Adjunct Professor Jerry Goldfeder addresses various legal issues relating to the impeachment process in the first installment of his “Impeachment Sidebar” series, set to run for the next several months in the New York Law Journal.
Impeachment is no made-for-TV drama, however. There is no pre-ordained script, and the House of Representatives’ inquiry has already encountered recalcitrant witnesses and a slew of legal proceedings. One does not have to be partisan to acknowledge that an unobstructed inquiry is essential for the House to fulfill its constitutional obligation. After all, our Founders included this sanction as a safety-valve against a president (and other “civil officers”) who abused power. James Madison said it this way: Impeachment was “indispensable” to defend us from the “perfidy of the chief Magistrate.” Ben Franklin thought impeachment was “favorable to the executive” to avoid the recourse of assassination. And like English impeachments dating from the 1300s, this constitutional provision was to be employed only to remedy the most egregious conduct.
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So as the current impeachment inquiry moves forward, and the House marshals the facts, a central question for it will be whether the ascertained conduct of President Trump constitutes an impeachable offense; and, if the House passes articles of impeachment, the question for the Senate will be whether such articles warrant removal from office and disqualification from holding future office.
These and other legal issues will be addressed in subsequent Sidebars.