To impeach Donald Trump on the Ukraine episode, Turley elaborated, would be to render every future president vulnerable to impeachment inquiries, with metastasizing divisiveness and dysfunction as the price paid by the public and the government.
He’s right, of course. Nevertheless, you can’t fix the problem with an abstract legal definition of an impeachable offense. With all the ostentatious reverence on display for Madison on Wednesday, mightn’t we have the humility to agree that we are not smarter than he and the other Framers were? No matter how clever a lawyer you may be, you keep circling back to the same problem they faced: Maladministration is what you’re trying to target, but if you call it “maladministration,” you are going to sweep in low-grade misconduct, making every president impeachable; so you go with “high crimes and misdemeanors,” which sounds more grave, but when asked to define it you keep coming back to maladministration.
It’s the same kind of problem the Supreme Court wrestled with in the aforementioned 1964 obscenity case. It sounds like a legal problem, but it was shot through with culture and politics, too. The courts felt compelled to account for community standards in defining pornography because what was criminally obscene in Talladega was not necessarily obscene in Times Square. It was easy to spot something egregious using common sense; it was much harder to fashion a definition that fit all displays at all times in every place. When Justice Stewart threw up his hands, he wasn’t saying there was no criminal obscenity; he was saying people could be trusted to recognize it when the real thing reared its head.
The wisdom of the Framers on this score is that they didn’t allow themselves to be trapped into semantic games.