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Yes #TreasonSummit, There’s Legal Basis For Impeaching Trump Now


With #TreasonSummit now trending on Twitter, it’s probably a good time to revisit that whole “high crimes and misdemeanors” thing.

The calls for impeachment are coming from far and wide — even from some who are experts in fighting against evil empires:

At this point, after seeing our president openly discredit American intelligence agencies in favor of sucking up to Vladimir Putin, impeachment as a consequence seems unfitting only in its disproportionate mildness. But since involuntary commitment seems to be off the table as a more immediate solution right now, we should talk about our options.

Under Article II, Section 4 of the U.S. Constitution, a President can be impeached upon the “Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” The House brings those formal charges against the president, and then the whole circus moves over to the Senate, which acts as the trier of fact. The Senate then hears evidence and makes the decision whether to convict and remove from office (by a two-thirds majority).

Fun as it would be to use treason as the vehicle to rid ourselves of the Donald, it probably won’t work. The treason statute, 18 U.S.C. § 2381, reads as follows:

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Trump’s post-Putin presser was an absolute disgrace, but it probably doesn’t clearly rise to the level of levying war against the U.S. That’s fine, though. We’ve still got “high crimes and misdemeanors” and those will do just fine, as long as Congress can find their backbones.

The battle between the #MAGA army and those seeking to oust Trump tends to come in the form of “that behavior is bad, but it’s not an impeachable offense,” versus the Maxine Waters view that”impeachment is about whatever the Congress says it is.” Let’s elaborate a bit on what the Constitution actually meant by “high crimes and misdemeanors.”

More than a few well-respected Constitutional scholars, such as Harvard Law Professor Noah Feldman, for example, have offered a rather broad take on impeachment. According to Professor Feldman’s school of thought, “high” is meant to modify both the word “crimes” and the word “misdemeanors,” and does not (as is often assumed), relate to the seriousness of an offense – but rather to the nature of the offense. “High,” back in the time of the Constitution’s drafting, meant “governmental” or “official,” as opposed to “personal” or “private.” Furthermore, “crimes and misdemeanors” does not mean violation of actual criminal statutes. Instead, this was an artful phrase meaning any action “performed in an official capacity by a government official that violates the basic principles of government.”

Professor Feldman is a James Madison scholar, who has done extensive research about the controversial drafting of the impeachment language back during the Constitutional Convention. The first draft used the word “maladministration” (18th century for “just doing a general crappy job”), while Madison felt it was too vague. So the group agreed on “high crimes and misdemeanors,” — a phrase broad enough to mean something, but specific enough not to mean everything. The framers, as we all know (and as seems pretty prescient right now), were hell-bent on making sure that the American president could not become a tyrant; therefore, they gave Congress the final word on whether the chief executive was carrying out his responsibilities with the requisite dignity befitting the office.

Law & Crime spoke today with attorney and national security law expert Bradley Moss, who agreed that a broad take on Congressional power to impeach is appropriate:

“The wonder of the impeachment process is how vaguely-defined parts of its provisions have always been. There remains a general consensus that Congress can define for itself what actually qualifies as a ‘high crime or misdemeanor’ in this process, even if it does not implicate a specific criminal statute. The articles of impeachment of Richard Nixon, for example, contemplated ‘charges’ for abstract things such as abuse of power.” 

This take on impeachment feels pretty different from the criminal justice system, but that’s precisely the point. Impeachment is inherently a political process, not a criminal one.  The numbers required for impeachment and conviction ensure that the process isn’t likely to oust a president who is merely unpopular; supermajorities aren’t easy to come by, and they serve as inherent guards against arbitrary or capricious actions.

Let’s remember that elections are not –and were never meant to be – sentences for the American people. We as a democracy should not be forced to endure a presidency that is proving to be malignant simply because an election preceded it. Whether Congress should impeach President Trump is a complex question; impeachment is a painful ordeal for the entire country, and should never be undertaken lightly. But I’m going to go ahead and say that what we all witnessed today weighs heavily on that issue of “should.”

Since the 2016 election, the potential for Trump’s impeachment has come up many times, in response to Trump’s suppression of the press, his comments in Charlottesville, and his general, everyday, dismantling of our government and all that we hold dear as Americans. What we saw today, though, is next-level in terms of “high crimes and misdemeanors.”  The House already had the authority to begin impeachment proceedings; now, though, with Trump’s cozying up to Russia for all to see, it has no sound basis for dragging its feet any longer.

Whether our elected representatives will act, though, is far from certain.  As Bradley Moss put it:

“In truth, however, no one truly knows for certain what would happen in that context. The Clinton and Johnson impeachment proceedings were far more conventional in that regard. Furthermore, the threshold to successfully impeach and convict a sitting President is so high specifically to minimize frivolous charges. For President Trump to actually be removed from office, it would require significant desertions by members of his own party in the Senate.”

Those of us on impeachment watch will be hanging our hats on just those “significant desertions.”



This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos