On Wednesday the House of Representatives exercised its constitutional authority under Article I, sec. 2, cl. 5, which gives the House “the sole Power of impeachment.” Article II, sec. 4 provides that a president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The two articles of impeachment approved by the House of Representatives set forth two charges and a summary of the relevant facts and the applicable law relating to each. This brief comment discusses the two articles of impeachment and how the charges in each relate to the role of the Constitution and the purposes of government.
The reasons for having the Constitution on which our government is based are also the reasons that the founders decided to include an impeachment power in the Constitution. The Constitution was designed to both aggregate and limit government power.
The impeachment power reflects both of these aims—a strong government that can be held accountable to the people, the ultimate sovereign under our Constitution. The power to impeach was allocated to the House of Representatives and the power to convict was allocated to the Senate.
The political theory on which the Constitution is based is articulated in the Preamble to the Constitution, which locates sovereignty in the people of the United States and enumerates the purposes of constitutional government. The Preamble states clearly that “We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” This is why the Constitution matters. This is why departures from this blueprint for constitutional government matter. This is why oversight and accountability matter. This is why impeachment is part of the Constitution. This is why the Articles of Impeachment matter and why they must be based not simply on the kind of evidence that suffices in criminal law but on the values on which our political system is based and clear statements of why particular activities are not simply ill-advised but because they are inconsistent with our enduring foundational values. Impeachment is a response to constitutional crimes that violate the premises of our political system and that infringe on the rights of the people, the sovereign in our system of government. Impeachment is not a coup because the president is not the sovereign. Impeachment is better understood as a usurpation of the people’s power by a president.
Article I: Abuse of Power
Article I accuses the president of abuse of power. This is the most far-reaching and the most foundational charge that can be levied against any president (or any other public official subject to impeachment). Abuse of power is a crime against the people of the United States, which is to say, abuse of power is a crime against the sovereign. The Impeachment Clause refers to “high crimes or misdemeanors” committed by a president. The president has failed in or has corruptly refused to fulfil the duties allocated to the president under the Constitution. The people’s representatives in the legislative branch are required to represent the people in deciding whether the president’s actions or inaction constitute a crime against us in our capacity as the sovereign.
Article I provides specific instances of abuses of power. The president “solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election.” The president attempted to withhold from the new government of Ukraine military aid in its effort to defend the country against invasion by Russian-backed forces that now occupy significant sections of Ukrainian territory. This military assistance was to have been made available under a statute enacted by Congress and signed the president. Withholding such aid was an attempt to use taxpayer-provided assistance in furtherance of a scheme to enhance the president’s chances of reelection in 2020. Article I concluded that: “President Trump used the powers of the presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored the interests of the nation.” Article I concluded that “President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.”
Article II: Obstruction of Congress
Article II determined that the president’s refusal to respond to subpoenas for documents and for appearance of certain administration officials to appear before the committees of the House of Representatives charged with investigating the president’s actions unlawfully obstructed a duly constituted impeachment inquiry.
Article II states that the president’s obstruction of the impeachment inquiry constituted an effort to prevent the House of Representatives from exercising its constitutional authority as “the sole Power of Impeachment” and thereby constituted an attempt to seize from the House of Representatives its constitutionally-allocated role and duty. Article II states that the president “…sought to arrogate to himself the right to determine the propriety, scope, ad nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any and all information to the House of Representatives in the exercise of its ‘sole Power of Impeachment.’ In the history of the Republic, no president has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors.’ This abuse of office served to cover up the president’s own repeated misconduct and to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.”
Article II concluded that the president’s actions were “contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.”
Article II concludes with the same words as does Article I: “President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.”
The two Articles of Impeachment accuse the president of constitutional crimes, of crimes against the sovereign, which is to say, crimes against the people. But this is only the beginning. It is difficult to say when or how an impeachment ends. The removal of the president or the decision not to remove the president may not in any meaningful sense constitute an ending, much less a resolution of the issues and disputes that occasioned impeachment. An impeachment is a challenge to perceived abuse of power and a challenge to the very values at the core of our constitutional system.
Frances R. Hill is professor of law and Dean’s Distinguished Scholar for the Profession at the University of Miami School of Law.
