Impeachment is a tough topic. I get that. Before the mass media age, impeachment was only used once. Since Nixon, we’ve seen the House debate it just a handful of times. But the concept is not impossible to understand.
Unfortunately, not everyone gets it. The latest lousy take on impeachment comes from Steve Calabresi, one of the top lawyers at the Federalist Society.
Calabresi’s argument, outlined in the Daily Caller, alleges that impeachment is a legal process and that Democrats are violating President Trump’s Sixth Amendment rights. “Just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights,” he writes.
From just a purely legal argument, he’s entirely wrong. And you don’t have to take my word for this; take the words of the Founders. Alexander Hamilton, who wrote Federalist Papers 65 and 66, discusses the power of the Senate and the impeachment power at length.
Hamilton explains that impeachment is not a legal process — it’s a political one. Only in the most technical sense is impeachment a legal power. But insofar as it’s a legal process, it addresses a political wrong, not a legal one.
Impeachment is political because it addresses a breach of public trust, not necessarily illegal actions.
In describing what issues that impeachment fixes, Hamilton says: “They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” It’s political harm to society — a breach of public trust so serious that waiting for an election is unthinkable.
Hamilton went on to explain that he fully expected an impeachment process to cause an uproar among partisans. He says they 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, partialities, influence, and interest on one side or on the other,” he writes.
The expectation is one of political strife where people take sides, for and against the president, on political grounds. Hamilton finishes that thought by noting that “in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
A president can be impeached while still being fully innocent of any wrongdoing. And vice versa, it’s possible for a completely guilty president to avoid impeachment altogether if he has the political power of his party, or the public has little interest in impeaching the president.
In short, the legal bar for impeaching a president is far lower than everyone thinks. Yes, the Constitution says that impeachment happens for “conviction of, treason, bribery, or other high crimes and misdemeanors.” But the legal bar for what fits that description is whatever Congress says it is — and what gets enough votes.
While the legal bar for impeachment is low, the political bar is very high. If the House and Senate are going to remove a president, they have to come with the goods. They must convince the public that the only possible answer for the president’s conduct is immediate removal. Elections cannot be the answer — only quick removal.
That brings me to how Calabresi’s argument. While it has no legal weight, it does have political importance. The Constitution does not list any requirements for the House to decide on and vote for articles of impeachment. There’s no legal or constitutional requirement that they follow certain rules — they can choose what they want to follow. Nancy Pelosi’s decision to obfuscate proceedings to protect moderates is completely within the rules.
But just because the House can make its own rules doesn’t mean constitutional rights can be ignored. If the House wanted to follow reasonable requests and grant the White House constitutional rights during these circus proceedings, they could choose to do so. House Republicans are clamoring for that very thing, which is fully their right.
That’s not a legal argument. It’s a political one.
It’s this last point where I differ significantly from legal analysts like David French, Gabriel Malor, and others on the right who just see the House’s ability to do anything and accept that as the only reality. Attacking the legitimacy of the Democratic House investigations while demanding guardrails is entirely legitimate — and it was expected by the Founders.
Democrats can only pass articles of impeachment if they have the political backing of their party and the American public. Putting pressure on that political backing by pointing out how House Democrats are tailoring these proceedings to reach a pre-determined conclusion is a legitimate attack.
No one seriously thinks the House is conducting serious proceedings to follow the evidence. The GOP’s political attacks are meant to weaken the Democratic base and point out these proceedings are a political circus show.
Remember: Impeachment is not a legal process — it’s political. The bar for impeachment is legally very low. You could have impeached any of the presidents of this century for their conduct, legally speaking. The reason we did not is that the political will of the people was not there, despite the wishes of partisans on both sides.
Republican attacks on Democrats are politically legitimate and were fully contemplated by the Founders. The media only pretends to be shocked at conduct because they’re doing everything in their power to reach a Senate impeachment trial.
The media wants impeachment — and the Founders expected that partisanship too. But if you want a successful impeachment, you have to bring the goods — otherwise, the only answer is the 2020 election.