton offered probably the best explanation of the impeachment provision in Federalist 65, one of the papers that he, James Madison and John Jay wrote after the Constitutional Convention to explain and promote the new experiment. He said the purpose of impeachment was to deal with “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

Nothing in these most authoritative comments suggests that an impeachable offense need be a crime. It’s clear, in fact, that the criteria are much broader. If Graham and other conservatives want to defend the president to the end (it's not clear that all of them do), they need to brush up on their reading and try to find more valid grounds — if they can.

Elizabeth Drew is a Washington journalist and author of “Washington Journal: Reporting Watergate and Richard Nixon’s Downfall.” Follow her on Twitter: @ElizabethDrewOH