By Andrew Cohen
These days, a well-reasoned and measured analysis of the impeachment process seems as likely as Mitch McConnell and Adam Schiff taking a weeklong cruise together. Yet that’s what made a recent panel discussion at Berkeley Law all the more refreshing and insightful.
Three prominent scholars shared their vast knowledge about impeachment, from its historical origins to its present application, tapping their expertise without stoking the coals of partisan rancor that seem to envelop the issue at every turn.
Burt Neuborne (Berkeley Law visiting professor and founding legal director at the New York University School of Law’s Brennan Center for Justice), John Eastman (Chapman University Fowler School of Law professor and former dean), and Gary Schmitt (resident scholar in strategic studies and American institutions at the American Enterprise Institute) held court before a packed crowd of students.
Moderated by Steven Hayward, senior resident scholar at UC Berkeley’s Institute of Governmental Studies, the panel illuminated several intriguing aspects of impeachment’s constitutional roots and subsequent arc.
“The impeachment clause wasn’t added until very late in the Constitutional Convention,” Schmitt noted. He described the 11th-hour scramble in which drafters such as George Mason noted the dangers of listing only treason and bribery as valid causes for impeachment.
Setting the bar
When Mason suggested adding “maladministration and misconduct” to the list, however, others such as James Madison argued that was too low a bar—and could be interpreted to allow simple policy disagreements to be impeachable. As a result, the now famous “high crimes and misdemeanors” category was established.
“There’s always been a debate about what that actually means,” Schmitt said. “I think it was designed to mean something that’s legal on its face but done for illicit purposes.”
Eastman explained how the founding fathers aimed “to free up legislatures to impeach when necessary without turning things into a partisan witch hunt. The ‘maladministration’ language survived in some state conventions, but those states still worked hard not to go there.”
The scholars agreed that while impeachable conduct need not rise to the level of a legal crime, it must be more than merely politically objectionable. Exploring impeachment through a litigation lens, Neuborne said a low threshold for impeachment charts a course toward parliamentary regimes, where presidents must continually justify their policy decisions to legislators.
“What’s key here is the president’s motive,” he said of President Donald Trump allegedly trying to coerce Ukraine into providing information that would harm Joe Biden’s presidential candidacy by withholding military aid. “What did the president actually believe when he did this? Did he believe he was rooting out corruption in a foreign nation and efforts to meddle in our elections, or did he think he was advancing his political agenda through bribery?”
Recent and historical comparisons
Neuborne added that the questions parallel Trump’s travel ban earlier in his administration, when residents of seven Middle Eastern countries were barred from entering the U.S. “Did he want to protect national security or did he want to keep out Muslims? That’s why the Senate needs to hear from witnesses.”
The panelists agreed that in many respects, impeachment should be conceived as a criminal proceeding. Still, there was debate about whether the burden of proof for conviction and removal should be “beyond a reasonable doubt”—like it is in criminal cases—or a less demanding “clear and convincing” standard.
Eastman noted how George Washington was concerned that allowing Congress to interfere with the President in foreign affairs would impede his authority granted in Article II of the Constitution. He said Trump does not want to allow key documents introduced or certain witnesses to testify because that would “compromise his ability to engage in foreign affairs. I think it’s exactly the model Washington set out.”
Neuborne said that while Trump’s actions could well be impeachable conduct, he would vote against convicting him, in part because it would risk a major increase in volatile resentment and division.
“On the eve of a national election, I think the real jury here is the American people,” he said. “That’s why the President wants no evidence to come out. We all know he’ll be acquitted in the Senate, but will he be convicted in the hearts of minds of the American people?”