As the shocking array of legal and moral transgressions by Donald Trump and his associates, staff and cabinet piles ever higher, and as the midterm elections appear to favor Democrats, the process of impeachment looks to be inevitable. The curious and arguably archaic term “high crimes and misdemeanors,” for the second time in recent American history, has regained importance.
There seems to be some confusion about what “high crimes and misdemeanors” means. It comes from Section 4, Article 2 of the Constitution, which reads:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office upon Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Perhaps this explains why the “high crimes and misdemeanors” portion is so important.
In the case of impeaching Trump, while both “treason” and “bribery” both may appear in any articles of impeachment, each are problematic. The Constitution provides that treason can occur only when granting aid or comfort to an enemy in war, and the US, while killing people in many different countries, is not legally at war anywhere. Bribery, also, is rather narrowly defined and hard to prove. That, partly, is why the focus on Trump’s income from his properties has been not been about any direct quid pro quo. Instead, the focus is on any violations of the Constitution’s emoluments clause and its prohibition against accepting payment from foreign governments.
That leaves “high crimes and misdemeanors.” The construction is odd to the contemporary ear, beginning with the use of “and” rather than “or.” More troublesome is the meaning of “high crimes,” not a term otherwise in use nowadays. Juxtaposed against misdemeanors, the expression could easily be taken to mean felonies. A felony is a more serious crime than a misdemeanor, usually distinguished by being punishable by more than a year’s incarceration. That’s not what it means, though.
In the argot of 18th-century legalese, it turns out that “high crimes” referred to misdeeds committed by people in high office — some of which, committed by ordinary people, would not rise to the level of a crime. It could be taken to mean “conduct unbecoming.” With that in mind, a high crime is a low bar. Bill Clinton’s conduct certainly warranted conviction as well as impeachment by such a standard.
So what about Trump? Forget about what happened before he ran for president, and let’s just examine how he’s behaved during his campaign and — well, his endless campaign. We will save the most serious of his crimes — obstruction of justice; conspiracy with an inimical foreign power — for last. First, let’s start with violating the Constitution’s emoluments clause, which reads:
No title of nobility shall by granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of Congress, accept any present, emolument, office or title of any kind, from any king, prince or foreign state.
The language is quaint, but the meaning is clear. The list of financial scandals involving Trump’s immediate family and close business and political associates is lengthy. In the aggregate, it points to an irresponsible, careless, likely criminal presidency. Sex scandals abound. They include numerous allegations of sexual assault, more or less confirmed by Trump himself (“grab ‘em by the pussy”), as well as the apparent violation of campaign finance laws in the Michael Cohen-Stormy Daniels case.
The president has long had a reputation, continuing into the present, for refusing to pay contractors. This is not once in awhile; there are hundreds of such allegations. When sued, he has failed to pay his lawyers. That’s poor form; it, too, borders on criminality. Because his record in business (including four bankruptcies and huge strings of losses) is so bad, and because his record of paying vendors is so poor, it appears to be impossible for the Trump cabal to get a loan from any large American bank. Deutsche Bank, with its shady reputation, through one of its loan officers who happens to be the son of now-retired Supreme Court Justice Anthony Kennedy, came to the rescue. So, too, by admission of Trump’s own son, did Russian interests.
Which brings us to Trump’s deeply complicated, close and suspicious ties to Russia and its brutal, autocratic ruler, Vladimir Putin. These ties lead straight into the allegations of obstruction of justice, beginning with Trump’s many attempts to discredit Special Counsel Robert Mueller, Attorney General Jeff Sessions, Deputy Attorney General Rod Rosenstein, and others associated with the investigation of Russian interference in Trump’s “election.”
News coverage of all this has been exhaustive, if belated, and analysis and commentary have been wearisome. So there’s no need to detail it all. This brief and partial list of bad behavior, in fact, is only to make the point that impeachment is not premature. This guy was ripe for impeachment and conviction more than a year ago, when Democratic reps Al Green of Texas and Brad Sherman of California filed articles to do so — followed quickly by Rep. Steve Cohen of Tennessee and a few others.
Thus far, the impeachment process has gone nowhere; both the House and the Senate are controlled by Republicans, and the Democratic leadership is too timid to push the matter. It is time those Democrats found the courage of the righteous, but their calculus around this November’s elections is faulty, as usual. They figure impeachment proceedings, or even so much as talk about impeachment, will stir up Trump’s base. That’s cowardice.
It would take even more courage for Republicans to do what they damned well know is right. It is wrong for any of them to hide behind the idea that you need a better reason than they already have to get this done. After all, the Constitution does not require any more. Why not? Because the American people have a right to expect more of a president than not being convicted, yet, of a felony.
Courage is in short supply, but history will reward those who exercise it first. Members of Congress have to be asking themselves some fundamental questions lately. A couple of appropriate ones might be these.
To Republicans: Did you not conceive when you ran for office that there would be a day when you’d be asked to choose between your office and your conscience? What did you think you would do?
To Democrats: When is the right time to do the right thing? Could it be that the answer to that question is always the same, and that it is now?
This should be fodder for some of those “conservatives” who proudly proclaim themselves strict constructionists and constitutional originalists.