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Today In Principled Republican Originalism


Alexander Hamilton in Federalist #65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Donald Trump’s “legal” team:

Yesterday, in response to a detailed 111-page brief outlining the House of Representatives’ case for impeachment, President Trump’s legal time filed a six-page response. It is notable primarily for advancing an audacious and highly dangerous constitutional claim: that a president cannot be impeached for any abuse of power.

This argument been been floating around Republican circles for weeks, and received the endorsements of such luminaries as Matt Whitaker and Alan Dershowitz. But two previous letters by Trump denouncing impeachment — while deranged, incoherent, and dripping with monarchial impunity — have not gone so far as to advance this novel argument.

According to its reasoning, a president can only be impeached for a literal criminal violation, the kind of crime for which you or I could be hauled off to the police station. He cannot be impeached for abusing his power. The first article of impeachment “fails on its face to state an impeachable offense,” his lawyers write. “It alleges no crimes at all, let alone high Crimes and Misdemeanors, as required by the Constitution. In fact, it alleges no violation of law whatsoever.” Trump’s lawyers do deny the facts laid out in the indictment, but they argue that even if Trump was guilty of every action of which he was charged, he cannot be impeached for it.

I. myself am not an originalist, so I don’t regard the fact that the framers intended abuses of power to be impeachable dispositive. My main problem with the idea that abuses of power cannot be impeachable defenses is that to state the argument is to refute it.

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