What are not criteria for impeachment?

There is a fierce debate today among scholarly experts as to what are the required criteria under the Constitution for impeaching and removing a president. The words of the Constitution, “treason, bribery or other high crimes and misdemeanors,” are fixed and not subject to dispute. The proper interpretation of these words are very much in dispute. However, there should be no dispute that certain views of these criteria, which are currently being proposed, are demonstrably and provably wrong.

Let us begin with Democratic Representative Maxine Waters of California, who has denied there are any required criteria. “Impeachment is whatever Congress says it is. There is no law,” she said. This ahistorical and lawless view confuses what Congress might just be able to get away with, in the absence of judicial review of its actions, with what Congress is required to do by the Constitution. Members of Congress take an oath to uphold the Constitution. The view of Waters, if voted on by a member of Congress, would violate that oath. It also would put Congress above the law, and indeed above the supreme law of the land, which is the Constitution.

Few reputable scholars accept the view of Waters and those who do probably would not if their favored president were being impeached based on “no law.” A president who would be subject to a vote for his impeachment and removal based on “no law,” but rather on a simple partisan vote, would be well within his power under the Constitution to refuse to accept such a lawless vote and to demand judicial review.

To be sure, the Constitution provides that the House and Senate are the “sole” judges of impeachment and removal, but the same Constitution also requires the legislative branch to apply the criteria set out by the Framers. Thus, refusing to apply these criteria would be equivalent to refusing to allow the chief justice of the Supreme Court to preside at the impeachment trial of a president, as required by the Constitution, or refusing to require a two-thirds vote for removal. Any such defiance of the specific words of the Constitution would be lawless and unconstitutional, even if Congress were to get away with it because it is the “sole” judge.

Another view that is demonstrably wrong is the one that says criteria in the Constitution cannot be ignored but can be interpreted to include criteria such as “maladministration,” “malpractice,” or other open terms suggestive of abuse of office. The fatal problem with this view is that it was explicitly proposed and definitively rejected at the Constitutional Convention. James Madison opposed such vague criteria over fear that they would turn the republic into something of a British parliamentary system in which Congress could remove a president over merely political differences with, effectively, a vote of no confidence. That, Madison said, would be the “equivalent to tenure during pleasure of the Senate.”

The Framers wanted an independent president who could be removed only for specific acts of wrongdoing, so they agreed to the criteria of “treason, bribery, or other high crimes and misdemeanors.” If there is one rule of interpretation of the text agreed to by reasonable scholars of the Constitution, whether they adhere to the “living document” or “originalist” schools, it is that you cannot interpret the words of the Constitution to mean what the Framers themselves explicitly and categorically rejected. Yet this is precisely what some Democrats are now advocating.

Members of Congress may not simply make up the governing criteria. Even if they honestly believe that if the Framers were to have observed Trump, they would have wanted to remove him. One instance from history is that if the Framers observed President Wilson following his debilitating stroke, they probably would have wanted to remove him from the White House. The text of the Constitution at that time, however, did not contain a provision for removing an incapacitated president. That gap could be filled only by amending the Constitution, not by expansively interpreting its words. The 25th Amendment was adopted to properly fill that gap.

Perhaps other gaps remain for a lazy or abusive president, or for one who abuses his powers over foreign policy and firing or pardoning. Maybe the Framers were wrong to reject “maladministration,” “corruption,” or other such open criteria. These would qualify as good reasons for amending the Constitution prospectively, but not for retrospectively stretching its words to cover a sitting president. The virtue of a prospective amendment is that it must pass the “shoe on the other foot test” because its writers cannot know whether its criteria will be applied to a political enemy or friend. It is then more likely to be nonpartisan, as contrasted with a retrospective interpretation, which could be stretched to suit a political enemy.

The “greatest danger” of abusing the impeachment power, according to Alexander Hamilton, is that the decision will be “regulated more by the comparative strength of parties than the real demonstration of innocence or guilt.” To prevent that danger, the Framers insisted on objective criteria of “treason, bribery, or other high crimes and misdemeanors” for the Constitution, rather than subjective criteria that are easily stretched and manipulated for partisan advantage. Neither political party has a right to reject the words and intentions of the Framers for partisan advantage.

Alan Dershowitz is professor emeritus at Harvard Law School and author of “The Case Against the Democratic House Impeaching Trump” and “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo.”