We need a constitutional amendment defining ‘high crimes and misdemeanors’

Unless a dozen Republicans change their minds after reviewing the evidence presented by the House impeachment managers, the Senate will not convict former president Donald Trump. Congress, therefore, should consider an alternative action — one that likely would garner strong bipartisan support, which is much needed these days: a constitutional amendment to define “high crimes and misdemeanors.” This congressional action would look past the former president’s serious misdeeds that resulted in a second impeachment. For those who say that lets him off too easily, the plain fact is that the votes are not there to convict, and history will judge him harshly.                                                         

Americans elected President Biden and his fellow Democrats to get us to where we can finally see some light at the end of this pandemic tunnel, where we can start getting back to making the country better, for all of us. How does diverting attention from fighting the pandemic to spend weeks fighting another dead-end impeachment drama help the public at this critical time?  

The voters removed President Trump in November. He lost the popular vote by seven million. He will be 78 years old in 2024. Given demographic trends, he might lose the popular vote by 10 million votes or more should he run again. America faces a lot of challenges. Worrying about a second Trump term is not one of them.    

The push for a second Trump trial highlights the real impeachment dilemma facing our country. The Constitution fails to adequately define the phrase “high crimes and misdemeanors.” This constitutional oversight has led in recent years to the impeachment clause being seen by much of the public as just a partisan tool wielded against presidents. Presidents Clinton and Trump were impeached. President Nixon resigned to avoid impeachment. Looked at one way, the legislative branch has wanted to overturn a popular election of three of the previous eight elected presidents. This is an incredibly high percentage, and in part it is the result of Congress’s inability to put presidents on notice as to clear, specific definitions of impeachable conduct.    

When asked to define the standard for what constitutes high crimes and misdemeanors, Rep. Gerald R. Ford (R-Mich.) famously said that they are “whatever a majority of the House of Representatives considers them to be at a moment in history.” Ford was right — there is no clear definition, so whatever a temporary majority of the House decides is it. A majority in the House would not support impeaching President Reagan over the Iran-contra scandal, but a majority impeached Bill Clinton over arguably much less. Where’s the standard?  

The concept of due process is central to our governing system. Defining what constitutes a constitutional crime only after the commission of the act is inconsistent with this tradition. Due process in our law has long been thought to demand prior notice as to what constitutes an offense with such an enormous punishment. In this way, the perpetrator must concede that he or she had been fairly warned.     

Instead of another trial, we propose that the Senate, along with the House, should expend this energy on specifically defining, for the first time, high crimes and misdemeanors. If senators believe that Trump committed impeachable offenses, then put future presidents on notice as to what constitutes impeachable conduct. Congress should consider putting the definitions of high crime and misdemeanors into a new constitutional amendment and send the proposal for ratification to the states. We believe there will be sufficient bipartisan support, if done correctly. Alternatively, Congress could legislate a definition, although that would be less powerful – and subject to easy change over time – than amending the Constitution. 

Developing a bipartisan description of impeachable offenses is in the nation’s immediate best interest. By removing specific presidents from the discussion, and instead defining prohibited future conduct, both parties can focus solely on the public interest. There will always be political dynamics to future impeachments. But what we propose will hopefully be a check and balance on what seems increasingly inevitable if we do nothing: a future “turnaround is fair play” justification for impeachments that will eventually tear apart the governmental fabric. 

To quote Gerald Ford again, “our long national nightmare is over,” and Trump’s presidency is now in the past. Our proposal is aimed at heading off future impeachment controversies before they happen. We need to put all who seek the White House on notice: There is now a bipartisan impeachment and conviction line a future president should expect Congress to enforce if he or she crosses it.   

Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University and co-author of the new book “The Unitary Executive: A Danger to Constitutional Government.” Paul Goldman is former chair of the Democratic Party of Virginia.