Impeachment and Presidential Power

It is easy to conclude that the impeachment proceedings against President Trump are politically motivated. Both the House and Senate appear split on the issue along party lines, so the outcome that the president is impeached by the House but not convicted by the Senate seems a forgone conclusion.

The Constitution is vague enough on the impeachment process that it appears, simply from reading the words, that impeachment could be justified by the president’s conduct, but that impeachment is not required by his conduct.

Article 4, Section II of the Constitution reads, “The President, Vice President and all civil Officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

There’s been lots of discussion on the vagueness of “high crimes and misdemeanors” along with the suggestion that activity does not have to be illegal to be impeachable. I’m not an attorney, but my impression is that crimes and misdemeanors are illegal, as are treason and bribery.

Setting aside the crimes and misdemeanors, the big issue seems to be the president’s withholding of military aid to Ukraine, offering to release the aid if Ukraine investigated Hunter Biden. That could fit the definition of bribery and provide grounds for impeachment.

But the Constitution does not say the House must impeach, only that it can. The way I’m looking at it, if a majority of the House wants to impeach the president, they have wide latitude to do so. My view corresponds with the popular view that the impeachment proceedings are politically motivated.

That said, I see two advantages to the impeachment proceedings: one small; one large. The small one is that while Congress is preoccupied with impeachment, it distracts them from doing other things, most of which tend to be harmful. The large one is that because of this politically motivated impeachment circus, the presidency—not President Trump; the presidency—is being put on notice that Congress will stand ready to check and balance the use of presidential power.

As I note in my book, Liberty in Peril: Democracy and Power in American History, the power of the presidency has grown in the twentieth century and into the twenty-first, in part because Congress has willingly turned over much of its power to the executive branch. A system of checks and balances does not work unless all parties jealously protect their power, which Congress has not done.

To see Congress openly confront the president’s exercise of power might be a step toward reining in the imperial presidency by putting the president on notice—not just this president, but also future presidents—that Congress is willing to act as a check on the presidency.

The accusations against President Trump seem more serious than those against President Clinton when he was impeached. Perhaps President Clinton’s sexual escapades were criminal and should have been tried in court, but they had nothing to do with his official actions as president, so Congress should not have been involved—with the caveat noted above that the wording of the Constitution gives wide latitude to the House to impeach.

Taken together, those two impeachments are more powerful than President Trump’s impending impeachment alone. The Clinton impeachment shows that the president does not have to abuse the office when undertaking official duties, but can even be impeached for transgressions in one’s personal life.

This comes back to the point that Congress has wide latitude to impeach, and has shown its willingness to do so for reasons that range from the serious to the frivolous. My hope is that this is an indicator of a rebalancing of political power at the federal level. I’m not sure that it is, but I hope that it is.

Randall G. Holcombe is a Senior Fellow at the Independent Institute, the DeVoe Moore Professor of Economics at Florida State University, and author of the Independent Institute book Liberty in Peril: Democracy and Power in American History.
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