The Constitutional Case: What Does “High Crimes and Misdemeanors” Actually Mean?

By Cliff Potts, CSO, and Editor-in-Chief of WPS News

Baybay City, Leyte, Philippines — August 25, 2026

Donald J. Trump has already been impeached twice. He was acquitted twice. He returned to the presidency anyway.

Now, during Trump’s second administration, members of Congress have again introduced articles of impeachment. That raises a question more important than whether Americans like or dislike Donald Trump: What conduct actually justifies removing a president under the Constitution of the United States?

That is where this series must begin.

The Constitution does not say that presidents may be impeached because they are unpopular, offensive, dishonest, incompetent, reckless, or politically objectionable. Nor does it say that impeachment requires prosecutors first to prove a violation of the federal criminal code. Article II establishes a different standard: the president may be removed following impeachment and conviction for “Treason, Bribery, or other high Crimes and Misdemeanors” (U.S. Const. art. II, § 4).

Understanding those last five words is essential. Without that foundation, a discussion about impeaching Trump for a third time becomes little more than another partisan argument. With it, however, Congress and the public can ask a considerably more serious question:

Has Donald Trump used the powers entrusted to the presidency in ways sufficiently dangerous to the constitutional order to constitute high crimes and misdemeanors?

Impeachment Is Not an Ordinary Criminal Trial

One of the most persistent misconceptions about impeachment is that a president must commit an indictable criminal offense before Congress can act.

That is not the historical standard.

The Congressional Research Service notes that the phrase “high Crimes and Misdemeanors” descended from English parliamentary practice and historically encompassed serious abuses of governmental office, including corruption, misuse of public funds, neglect of duty, violations of legislative rights, abuses of official power, and betrayals of the public trust (Congressional Research Service [CRS], 2025).

Congress’s own Constitution Annotated reaches much the same conclusion. American impeachment practice has included misconduct involving abuse of official authority, behavior fundamentally incompatible with the responsibilities of office, and use of office for improper or personal purposes (Library of Congress, n.d.-a).

That distinction is crucial.

A president could theoretically violate a criminal statute without committing an impeachable offense. Conversely, a president could commit a profound abuse of constitutional authority without the conduct fitting neatly within a particular criminal statute.

Alexander Hamilton anticipated precisely this problem in Federalist No. 65. He described impeachable offenses as arising from misconduct by public officials and from the “abuse or violation of some public trust” (Hamilton, 1788/1961).

The emphasis is on public trust.

Impeachment therefore exists not simply to punish wrongdoing but to protect constitutional government from an officeholder who abuses the extraordinary powers entrusted to that office (CRS, 2025; Library of Congress, n.d.-b).

The Framers Deliberately Rejected Impeachment for Mere Bad Government

There is an equally important limitation.

The Framers did not intend impeachment to become a congressional vote of no confidence whenever Congress disliked a president.

During the Constitutional Convention, George Mason proposed including “maladministration” among the grounds for impeachment. James Madison objected that such a broad term could effectively make a president dependent upon the pleasure of the Senate. The Convention instead adopted “high Crimes and Misdemeanors,” thereby demanding something more serious than incompetence, policy disagreement, or ordinary political failure (CRS, 2025).

That principle matters enormously when discussing Trump.

Disagreeing with Trump’s immigration policies is not, by itself, grounds for impeachment.

Disagreeing with his tariffs is not grounds for impeachment.

Disliking his foreign policy is not grounds for impeachment.

Finding his rhetoric offensive is not grounds for impeachment.

Voting against him is politics.

Removing him through impeachment requires something more.

The constitutional issue begins when presidential conduct arguably crosses from controversial policy into abuse of governmental power, corruption, obstruction, violation of constitutional responsibilities, or betrayal of the public trust (Library of Congress, n.d.-a; CRS, 2025).

That is the line this series will investigate.

Donald Trump Is Already an Extraordinary Constitutional Case

No American president has occupied Trump’s position in constitutional history.

The House first impeached Trump on December 18, 2019, for abuse of power and obstruction of Congress. The Senate acquitted him on February 5, 2020 (U.S. House of Representatives, 2026; U.S. Senate, 2020).

