Writing articles of impeachment: A House Judiciary guide
It’s official: The majority caucus in the U.S. House of Representatives announced Tuesday that it will draft two articles of impeachment against President Donald Trump.
As the House Judiciary Committee sets out to write the articles, its Democratic staffers have circulated a 52-page primer on the exercise that every member of Congress should digest before voting on this most demanding duty.
The document not only outlines the heavy legal task but also provides guidance on some of the essential issues raised by the Senate Republicans as they are poised to reject the expected House vote to impeach when the matter reaches them, which may happen shortly after the Christmas recess.
The document is premised on lessons learned from the impeachments of Presidents Andrew Johnson in 1868 and Bill Clinton in 1998-99, and the aborted impeachment process started against Richard Nixon, which was obviated by his resignation in 1974.
It begins with the caution of George Mason of Virginia at the Constitutional Convention in Philadelphia in 1787: “If we do not provide against corruption, our government will soon be at an end.” Perhaps with that mind, when a woman passer-by of the day asked Benjamin Franklin what the delegates had achieved, he famously replied: “A republic, if you can keep it.”
The Judiciary staff guide observes at the outset: “Impeachment is the Constitution’s final answer to a President who mistakes himself for a monarch. Aware that power corrupts, our Framers built other guardrails against that error.”
It notes the creation of the separation of powers among the three branches and the special task of the legislative and judiciary to oversee the executive, commenting: “The Framers were not naive. They knew, and feared, that someday a corrupt executive might claim he could do anything he wanted as President.” This Trump has explicitly done.
Accordingly, the staff document goes on, “the Framers built a safety valve into the Constitution,” providing his removal from office through the impeachment process, and the current House Judiciary Committee is now using it, to answer another Mason question: “Shall any man be above justice?” His own response was that “some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen.”
The guide makes the critical point that impeachment goes no further than “the loss of political power. … It exists not to inflict punishment for past wrongdoing, but rather to save the nation from misconduct that endangers democracy and the rule of law. Thus, the ultimate question in an impeachment is whether the leaving the President in our highest office imperils the Constitution.”
Pertinent to the current situation, the Judiciary guide discusses “bribery” as a specific impeachable “high Crime and Misdemeanor,” because the Framers as “careful students of history … feared would-be monarchs, but also warned against fake populists, charismatic demagogues and corrupt kleptocrats. The Framers thus intended impeachment to reach the full spectrum of Presidential misconduct that menaced the Constitution.”
It notes that “impeachable bribery occurs when the President offers, solicits or accepts something of personal value to influence his own official actions,” creating grounds to “expel a leader who would sell out the interests of ‘We the People’ for his own personal gain.”
The committee guide goes on to make the case for charging Trump with further “abuse of power” and “betrayal involving foreign powers,” and refutes the notion that the chargeable crimes must be committed to qualify for impeachment. It notes that in neither the Nixon nor Clinton cases were violations of any criminal code cited, observing that “ultimately, the House must judge whether a President’s conduct offends and endangers the Constitution itself.”
In all, the committee’s majority strives to make the Trump impeachment appear less a case against the man as unfit or unworthy personally to continue in the Oval Office, and more one of an impersonal defense of the nation’s hallowed Constitution.
Jules Witcover is a nationally syndicated columnist.