Tomorrow will commence the third presidential impeachment trial in the history of the United States Senate. And on the eve of such a rare and solemn institutional undertaking, it is still not entirely clear what exactly President Donald Trump has done to deserve such a fate.
At the outset of this saga, House Democrats spent weeks promoting an oh-so nefarious “quid pro quo” that transpired during Trump’s now-infamous July 25 phone call last summer with Ukrainian President Volodymyr Zelensky. It turns out that abstruse Latinate didn’t poll-test well — and never mind that such a “quid pro quo,” when cabined to a public official’s lawful exercise of his constitutional authority, amounts to constitutionally protected free speech. Democrats next engaged in the hilariously public floating of bribery — which is actually enumerated as a presidential impeachment criterion in Article II, Section 4 of the Constitution — before deciding that they simply lacked the grist to advance such a claim. Democrats ultimately settled on the mealy-mouthed, amorphous gibberish of “abuse of power” and the utterly nonsensical, constitutionally illiterate “obstruction of Congress” as their charges of choice.
As Daily Wire Editor-in-Chief Ben Shapiro and I have each observed countless times since Democrats first glommed onto the Ukraine phone call as possible grounds for impeachment, it is true that actually committing a black-letter crime is not a constitutional requirement to impeach a sitting president. “High crimes and misdemeanors,” the catch-all presidential impeachment criterion enumerated in the Constitution after treason and bribery, was a well-known term of art in the English common law. Alexander Hamilton explained in The Federalist No. 65 that it encompasses “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
True, the Hamiltonian language presents a necessarily political and malleable standard. But it is also true that the Constitution’s Framers did not view everything as a potentially impeachable offense. To wit, the Framers expressly deliberated whether to make the far lesser “maladministration” an impeachment criterion before rejecting it out of fear that it could lead to highly partisan impeachment proceedings motivated by either a mere policy disagreement or the raw pursuit of political power. Hamilton certainly understood that, writing in the same Federalist that impeachment would “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.”
Accordingly, even though the actual violation of a law is not constitutionally required, Democrats’ current partisan gambit represents the first time in the history of the republic that an impeachment has nonetheless been attempted without the undergirding of a legally violative act. President Andrew Johnson violated the Tenure of Office Act — an unambiguously unconstitutional statute, but technically a statutory violation nonetheless. President Bill Clinton, investigated for years by former independent counsel Ken Starr, committed perjury. President Richard Nixon, who resigned in disgrace before a formal House vote on impeachment, was knee-deep in the Watergate scandal.
What exactly has President Trump done? He acted in a ham-fisted and sloppy manner on a phone call with a foreign leader when it came to the conducting of his foreign policy — an action squarely within his well-established constitutional bailiwick. True, he should not have mentioned Joe Biden by name. But ultimately, Trump tried to attach corruption-related strings, however clumsily, to the doling out of one of the most consistently politically unpopular items in annual federal budgets: Foreign aid.
The conduct upon which Democrats are now attempting to impeach the president is orders of magnitude less destructive than the conduct upon which the Framers would have considered impeachment justified. It reeks of the sort of petty politics and jostling for power that led the Framers to conscientiously reject the far lesser “maladministration” as a possible grounds for impeachment. What’s worse, House Democrats rushed their process due to political timing and, in their rush, have fundamentally failed to make their case to the American people. They have failed at impeachment, and they have no one to blame but themselves. And in their recklessness, Democrats have also set a deeply pernicious precedent for the future of the Constitution’s carefully calibrated separation of powers framework.
Alas, let the trial commence.