Article III, Section 3 states: “Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort.”
President Donald Trump’s criticism of our allies, coupled with his kind words about Russian President Vladimir Putin, have brought calls of “treason” from lawmakers, former intelligence officials and some news commentators.
Could Trump’s actions provide a legal basis for impeachment under Article II, Section 4, of the Constitution, which provides for removing the president and other officials “on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”?
The answer is “yes.” And that’s based on English and American impeachment law reaching back to the 14th century.
The first recorded impeachment in our political tradition was the impeachment of Baron William Latimer, who was constable of Dover Castle and the warden of five fortified English ports. He was also involved in the English occupation of Brittany, in France.
When Parliament convened in 1376, it accused Latimer of selling the castle of Saint-Sauveur to the enemy (the French), and impeding the relief of a walled town in Brittany that was under French attack. The charges were proven, and he was removed from office, fined and imprisoned.
English impeachment by Parliament is the direct ancestor of impeachment under America’s constitution. There is debate about what exactly constitutes a “high crime or misdemeanor.” Gerald Ford, as House Minority Leader in 1970, asserted that “an impeachable offense is whatever a majority of the House … considers it to be at a given moment in history.”
Harvard law professor and Supreme Court Justice Joseph Story wrote in 1833 that many crimes would not necessarily constitute grounds for impeachment. He wrote: “The power [of impeachment] partakes of a political character, as it respects injuries to the society in its political character.” Justice Story’s point was that impeachment was a political process to remove people from office who have acted to endanger the country and our political system.
The Founders meant “high crimes and misdemeanors” to include what the late Yale Professor Charles Black in 1974 called acts or offenses “(1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor, or to a good citizen.”
On the other hand, it’s clear that incompetence and lousy leadership do not constitute a high crime and misdemeanor.
While people can disagree about what is or isn’t a “high crime or misdemeanor,” treason is pretty straightforward. Article III, Section 3 states: “Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and Comfort.”
And that’s why the House of Representatives, which has the power to impeach a president, would be completely within bounds if it chose to impeach Trump for doing the sorts of things Baron Latimer was charged with back in 1473: adhering to the enemy, and giving them aid and comfort.