The House impeached him again on January 13, 2021, this time for incitement of insurrection following the attack on the U.S. Capitol on January 6. The Senate trial ended with 57 senators voting guilty and 43 voting not guilty—ten votes short of the 67 required for conviction (U.S. House of Representatives, 2021; U.S. Senate, 2021).

That vote deserves particular attention.

Trump was acquitted. That is the constitutional result and should be stated plainly.

But 57 senators—including seven Republicans—voted to convict him (U.S. Senate, 2021). The result therefore cannot accurately be described as a determination that Trump’s conduct was universally considered acceptable or harmless.

Indeed, some senators who voted to acquit explicitly condemned Trump’s behavior while arguing that the Senate lacked constitutional authority to convict a former president. Republican Senator John Thune, for example, said his acquittal vote should not be understood as exoneration of Trump’s conduct surrounding January 6 (Thune, 2021).

The Senate had separately voted 56–44 that a former president could constitutionally be tried for acts committed while president, but that procedural dispute remained central to the defense offered by several senators who ultimately voted for acquittal (U.S. Senate, 2021b).

That history matters because Donald Trump did something unprecedented afterward:

He returned to the presidency.

January 6 Is History, but It Is Not Irrelevant

January 6, 2021, cannot simply be recycled as a new impeachable offense in 2026.

Trump was already impeached for conduct associated with that event. The Senate already tried him. It acquitted him (U.S. House of Representatives, 2021; U.S. Senate, 2021a).

But that does not make January 6 irrelevant.

It becomes part of the historical record against which later presidential conduct can be evaluated.

If Congress investigates whether a president is abusing power, attempting to place himself beyond legal restraint, obstructing constitutional institutions, or using government authority against perceived enemies, previous confrontations with constitutional restraints may become relevant to understanding the seriousness and pattern of later conduct.

That is different from trying Trump twice for the same conduct.

The question in 2026 must be whether conduct during the current presidency independently meets the constitutional threshold for impeachment.

And Congress has already begun asking exactly that question.

A Third Impeachment Is No Longer Merely Hypothetical

On April 28, 2025, Representative Shri Thanedar introduced H.Res. 353, formally titled Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors (U.S. House of Representatives, 2025).

The resolution proposed multiple articles involving allegations of obstruction and abuse of executive power, usurpation of congressional authority, violations of due process, attacks on freedom of expression and other abuses of presidential authority (U.S. House of Representatives, 2025).

The existence of an impeachment resolution does not prove the allegations contained within it.

That distinction is essential.

Members of Congress can introduce resolutions for political as well as constitutional reasons. An accusation contained in an article of impeachment is still an accusation until the underlying evidence is examined.

But H.Res. 353 demonstrates something important: the constitutional question this series is examining is already before Congress.

The issue is therefore not whether somebody could imagine impeaching Donald Trump again.

Some members of Congress already have.

The real question is whether the evidence supports them.

Criminality and Impeachability Are Different Questions

This distinction will become increasingly important as this series examines Trump’s broader legal history.

A criminal conviction does not automatically establish an impeachable offense. Likewise, the absence of a criminal conviction does not automatically establish that presidential conduct is constitutionally acceptable.

The Constitution treats the two processes separately. Article I specifically provides that impeachment judgments do not prevent the person convicted by the Senate from later being “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law” (U.S. Const. art. I, § 3, cl. 7).

That separation is deliberate.

Criminal courts determine criminal liability.

The House determines whether an official should be impeached.

The Senate determines whether that official should be convicted and removed.

Those institutions answer related but fundamentally different questions (Library of Congress, n.d.-b).

For Donald Trump, therefore, criminal cases, civil judgments, January 6, presidential actions, executive orders, conflicts with Congress, confrontations with courts, foreign-policy decisions, and alleged uses of governmental power for personal or political purposes cannot simply be thrown into one enormous pile labeled “impeachment.”

Each must be examined individually.

The evidence must be separated from rhetoric.

The constitutional significance must be established.

And Trump’s defenses must be considered alongside the accusations.

Anything less would turn impeachment into precisely the partisan weapon the Framers feared.

The Question This Series Will Ask

Over the next nine Tuesdays, WPS News will examine whether a credible constitutional case exists for the third impeachment of Donald J. Trump.

