As I previously wrote, the Founding Fathers insisted the impeachment process be conducted by the government’s most political branch, Congress, because deciding whether or not to remove the president from office should be a political one.

As Alexander Hamilton wrote in Federalist 65, impeachable offenses are “an abuse or violation of some public trust,” so the public, the American people, should decide if that abuse or violation, identified in the Constitution as “Treason, Bribery, or other high Crimes and Misdemeanors,” merits removal from office.

Treason is defined in the Constitution as levying war against the United States or aiding the nation’s enemies, and bribery is bribery. But purposely so, “high Crimes and Misdemeanors” is so broad it can mean whatever Congress thinks it means at any given time.

So, Congress can choose not to impeach for something that is a crime. President Clinton committed two federal crimes, lying to a grand jury and obstructing justice, but he was not removed from office because Congress, channeling the American people, didn’t think doing so to cover up an affair with a White House intern qualified as a high crime or misdemeanor.

Richard Nixon also committed federal crimes: Obstructing justice, abuse of power and contempt of Congress, but he did so for reasons far more nefarious and dangerous to the nation, and therefore his impeachment was certain. So, to avoid impeachment, he resigned.

But Congress also can choose to impeach a president for something that is not a crime, which is the main reason the Founders included the “high Crimes and Misdemeanors” language.

The Founders understood that the nation’s chief executive might act in ways that were not illegal but threatened the nation. It is not illegal for the president to refuse to hold Cabinet meetings, get briefings or listen to advice from experts when a critical domestic or foreign-affairs issue confronts the nation. But Congress could well consider such behavior so dangerous to the nation that it fits the high crimes and misdemeanors definition.

To give a historical example, during Andrew Johnson’s impeachment trial in 1868, Rep. Ben Butler posed this scenario: If someone other than Lincoln (such as the southerner and longtime slave owner Andrew Johnson) was president in 1861, and refused to use force to end the Confederacy’s rebellion, would Congress and the American people do nothing, and therefore allow the Union to dissolve because “the president’s inaction was no crime”?

The point being that ignorance, incompetence, erratic behavior — “maladministration,” as the Founders labeled it — might not be crimes, but if exhibited by the president they could pose a serious national security risk, and therefore Congress must have an “indispensable remedy.”

The power to remove a president committing them.

Email Kauffmann at bruce@historylessons.net, or follow him on Twitter

@BruceKauffmann.

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