
© (Erin Schaff/ReutersThe U.S. Supreme Court in Washington, D.C., June 11, 2018
Do the charges against Trump pass constitutional muster? The justices should decide before the Senate does.
In the present overheated state of official Washington, there may be no alternative to charging into an impeachment trial whose outcome is a foregone conclusion.
There is no allegation of treason, bribery, a high crime, or a misdemeanor, the four categories of offense the Constitution identifies as justifying the removal of a president, and no evidence of any such offense. The Democrats tried bribery for a couple of weeks after their focus groups were stirred by it, but gave it up as too implausible.
The only bribe that has been unearthed was of the Biden family, and not even this rabid ragtag of bloodless assassins has tried treason, though that wicked act was much bandied about in the piping days of the previous Democratic putsch attempt over collusion between Trump and Russia in the 2016 election. The preferable next step would be for the Senate to ask the Supreme Court to determine whether the four grounds cited by the Constitution for removal of a president are exclusive, and accordingly this impeachment bill need not be tried, or those categories are merely illustrative, and Gerald Ford was correct when he said impeachment can be for any reason the majority in the House of Representatives determines.
I believe it is clear that the authors of the Constitution did not want a president removed for anything less than a high crime, and that none of the impeachment efforts in history would qualify. Andrew Johnson had fired the war secretary, which was his right, and he was narrowly acquitted in 1868 in the intense post-Civil War Reconstruction atmosphere. Richard Nixon was charged by the Judiciary Committee with having "made it his policy" to "obstruct," and having "through his close subordinates and agents" obstructed, the Watergate investigation; and of having "endeavored" to misuse the IRS (not having actually done so, as Franklin Roosevelt, Kennedy, Lyndon Johnson, Obama, and others have done); and of impeding the impeachment proceedings by temporary noncompliance with House committee subpoenas. The last was an obviously absurd charge, but even the first two were not high crimes, and there has never been any conclusive evidence that Nixon was guilty of them anyway. But his impeachment case was a model of fairness compared with the present nonsense. President Clinton may have lied to a grand jury about his extramarital sex life, but that was not a high crime either, in constitutional terms, and was rightly judged insufficient to justify his removal.
Comment: From the article, Dems' Push to Impeach Trump is Merely the Latest Chapter of US Civil War 2.0