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Just what is an impeachable offence?

You hear it all the time… Can Trump be impeached for that? Is it an impeachable offense?

Article two, section four of the Constitution states that “[t]he 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 .”

Apparently, it was Benjamin Franklin who suggested that all executive officers should be able to be impeached. Their concern was that a single executive would lend itself more to the potential for corruption as opposed to a legislature made up of many individuals, which in some ways, since it cannot act without a majority vote, is self-policing. Thus the specific concern about bribery as stated in the Constitution.

Treason also seems like a valid reason to remove an officer. After all, if you are supposed to be acting on behalf of the citizens of the United States, treason is a particularly serious betrayal.

Other than those two specific charges, the Founding Fathers left the possible bases for impeachment pretty broad. Certainly “high crimes” seems to imply a pretty serious offense, a felony for sure, but misdemeanors include everything all the way down to the modern speeding tickets. Thus, the Founders did not want to exclude possible crimes of any kind that they could not think of at the time.

It seems odd to think about it in these terms, but the Founders allowed this discretion because they believed in the collective wisdom of Congress. Indeed, it is not by accident that they made it extremely hard to remove someone from office through impeachment. The waste of time and money that was the Clinton impeachment illustrated that point clearly.

Therefore the Founders left it up to Congress what would be an impeachable offense, but they required a supermajority to achieve it. In their minds, if two thirds of the Senate could agree that an official should be removed from office, there is a pretty broad consensus in support of such a move.

What’s more is that the Founders specifically chose that it should be the legislative branch rather than the judiciary that would be tasked with removing officials from office. The Founders were no fools. They knew that courts serve the law while legislators serve the people who elect them. As a result, it was a conscious choice that they made to allow someone to be removed from office simply because a broad consensus had emerged that the person should be. Unlike in court criminal proceedings, there would be no requirement to prove the elements of a specific law.

Therefore, when people say that something is or is not an impeachable offense, they are stating a red herring. Anything can be an impeachable offense, all that is required is for society overall to come to the conclusion that a certain official was no longer fit to serve. This is not an aberration. It is the way the Founders designed the system to work.

Given that point, it is fair to say that no such broad consensus has emerged in the United States that Trump should be impeached. He has never dipped below 40% approval rating, so at a minimum, he has never reached the two-thirds level of disapproval the Constitution requires. Furthermore, given the way the Senate is established, with two Senators per state no matter the state’s population, the two-thirds disapproval must be widely distributed geographically. Trump’s opposition tends to be concentrated in certain parts of the country while he still finds support across broad swaths of America. As a result, any effort to impeach Trump would ultimately be a fool’s errand.

Cable news loves to bring in talking heads who can discuss whether a certain charge constitutes and impeachable offense or not. Such discussions, in truth, are a waste of time. The only question that matters is how many votes that talking head has. If they have less than two-thirds of the Senate, it’s time to move on to a more germane topics.

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Mike is an Assistant Professor of Management for Legal and Ethical Studies at Oakland U. Mike combines his scholarship with practical experience in politics.

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