An Immodest Proposal

“Sen. Tim Scott Says Trump 'Innocent,' 'No Way' Senate Convicts” https://t.co/P6ONkI8n0P

— Donald J. Trump (@realDonaldTrump) December 1, 2019

"High crimes and misdemeanors" means what Congress wants it to mean, but it doesn't have to. It could mean whatever crime the POTUS or Vice-POTUS has been convicted of while in office. And there's every reason to assume the Constitution is meant to be read that way.

First, there's simply legal history. Art. III judges can't be forced from office except by impeachment. Judges convicted of bribery are removed rather quickly by impeachment and conviction, where the latter is basically Senate confirmation of the House action. A Presidential impeachment trial must be presided over by the Chief Justice, so the occasion may be more august and may even resemble an Art. III court trial. But it could come after such a trial, too.

The Constitution rather famously provides the elements for only one crime: treason. Art II says treason is grounds for impeachment and removal from office. So two choices are available: charge a sitting President with treason in the House, convict and remove him in the Senate. But has that President now been found guilty of treason? Yes, and no. A separate trial in a court of competent jurisdiction would be needed to punish the treason under federal law (the Constitution doesn't establish any penalty for treason. That was left to Congress.). And what bars a charge of treason in an Art. III court against a sitting President? Apparently an OLC memo, and nothing more. Which tells you the quality of the legal reasoning in that memo. Do we really have to impeach and convicted a President before he can face charges for treason? Who does that serve? What principle is upheld? How does such punctilio preserve the Constitution, instead of the "office of the President," which has no Constitutional protection or validity? And if you except treason from the memo, how do you close the door on bribery, or other high crimes and misdemeanors?

The Art. II language on impeachment doesn't require an original charge to impeach a President. It says a President can be impeached and removed upon conviction (in a Senate impeachment trial) for treason, bribery, or other high crimes and misdemeanors. But that language does not preclude first bringing criminal charges and, upon conviction, seeking impeachment and removal. The Senate conviction would be on the impeachment charges, not the evidence necessary to establish treason. The fact the Constitution defines treason indicates that definition is not subject to change just because a President is impeached. Congress, in other words, can't redefine treason for purposes of impeachment (not without a whole new constitutional crisis). It might, in fact, be better for the nation that a President is tried and convicted in a court for treason, bribery, or other high crimes and misdemeanors, before being impeached and removed from office. Wouldn't it, in fact, be better to try a President for treason or bribery and then impeach him after conviction? What if the impeachment fails, but the criminal trial ends in conviction? Another impeachment trial? How reliable, how sound, is the system then?

 The crimes are clearly defined in the statutes, the statutes themselves are less subject to critique because the crime alleged applies to the great and small, not just who happens to control which branch of government.  A jury trial, though not without controversy, is seldom dismissed as a political act. A President convicted of a crime in court is a President convicted. Witnesses could not claim immunity from court to court, individual to individual, delaying and blocking testimony for months on end. The rules of evidence and procedure are not ad hoc and so easily challenged, and complaints about process are much harder to raise or use for obstruction or grandstanding. (They are just as possible; I made much of them in my brief but unspectacular legal career. They are also deeply arcane and not ready for prime time. Besides, if a judge says it isn't hearsay, it isn't. EOD.) The matter might go to the Supreme Court before a final verdict was rendered, but the ends of justice would be served more swiftly and surely than the process we have now.

It is perfectly plausible to read Art. II as allowing for the actions of a court of competent jurisdiction before convening a House impeachment hearing. The House is still free to define any criminal conviction as a "high crime and misdemeanor" warranting removal from office. The argument "Was he guilty or was he railroaded?" could still be made after a criminal conviction, but that would call into question the entire legal system. People are used to considering their politicians noble and true, and all others crooks and scoundrels, and so the system corrupt. But judges and juries are not politicians. They are generally held in higher regard and even when controversial, their verdicts are more widely accepted. Besides, if a jury says it's a crime, how likely is either House, even of the President's party, to disagree?

Criminal charges against a President should not be levelled lightly. Then again, neither should impeachment. If Ken Starr couldn't have gotten his perjury claim through a criminal court, why should it get through even the House? This change in approach could actually legitimate impeachment.

Trump has exploited the weaknesses in the system. Maybe it's time to try a different approach to the system.