According to the long-held conventional view, in a crucial moment during the convention, George Mason of Virginia stated that treason and bribery by themselves weren’t broad-enough grounds for impeachment. He then proposed adding the offense of “maladministration.” But James Madison pushed back, arguing in essence that this would amount to removal by a vote of no confidence, thus creating a parliamentary system rather than one based on separation of powers. “So vague a term,” he observed, “will be equivalent to a tenure during pleasure of the Senate.” In response, Mason withdrew “maladministration” and substituted the now-celebrated phrase other high crimes and misdemeanors.

The historian and Madison scholar Mary Sarah Bilder has argued that this passage of Madison’s notes was likely not a contemporaneous record of his, and that Americans place too much weight on it when trying to understand what the Founders had in mind as impeachable offenses when they added “other high crimes and misdemeanors.” Nevertheless, the phrase was a term of art in English law, dating at least as far back as 1642, and it likely didn’t permit Parliament—and thus presumably Congress—to impeach and convict for actions that weren’t already known, at the time of the act in question, to be offenses. Moreover, before the maladministration discussion—if it took place as Madison recollected—the Founders had already considered and ultimately rejected language that would have had “malpractice or neglect of duty” as the standard for impeachment. Whatever precisely transpired at the convention, one thing is clear: “Other high crimes and misdemeanors” is a standard more restrictive than a mere no-confidence vote.

Rob Goodman: Why the Founders added ‘high crimes and misdemeanors’

Some have disagreed with this conclusion. The most famous statement to the contrary is that of then-Representative Gerald Ford. “An impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history,” he declared. “Conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” More recently, but well before Ukrainegate, Representative Maxine Waters has channeled Ford on this subject. “Impeachment is about whatever the Congress says it is,” she proclaimed in 2017. “There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors’ and we define that.”

If impeachment isn’t subject to judicial review—and so far the Supreme Court has held that it isn’t—then Ford and Waters may be right as a matter of raw power, but not as a matter of constitutional principle. If the history of impeachment and the Philadelphia debate are to influence the current proceedings, then the president cannot be impeached, or at any rate removed, for maladministration or at least negligent administration. Nevertheless, perhaps he can be removed for abuse of power. What the Judiciary Committee should have been asking, and what the experts should have been dispassionately analyzing, is whether, and how, abuse of power differs from maladministration or negligence.