So what about impeachment?

The Comey prosecution is also a high crime and misdemeanor

We come to the end of our week-long deep dive into the Comey prosecution. I hope it has been both informative and a roadmap for the key twists and turns ahead.

Before turning to the final topic, I have to again put down the marker that the Comey prosecution is the single most shameful act in the Department of Justice’s history. We have crossed a very basic line of constitutional rule. That the President could order criminal charges without evidence against a political enemy means the DOJ has hit rock bottom.

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So now let’s use this final discussion to push ahead into the not-so-distant future, January 2027. Suppose (and not just suppose, but work our butts off to make it happen) that by the lights of Lincoln, Martin Luther King, and all that is good in the country, the 120th Congress has a healthy Democratic majority in the House of Representatives.

In that event, a third impeachment of Donald Trump will almost certainly be on the table. That’s not just political payback, though Trump has given more than enough provocation. In his first eight months of hits term, Trump has done incalculable damages to constitutional rule. He hasn’t just pushed the boundaries of the Overton window — he has shattered the entire window. Astonishingly, his steady run of high crimes and misdemeanors has washed over Congress with barely a ripple.

The case for impeachment goes well beyond partisan revenge. It rests on conduct that once would have shocked our national conscience, but that we now seem oddly numb to, as though each fresh outrage were just another normal day.

Take his repeated violations of the Emoluments Clause, which independent reviews estimate brought him at least $7.8 million — and possibly closer to $13.6 million — during his presidency. That’s just the first that comes to mind among a series of other potential articles.

But the question today is whether reprisal prosecution of Comey itself qualifies as a high crime and misdemeanor.

It 100% does.

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There’s a general sense after the bedlam of the Trump impeachments that high crimes and misdemeanors—conduct justifying impeachment—are whatever the Senate says. That’s not quite true. Over two centuries, a kind of common law of impeachment has developed. Johnson’s acquittal established that a president should not be removed over mere policy differences. Clinton showed impeachment shouldn’t rest on private misconduct.

Trump’s raw reprisal prosecution of Comey, by contrast, is exactly what the Framers envisioned as an impeachable offense: an abuse of public trust and a corruption of government power for petty revenge.

In Federalist 65, Hamilton defined impeachable offenses as “the abuse or violation of some public trust” — political offenses that “relate chiefly to injuries done immediately to the society itself.” What could fit more perfectly than a president turning prosecutors loose on his enemies? This is no ordinary crime, nor even standard corruption like pocketing bribes. It is the deliberate weaponization of government’s prosecutorial power to punish dissent and entrench personal authority.

Other Framers underscored the same point. Mason warned that treason and bribery were too narrow, and that a president might “commit the most extensive injustice.” Madison insisted impeachment must reach “incapacity, negligence or perfidy,” lest the president pervert his administration into “a scheme of peculation or oppression.” Edmund Randolph, at the Virginia ratifying convention, emphasized impeachment as a necessary check against executive abuses that could undermine the Constitution itself.

Closer to our day, Richard Nixon’s brush with impeachment reinforces the point that it’s about abuse of public trust, and the sort of contempt for the constitution that Trump has displayed. When Nixon faced impeachment in 1974, one of the House Judiciary Committee’s articles was precisely this: misuse of the DOJ, CIA, and FBI to harass political opponents. That abuse — not the burglary itself — was what convinced members of both parties that his presidency was unsalvageable.

Trump’s abuse of executive power to pursue political enemies is a more paradigmatic high crime and misdemeanor than his infamous boast about shooting someone on Fifth Avenue. Regular crimes can be punished by criminal law; impeachment is the remedy for corruption of the public trust.

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There’s a reason that dictators around the world begin by arresting their critics. The selective prosecution of political opponents corrodes democracy at its root. If a president can deploy the DOJ to harass enemies and shield friends, the rule of law collapses into the rule of one man.

This prospect is far from abstract. Imagine being a political rival of Trump and facing indictment not for breaking the law, but for crossing him. The effect on dissent, accountability, and civic courage would be cataclysmic. The Framers had seen this story before in the abuses of the Stuart kings and prosecutions of dissenters under English law. That is precisely why they built impeachment into the Constitution.

Impeachment is not for bad policies, clumsy leadership, or even incompetence. A president can’t be impeached simply because Congress dislikes his judgment. But ordering meritless prosecutions is not a matter of judgment; it is a grave betrayal of the constitutional promise of equal justice under law. Hamilton’s phrase — “abuse or violation of some public trust” — fits it exactly.

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Impeachment is the Republic’s ultimate defense against constitutional injury. It’s not to be used cavalierly. The framers feared it would inflame passions and divide the nation. But they feared more an executive who abused power with impunity.

Ordering meritless prosecutions of political enemies is not politics as usual. It is the “high crime” the framers feared most. It degrades the office, betrays the public trust, and reduces the rule of law to the rule of men — petty, vicious men at that.

If that’s not impeachable, then nothing is—except, maybe, losing an election and trying to overthrow the government to stay in power… but what president would ever do that?

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Now for some much-needed lighter fare:

In last week’s roundtable, I spoke with Jonathan Alter, Paul Fishman, and Mimi Rocah about the seismic impacts the James Comey indictment will have on the rule of law, as well as the burgeoning bribery scandal surrounding border czar Tom Holman.

It remains to be seen whether either or both of these scandals will have lasting impacts on Trump. The one scandal that seems to have staying power is the Epstein scandal and Trump’s involvement in it. This was on clear display as a gold statue of Trump and Epstein holding hands was placed on the National Mall before being summarily removed. So, we asked our guests to weigh in in five-words-or-fewer: where’s the Statue now? Catch our guest’s answers at the 53:30 mark of the episode, “Comey Before the Storm.”

It turns out, in actuality, the statue has returned to the mall as of Thursday, October 2. But don’t let that stop you from getting your creative juices flowing.

Now it’s our listeners turn to weigh in. Drop us your best answer in five words or fewer for a chance to win a Talking Feds mug. Submit your answer here. Anyone is free to enter, but being a paid subscriber gives you a better shot at being picked.

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And we’ve got to announce last time’s winner!

After the Department of Defense’s rebrand to the Department of War, the last contest asked what Department or Agency will be renamed next and to what. Our winner was Suzanna, who picked the Department of Education, soon to be dubbed “The Dept. of Duh.” Congratulations! A member of our team will be in touch shortly to send you your highly coveted Talking Feds mug.

Talk to you later.