The Senate Is About to Abolish Impeachment

A Trump acquittal, coupled with Clinton’s, will gut Congress’s most important check on presidential power.

The Senate side of the U.S. Capitol
J. Scott Applewhite / AP

About the author: Kimberly Wehle is a professor of law at the University of Baltimore. She is the author of the book How to Read the Constitution—And Why.

The 45th president of the United States is reportedly “going crazy” after the House of Representatives impeached him Wednesday. But the biggest casualty of the current impeachment exercise isn’t Donald Trump’s emotional state. It’s the power of Congress to exercise the impeachment prerogative in the first place.

Trump is only the third president, after Andrew Johnson and Bill Clinton, to be called to account in this way. And in all likelihood, Trump will join his predecessors as the third to evade removal after trial in the Senate. A Trump acquittal, coupled with Clinton’s two decades ago, could mark the demise of impeachment as a meaningful lever of presidential oversight. Together, the outcomes of the two cases would represent a stealth amendment to the U.S. Constitution itself—a de facto elimination of Congress’s power to remove a president unfit for office.

The Constitution refers to impeachment a number of times, as an express means of removing “the Judges, both of the supreme and inferior Courts,” as well as “the President, Vice President and all Civil Officers of the United States [for] Treason, Bribery, or other high Crimes and Misdemeanors.” Like any law, this language is only meaningful to the extent that it is effectively enforced. If drivers who park in a no-parking zone get no tickets, the law banning parking there means nothing.

So, too, with Congress’s impeachment power. The two most recent efforts are noteworthy not for the presidential acts deemed unacceptable by the House, but for the categories of misconduct deemed by the Senate to be inadequate grounds for removal.

Clinton was impeached in part for lying to a grand jury about “the nature and details of his relationship with a subordinate Government employee,” as the articles approved by the House in 1998 put it, and about his “prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him.” That charge stemmed from a civil lawsuit over alleged sexual harassment that occurred prior to his time as president. The Supreme Court unanimously refused to stay litigation in the civil lawsuit until Clinton reentered private life. When Clinton’s efforts to cover up an affair with a White House intern came to light, both Republicans and a number of Democrats initially viewed his behavior as impeachable. Later, though, the majority of Democrats took the position that immoral behavior was not grounds for impeachment, even if Clinton had lied about it under oath. Extramarital sex, they reasoned, had little if anything to do with abuse of the far-reaching powers of the presidency for personal gain, and Republicans could not muster the two-thirds majority necessary to convict and remove Clinton.

The net precedential effect of that impeachment, then, was that a crime having nothing to do with an abuse of office does not warrant removal.

The Trump case involves precisely the opposite scenario: an abuse of office without a companion article of impeachment expressly alleging a crime. (Obstruction of Congress can be a crime, but House Democrats did not frame it as such.) During Wednesday’s hearings, Democrats emphasized that the president is not a king, that Article II does not give him unlimited discretion to conduct foreign policy, that the Framers’ deep concern that an unscrupulous president would abuse his office to sway elections in contravention of national-security interests has come to fruition, and that the legislative branch must remain a vibrant check on the office of the presidency in the face of “extreme and unprecedented” obstruction.

Trump’s backers argued in response that the first article of impeachment—abuse of power—is so dangerously vague that it could leave future presidents vulnerable to impeachment just for doing their job. Republicans also claimed that impeachable conduct requires a crime supported by direct evidence that’s devoid of “hearsay”—a legal term that has been misused and misapplied routinely during the course of the impeachment process. By the standards Republicans have set, no evidence short of an admission by Trump that he abused his office and obstructed Congress in violation of the Constitution would suffice to prove his guilt. Never mind that, if a full confession were required to convict in criminal trials, the nation’s prisons would be largely empty.

Of course, a slew of direct evidence bolsters the first article of impeachment, including the notes of Trump’s July 25 call with Ukrainian President Volodymyr Zelensky, in which he asked for the “favor” of investigating former Vice President Joe Biden’s family; Ambassador Gordon Sondland’s testimony that Trump asked about the Biden investigations on a call the next day; Trump’s own public admission that he decided to withhold $391 million in Ukrainian aid in advance of the July 25 conversation; and his self-incriminating September 18 statement, after a reporter asked about the Zelensky call, that “someone ought to look into Joe Biden.”

If Trump escapes removal, as expected, the net effect of his impeachment will be that an extraordinarily well-documented misuse of presidential powers for personal gain does not warrant removal from office.

In short, history is throwing a one-two punch at the legislature’s power to impeach a president. Crimes are not enough without abuse of office, and abuse of office is not enough without crimes. (Even a documented abuse of office accompanied by proof of crimes probably wouldn’t have swayed Republicans in the current Senate. Bribery is both a crime and an express constitutional basis for impeachment, and Democrats could have impeached Trump on that ground, but the effect would likely be no different.) As a result, Americans might as well grab a permanent marker and cross the word impeachment out of the Constitution’s text, at least as it relates to presidents.

To be sure, this would not be the first constructive amendment of the Constitution—that is, one that altered the basic workings of the federal government through day-to-day practice, bypassing the laborious constitutional process of securing two-thirds of both houses of Congress and ratification by three-quarters of the states. Congress’s exclusive power to declare war has been eroded as lawmakers have deferred to the White House on military intervention after military intervention. Under the current administration, Congress has all but conceded the emoluments clause, any plain reading of which would prevent Trump’s family business from accepting payments from foreign governments. The appropriations clause prohibits Trump from paying for a border wall by unilaterally diverting money away from congressionally authorized uses, but this clause, too, is succumbing to neglect.

The peculiar problem with excising impeachment from the Constitution, though, is that it will dramatically enlarge one branch of government over the others. The Department of Justice has long taken the institutional position that the judicial branch cannot be invoked to prosecute crimes by a president in office. The Nixon-era announcement of that internal policy left the legislature as the only remaining check that can ensure that the president is subject to the law. This safeguard will vanish, too, if the Senate lets Trump off.