quote:

Is it an impeachable offense?

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It is, of course, the question that must be asked. That does not make it a fair question. It is unfair because it assumes a fact that is not in evidence, namely: that we have a working definition of an impeachable offense on which there is agreement – or at least something close to consensus. We don’t.

In fact, even that explanation of the problem is misleading. To have a “working definition” in this context implies that we are dealing with a legal reality – as if the question were, Is it a contract? Or, Is it a homicide? A contract or a homicide is a legal designation with a settled definition applicable in all circumstances.

By contrast, an impeachable offense is not a legal designation. It is, in our system, a political conclusion.

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The “impeachable offense” question comes down to whether a president’s alleged misconduct amounts to “high crimes and misdemeanors.” On this, the Framers believed they had a legal definition, although one more elastic than those that define offenses in the penal code. As Hamilton put it in “Federalist 65,” high crimes and misdemeanors are offenses that:

"...proceed from the misconduct of public men, or in other words from abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they chiefly relate to injuries done immediately to the society itself."

Legally, then, impeachable offenses need not be courtroom-prosecutable crimes. They are in the nature, instead, of abuses of power, derelictions of the office holder’s fiduciary duties.

Sounds straightforward enough. Except it’s not. The Framers, you see, did not leave impeachment to judges. They left it to Congress, i.e., to a *political branch.* And because they feared that this could give the legislature too much power over the executive, or that a politicized faction in Congress could exploit the impeachment power frivolously against a rival president, they made impeachment-and-removal very difficult to do.