LogFAQs > #933329673

Ok, so I've heard a really bad argument that's been making the rounds lately which I want to address, which is the idea that because the Constitution does not specify what is an impeachable offense, the Senate cannot dismiss the articles of impeachment for failure to charge an impeachable offense.

The Constitution gives the House the sole power to charge impeachments and the Senate the sole power to try them. That means that they both have a role in deciding what is an impeachable offense. Both of them have to agree than an act is impeachable for anyone to be convicted for that act. If the House doesn't think an act is impeachable it won't impeach. If the Senate doesn't it won't convict. This mirrors the usual relationship between a grand jury and a court of law - if the grand jury doesn't believe there was a crime, it won't indict, and if the court believes that the grand jury indicted for an act that is not a crime, it will dismiss the case.

The Senate absolutely has the power and obligation to determine the meaning of "treason, bribery, and other high crimes and misdemeanors." The House determination of the meaning of this phrase is not binding on the Senate and never could be. So all the articles I've seen in the media arguing that the Senate cannot interpret the Constitution are ridiculous, and their attempts to attack Trump's lawyers for making bad arguments are even worse. The media people make a contention about the state of the law (an opinion) as if it were a fact, then attack others for disagreeing with them.

And yes, that means that the Senate can decide that engaging in a quid pro quo with a foreign government is not impeachable, but lying about an affair is. They could, but in fact they did decide 20 years ago that lying about an affair was not impeachable.


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September 1, 2003; November 4, 2007; September 2, 2013
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