The standard will not be whether Trump is a good president.

It will not be whether his policies are progressive or conservative.

It will not be whether Democrats despise him or Republicans defend him.

The standard will be whether documented conduct constitutes the kind of serious abuse of official power, corruption, obstruction, constitutional violation, or betrayal of public trust historically encompassed by “high Crimes and Misdemeanors” (Hamilton, 1788/1961; CRS, 2025; Library of Congress, n.d.-a).

That requires evidence.

It also requires restraint.

Where allegations are unproven, they will be identified as allegations. Where courts have ruled, those rulings will be identified. Where constitutional scholars disagree, that disagreement will be acknowledged. Where the administration offers a substantive defense, that defense belongs in the record.

The purpose is not to manufacture an impeachment case.

The purpose is to determine whether one already exists.

The Cost of No Accountability

There is another question running underneath this entire series.

What happens if presidential misconduct repeatedly produces no lasting constitutional consequence?

Trump’s first impeachment ended in acquittal (U.S. Senate, 2020). His second impeachment ended in acquittal despite a 57-vote Senate majority favoring conviction (U.S. Senate, 2021a). He subsequently returned to the presidency.

That does not itself prove that either acquittal was constitutionally wrong. Senators had the authority to vote as they did.

But the cumulative precedent matters.

A constitution is not self-enforcing.

Words written on parchment cannot physically restrain a president. The separation of powers functions only when institutions exercise the powers given to them. Courts must issue judgments. Congress must legislate and conduct oversight. Elections must transfer authority. Executive officials must obey lawful constraints. And when an officer commits conduct serious enough to constitute a high crime or misdemeanor, Congress must decide whether impeachment is warranted.

The danger is larger than Donald Trump.

If conduct once considered disqualifying gradually becomes survivable, and conduct once considered an abuse of power becomes merely another partisan controversy, the practical limits surrounding the presidency change without a single word of the Constitution being amended.

Future presidents notice precedents.

They notice what previous presidents were allowed to do.

They notice which boundaries were enforced and which boundaries existed only on paper.

That is why impeachment was placed in the Constitution in the first place. It is not simply a mechanism for punishing an individual. It is one of the structural defenses intended to prevent executive power from overwhelming republican government (Library of Congress, n.d.-b; CRS, 2025).

The central question of this series is therefore not simply:

Has Donald Trump committed impeachable offenses?

There is a second question behind it:

If a president can repeatedly test the boundaries of constitutional power without meaningful accountability, what will those boundaries mean to the next president—and the president after that?

That may ultimately be the more important question.

References

Congressional Research Service. (2025). Impeachment and the Constitution (R46013). U.S. Congress. Congressional Research Service report

Hamilton, A. (1788/1961). Federalist No. 65. In C. Rossiter (Ed.), The Federalist Papers. New American Library.

Library of Congress. (n.d.-a). Overview of impeachable offenses. Constitution Annotated. Constitution Annotated: Overview of Impeachable Offenses

Library of Congress. (n.d.-b). Overview of impeachment clause. Constitution Annotated. Constitution Annotated: Overview of Impeachment Clause

Thune, J. (2021, February 13). Thune statement on conclusion of Senate impeachment trial. United States Senate. Senator Thune statement

U.S. House of Representatives. (2021, January 13). Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors (H. Res. 24, 117th Cong.). U.S. Government Publishing Office. H.Res. 24 official record

U.S. House of Representatives. (2025, April 28). Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors (H. Res. 353, 119th Cong.). H.Res. 353 official text

U.S. House of Representatives, Office of the Historian. (2026). List of individuals impeached by the House of Representatives. House impeachment history

U.S. Senate. (2020, February 5). Senate floor activity: Wednesday, February 5, 2020. First Trump impeachment trial record

U.S. Senate. (2021a, February 13). Roll call vote 117th Congress—1st session: Vote 59. Senate impeachment verdict, 57–43

U.S. Senate. (2021b, February 9). Roll call vote 117th Congress—1st session: Vote 57. Senate jurisdiction vote, 56–44

U.S. Constitution, art. I, § 3, cl. 7; art. II, § 4.