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[Tyrone Slothrop]

Don't overlegalize impeachment.

In a hyperpolarized political environment, it’s tempting to analyze all problems through a legal lens. The law is one of the few American institutions remaining with a claim to legitimacy, which it maintains by virtue of its neutrality. But it shouldn’t be the only standard by which presidents are judged. The purpose of the criminal law is to decide who goes to jail; the question of what counts as a “high crime and misdemeanor” is meant to determine when a chief executive is no longer fit for office. There is obviously some overlap, but criminality is neither necessary nor sufficient. And although impeachment is an inherently political process, that doesn’t mean it is any less legitimate or less respectful of the rule of law than is the criminal process. Long-standing constitutional norms counsel against using impeachment except in the gravest of circumstances and certainly not as a tool of partisan warfare. The Clinton impeachment suggests that voters will punish politicians who push impeachment for frivolous reasons. And the high procedural barriers—impeachment by House majority followed by removal by two-thirds of the Senate—ensure a kind of due process, both for the president and for the people who voted for him.

There will be time to sort out the issues of legal criminality; impeachment doesn’t preclude that, and it may well turn out that Trump broke the law. But right now the focus should be on whether Trump satisfied his constitutional duties: to “take care that the laws be faithfully executed” and to “preserve, protect and defend the Constitution of the United States.” We won’t need the criminal law to know if he’s failed.