The US Constitution lists the terms "treason, bribery, or other high crimes and misdemeanors" as acts meriting consideration of impeachment.
Treason and bribery are self explanatory. A ‘high’ crime in the parlance of the era in which the Constitution was written is a crime against the state. Other ‘high crimes and misdemeanors’ are not defined in the body of the Constitution.
In 1970, Gerald R. Ford stated: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history."
Did the framers of the Constitution consider this apparent paradox? More . . .
Although Mr. Ford’s observation is correct, the real question is what criteria that majority should employ in arriving at its decision.
The impeachment process itself has important parallels with that of the criminal justice system. The indictment in the criminal system is analogous to impeachment in the House of Representatives. The actual trial is held in the Senate. A two-thirds supermajority is required for conviction.
Looking back at the history of the Constitution as noted in The Federalist, the notion that the impeachment process could be political can be seen in No. 65, The Federalist, (Hamilton) which states in discussing the powers of the Senate:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with particular propriety be denominated POLITICAL, [emphasis in the original] as they relate chiefly to injuries done immediately to the society itself.
The use of the word POLITICAL is descriptive of the victims of the offense, not the impeachment process contemplated by the framers. Note also the words descriptive of the offenses contemplated by Hamilton for which impeachment might be sought are ‘misconduct’ and ‘the abuse or violation of some public trust.’
One could infer from the use of the term ‘public trust’ that the framers expected the President to exercise his duties consistent with the standards employed by a trustee over the corpus of a trust, and that he owed a fiduciary responsibility to the public in connection with actions taken as chief executive.
Hamilton concludes the paragraph as follows:
The prosecution of them, for this reason, 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 [political parties evolved later in our history] and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties than by real demonstrations of innocence or guilt.[emphasis added]
There would appear to be no question that Hamilton was fearful of the danger that politics (‘the comparative strength of the parties’) would have a greater impact on the impeachment conviction decision than the ‘real demonstrations of innocence or guilt.’
Subscribing to the belief that impeachment is no more than a political process leads to the conclusion that no sitting President is in danger of impeachment when the party with which the President is associated controls the Congress. The offense would matter not a whit. The corollary is that every President is in danger of impeachment when the opposition party controls the Congress and wields impeachment as a political bludgeon.
We have this come to pass in the recent impeachment of Bill Clinton. A man alleged to have committed a ‘high crime’ by a Republican Congress. Acquitted, yet tarnished forever. Since then, we have observed the silence of the lambs.
This is exactly what Hamilton described above as a great danger. I believe that the dangers feared by Hamilton have been visited on the United States with certain of the actions of this President and the inaction of the Congress just adjourned.
Viewing impeachment solely through the prism of politics is cynical and simply wrong. Yet it appears increasingly to be the standard referred to by leaders of both leading political parties.
I find this attitude on the part of Congressional leaders (irrespective of party) to be repulsive.