Trump’s speech before Capitol riot does not constitute “Treason, Bribery, or other high Crimes and Misdemeanors.”
Any effort to impeach the president for comments made to Washington demonstrators would be flatly unconstitutional…
The Constitution permits impeachment and removal of the president for “Treason, Bribery, or other high Crimes and Misdemeanors.”
There’s no reasonable claim that President Donald Trump’s speech, which largely focused on disputed, but credible, claims of election irregularities, was treasonous or involved a bribe. And in the absence of proof of deliberate incitement to riot, it wasn’t a “high Crime.”
So, as in the former Trump impeachment, the only potential basis for removal from office would be commission of a “high … Misdemeanor.” (We know from founding-era evidence that in the Constitution the adjective “high” modifies “Misdemeanor” as well as “Crime.”)
The previous impeachment proceedings were marked by a debate over the meaning of the phrase “high misdemeanor.” Each of the four academic experts who testified at the House of Representatives Judiciary Committee offered their own definitions. The prosecutors and the president’s defense team offered their own definitions, too.
This disagreement reflected an academic dispute that had been going on for many years. Based on incomplete surveys of the founding-era record and on British impeachment trials, researchers had reached very different conclusions about the meaning of “high misdemeanor.”
Unfortunately, however, almost no researcher (including me) had thought to examine the sources that might define the phrase authoritatively. Those sources were 18th century English and American law books.
The Constitution is first and foremost a legal document—the “supreme Law of the Land.” Most of its framers were lawyers, as were most of those who explained it to the general public. Moreover, at the time the American general public was unusually knowledgeable about law.