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Thu Nov 14, 2019, 08:36 PM

There's Never Going to Be a Clear Standard for Impeachable Offenses

It’s tempting to think of the impeachable offense as a static construct. Either the president did a bad thing, or he didn’t. Either it was sufficiently bad as to be impeachable, or it was not.

But this can’t be correct, either as a matter of common sense or as a matter of constitutional law. As House Democrats roll forward with public impeachment hearings, and as Senate Republicans build out their defense strategy, careful onlookers will come to find that the president’s conduct isn’t a subject that can be studied in isolation. Congress’s past and present behavior, too, shape the standard of what qualifies as an impeachable offense.

Article II, Section 4 of the Constitution provides the bare silhouette of the impeachable offense: “Treason, Bribery, or other high Crimes and Misdemeanors.” Congress is tasked with filling in that blurry shape. Congress can do this in two ways. The obvious way is by vote. This is what then-Congressman Gerald Ford was getting at when, in 1970, he famously defined the impeachable defense as “whatever a majority of the House of Representatives considers it to be.” As a procedural matter, at least, this is true. By voting, the House throws its weight behind a particular understanding of the impeachable offense. After impeachment, the Senate can then reinforce that judgment by voting to convict and remove the president by the required two-thirds supermajority, or not.

But a second, more quotidian process unfolds outside of and apart from the impeachment process. In its day-to-day work, every time Congress excuses or endorses executive conduct, even implicitly by not taking action, Congress makes it that much more difficult—and constitutionally questionable—to turn around and impeach a president for it or similar conduct in the future.


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