What conduct will render a U.S. president liable to impeachment? Article II of the Constitution answers that question. "The president ... shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."

So, what constitutes a high crime? A misdemeanor? The phrase has its origins in medieval English impeachment law. (England last used impeachment in 1808. It is now deemed obsolete.)

But in 1970, Republican Rep. Gerald Ford defined an impeachable offense as “whatever a majority of the House of Representatives” would vote for. If impeachment is strictly a political question, Ford was absolutely correct.

But if that is what the Constitution means, why didn't the men who wrote it simply write, "a president serves at the pleasure of the House and Senate?"

Impeachment was taken up on three different occasions during the 1787 Constitutional Convention. On June 2, Roger Sherman said "the National Legislature should have power to remove the Executive at pleasure."

George Mason agreed that Congress should have power to impeach, but opposed "removal at pleasure," as "making the executive the mere creature of the Legislature."

On July 20, they focused on whether the executive should or should not be "impeachable while in office." Gouverneur Morris argued, no, it was enough that his accomplices might be punished. George Mason disagreed: "Shall any man be above justice?"

James Madison argued impeachment was indispensable to "defend the community against incapacity, negligence, perfidy or oppression. He might betray his trust to foreign powers." Charles Pinkney did not see "the necessity of impeachments." Pinkney feared the legislature would hold it "as a rod over the executive and ... destroy his independence."

Rufus King thought impeachment of the eecutive unnecessary, as the electors could remove him at the next election. Morris switched sides. He now argued the executive should also be impeachable for bribery, "treachery; corrupting his electors, and incapacity," as well as abuse of  office.

On Sept 8, Mason argued that impeachment for treason and bribery alone was inadequate to reach many other "great and dangerous offenses." He suggested adding :"maladministration." Madison objected that the term was so vague as to be equivalent to "at the pleasure of the Senate." Mason then substituted the words "high crimes and misdemeanors."

This substitution was clearly to make impeachment more criminal than political. Yet everybody understood that impeachment could easily become entirely political.

In Federalist Paper 65, Alexander Hamilton set forth his understanding of what constituted an impeachable offense: "those offenses which proceed from the misconduct of public men ... from the abuse or violation of some public trust." Hamilton, however, clearly understood that impeachment could devolve into a political question of partisan politics.

Impeachments, he wrote, "are of a nature ... POLITICAL ... The prosecution of them ... will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other ... there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

A related question: Can a president can be impeached for things done only while in office? Can he also be impeached for things he did before he was elected?

Only Mason discussed that question: "Shall the man who has practiced corruption and by that means procured his appointment ... be suffered to escape punishment?" Nobody suggested that a president might be impeached for pre-election adultery, or groping a woman at a teenage beer party.

A second related question: Can a president be impeached for things that he did prior to his election that were essentially known to the voters before they elected him, e.g., if he refused to disclose his tax returns and the voters elect him anyway?

In America, since all men are presumed innocent, and since refusing to publicize one's tax returns is not a criminal offense, the answer should be, no.

Senators should say. We cannot find a high crime or misdemeanor has been committed."  But politically, if Democrats find 67 votes in the Senate, the answer is, yes. In a Senate trial for impeachment, the Senate is the judge of the law and the facts.

The sole safeguards against political abuse are the requirement of 67 votes, and the president's popularity with the American people.

John Donald O'Shea of Moline is a retired circuit court judge.


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