One frequently hears that impeachment is a “political question,” not a legal one. After all, Congress, which brings impeachment proceedings, is a political body. Then minority leader of the House Gerald Ford even claimed in 1970 that the grounds for impeachment are whatever the House takes them to be by voting for an indictment.

But impeachment should be a matter of law.

The Constitution does not say that the President can be removed whenever one-half of the House and two-thirds of the Senate want to do so. It specifies legal bases for pursuing it: “Treason, Bribery or other high Crimes and Misdemeanors.” The text commands the Senate to “try” the case referred to it by the House. It requires Senators to take a special oath to apply the law of the Constitution. It provides that the trial is presided over by the Chief Justice. In “Federalist No. 65,” Alexander Hamilton took pains to show that the Senate can in fact act in “their judicial character as a court for the trial of impeachments.”

The politicization of impeachment stems in part from the phrase “other high Crimes and Misdemeanors.” Treason and bribery are clear-cut. But treason is only applicable in wartime and proving bribery requires evidence of a corrupt motive, which is usually hard to find. So nine days before the Framers signed the Const

Read More