There is and has been a lot in the media about impeachment.  A good part of the sound and fury signifying nothing comes from the constitutional text referring to “high crimes and misdemeanors.”  And part of that misunderstanding comes from using modern criminal justice terms to define an eighteenth century text.

Today, the general distinction between felonies and misdemeanors is based on the potential sentence — over one year for felonies and less than one year for misdemeanors (although some states draw different lines since each state is free under the Tenth Amendment to define those terms as they see fit).  But that one-year line tends to be used in federal enhancement statutes (those that increase the minimum or maximum sentence based on prior criminal history) to define what counts as a felony offense.   And there are a lot of “white collar” criminal offenses.

Originally, however, the distinction between a felony and a misdemeanor was whether the offense was a capital offense carrying the death penalty and confiscation of all of the offender’s property  (a felony) or an offense for which an alternative disposition was made (misdemeanor).   Out of twenty-two federal offenses created in the Crimes Act of 1790, seven carried the death penalty (in most cases a mandatory death penalty).   As such, the reference to high crimes and misdemeanors was really a broad statement of potential grounds for impeachment as it was highly unlikely that a public official would be guilty of a crime meriting the death penalty.

Alexander Hamilton gave a good explanation of what would qualify for impeachment and the impeachment process in Federalist 65:  “The subjects of [impeachment] are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.  They are of a nature which may with some peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.  The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.  In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstrations of innocence or guilt.” (emphasis in original).

Our put into more modern language, impeachment will normally be based on some type of alleged abuse of power.  And what qualifies as abuse of power will tend to be in the eyes of those opposed to the President.  And, once impeachment begins, people will tend to fall back into the old party lines with those supporting the party out of power favoring impeachment and those supporting the President’s part opposing impeachment.  And it will be difficult for Representatives and Senators to avoid supporting the party position.  (One of the reasons for granting the power to try impeachment to the Senate was that the indirect election process prior to the Seventeenth Amendment and the six-year term reduced the political pressure on Senators.)  We have seen this in each of the three prior impeachment processes and in the current preliminary impeachment process.  A resolution of impeachment has only passed (or in the case of Nixon been on the verge of passing) when the House is controlled by a different party than the President’s party.  The closest that we have come to the removal of a President was Andrew Johnson when the Republicans had over two-thirds of the Senate seat.  In the cases of Richard Nixon and Bill Clinton, the opposition party had a clear majority in the Senate but still needed some assistance from the President’s party to get to two-thirds.  In 1974, the mood of the country had turned enough against Richard Nixon to make it probable that enough Republicans would desert the President in the Senate to preserve their own skins, but Bill Clinton still had enough support that the Republicans could not get enough Democrats to reach two-thirds.  (Actually in 1999, Republicans could not hold their own party together given Bill Clinton’s popularity and the unpopularity of impeachment).

This history teaches caution in proceeding toward impeachment.  While many Democrats wanted the party to move faster on impeachment, there simply was not a smoking gun until recently.  Even with that smoking gun, we still need some dominoes to fall in place to increase the pressure on Republicans enough to get a conviction on an article of impeachment.

Right now, if I were on the judiciary committee, pending the completion of the semi-behind closed door investigation of the relevant committees, what would be the basis of the articles of impeachment.

Article I — Violation of Title 52, Section 30121 barring the solicitation of a donation to a federal campaign from a foreign national (and donations include in kind contributions)

Article II — Abuse of power — refusing to provide aid duly appropriated to a foreign government until that government did a personal favor for the president by investigating his opponent.

Article III — Violation of Article II, Section 1, clause 7 (the domestic emoluments clause) of the Constitution by charging the federal government for the use of and directing federal agencies to use properties owned by the president’s company without any competitive bidding.

Article IV — Violation of Article I, Section 9, clause 8 (the foreign emoluments clause) by receiving payments through his company from foreign governments and requiring foreign governments to spend money at those properties (by scheduling the next G-7 Summit at a Trump Resort)

Article V — Obstruction of Justice by refusing to comply with duly issued subpoenas of the House connected to the impeachment and other inquiries.

In short, the focus of impeachment should be the abuse of power and personal corruption at the heart of the Trump Presidency, not anything that happened in 2016.   We are facing an unusual situation in which the President is the head of a closely-held corporation that owns hotels and other real estate developments.  This has never happened before in U.S. history.  With most presidents, when the President has left the White House, he has gone to a non-commercial property that had sufficient space to house the necessary governmental personnel or such personnel have stayed at a property in close proximity that was not owned by the President.  Here, the President has chosen to stay at his business’s properties and that business has charged taxpayers for housing support personnel.  Additionally, other personnel when travelling have been directed to use that property and foreign governments have tried to curry favor by staying at those hotels.  Even if the Senate ultimately chooses not to remove President Trump, the clear message of the impeachment articles and the House’s case in the impeachment trial should be that President Trump has put his personal interests first and put the interests of the United States tenth (at best).   And any Republican Senator who believes in the Constitution should vote in favor of removal and barring President Trump from holding any office in the future.