Fox News is digging deep in response to the news that House Republicans are considering an impeachment inquiry against President Joe Biden, digging to find some loophole to prosecute the president.
In a new article that sounds like a law school prompt, Fox asks openly “can congressional lawmakers initiate [impeachment] for alleged treason, bribery, or high crimes and misdemeanors that transpired before holding the office of the presidency?”
The answer, according to Harvard Law professor and famous defense lawyer Alan Dershowitz is “clear”: “No one knows.”
Language of the Constitution
Article II, Section 4 of the US Constitution relates to impeachment. The language reads as follows: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The language does not specify a timeline for the treason, bribery, or other high crimes and misdemeanors. To trigger impeachment, do the crimes in question need to take place while the office-holder is in office? Or can the crimes have taken place before the office-holder was in office?
Naturally, a legal fellow from The Heritage Foundation favored a broad interpretation of the text. “The crucial impeachment language in the Constitution is not limited to ‘high Crimes and misdemeanors’ committed while ‘in office.’ That language is not there.”
And here’s a Fox News contributor weighing in. “When you ask lawyers these questions, what they tend to try to suggest is this is controlled by legal rules and, therefore, they propose that the abuse of power that rises to the level of ‘high Crimes and misdemeanors’ has to occur when the person is president – it has to be an abuse of presidential power. The fact of the matter, though, is that impeachment is not controlled by legal rules but political rules.”
That sounds like wishful thinking, doesn’t it? I’m not really sure how qualifying impeachment as legal or political would affect the textual analysis of the temporal requirements of Article II, Section 4. You can call impeachment whatever you want – legal, political – but regardless, the Constitution governs the impeachment process. So what are we talking about?
The Fox News contributor continues and begins to make more sense: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history. The Constitution specifically assigns to Congress the determination of whether impeachable offenses were found, and, under separation of powers, the court stays out of it. Politically speaking, it is whatever Congress says it is.”
Okay, there it is. The guy is saying that the language of the Constitution doesn’t matter. Congress can do whatever they want. Well that philosophy is very much at odds with the conservative dogma of adhering strictly to the text of the constitution. And aside from violating conservative dogma, you’d think this guy would have more respect for the precedent he’s suggesting that the Republican-led House sets. The Democrats were out of control when they impeached Trump (once on the basis of the pernicious conspiracy theory that Trump was beholden to Russia), but at least they tried to make the whole proceeding seem Constitutional.
This guy is suggesting the Republicans just go for it and figure out the constitutional implications later.
Harrison Kass is the Senior Editor and opinion writer at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.
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