"Political judgment in the United States is in some ways a preventive measure."

—Alexis de Toqueville

Harvard Law Professor Noah Feldman began a recent Bloomberg News opinion piece by saying: "Call me old fashioned or naïve, but I think it is my job is to explain what the U.S. Constitution actually means, no matter who likes it or not." As someone who has studied and judicially applied the Constitution for more than a half of a century, I think "it is my job" to take issue with Professor Feldman's contention that: "[T]he framers' definition of impeachment was a process not just a House vote" and disagree with his conclusion that if the articles of his impeachment are not transmitted by the House to the Senate, "Trump could legitimately say he wasn't truly impeached at all."

The Constitution provides that the House of Representatives has the "sole power to impeach" and whereas the Senate has the sole power to try those impeachments, I know of no Constitutional provision or Supreme Court holding that says there has been no "impeachment" until the House delivers the articles of impeachment to the Senate. Impeachment by our House of Representatives properly has been characterized as being similar to a grand jury indictment—a first step in the removal of a President. It is that—but it is much more. It can stand alone as an action taken by the House of Representatives if it finds that President has been guilty of the commission of "high crimes and misdemeanors." Indeed, in the Senate rules the person sought to be removed is referred to as "the person impeached"

Although The House cannot remove a president, it can level the constitutional punishment of "impeachment" and according to the Congressional Research Service: "Congress has identified three general types of conduct that constitute grounds for impeachment: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain." This is separate from an impeachment trial which occurs in the Senate as a predicate for removal.

The House has decided that the transgressions of President Trump, including the withholding of congressionally approved aid in order to enlist a foreign country's assistance in his bid for reelection is a "high crime and misdemeanor" and although those terms may seem vague to us today, the founders made it clear at the time that an impeachable offense need not be a statutorily defined "crime" or a convictable offense.

Our founders were fearful that an elected President (Chief Magistrate) would assume powers not given him by the Constitution—that after his election he might act like a King who would act for his own personal benefit and consider himself above the law. The founders made it clear that the impeachment of the Chief Magistrate should be applied to "the misconduct of public men." Charles Pinckney of South Carolina and Gouverneur Morris of Pennsylvania were opposed to the impeachment process, saying: "[If the president] should be re-elected, that will be sufficient proof of his innocence."

Although Republicans during Trump's impeachment hearings made the same argument, that the "voters should decide" whether to keep the President in office, George Mason (who virtually wrote our Bill of Rights) , and James Madison (the father of our Constitution), expressed a different view that prevailed at the Constitutional Convention. Mason suggested: "Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?" Madison argued that the Constitution needed an impeachment provision "for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate." It was not enough to wait and see if the voters wanted to keep him in office. "He might pervert his administration into a scheme of peculation"— embezzlement—"or oppression," Madison warned. "He might betray his trust to foreign powers."

Calling the impeachment process in the House a purely political attack against President Trump may well be a proper characterization, but it must be remembered that impeachment is not a judicial proceeding requiring "due process of law" or the violation of the criminal law—it is, as was described by Alexander Hamilton, a "political process." Although our founders respected democratic elections of House members, they thought of the Senate (it was then an appointed body) as being an 'auxiliary precaution" against majoritarian rule—the pillar of the Republic's system of checks and balances.

The Constitutional Convention decided that the Senate and not the House would be the body empowered to try and the only body which can remove the president. The reason, again given by Hamilton: "Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?" But the Senate is not empowered to either "quash" an impeachment by the House or "exonerate" the President. If it is found that the President has actually committed a convictable crime, the Constitution states "the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

No matter what the Senate decides to do with "the person impeached," and despite Trump's raging at "an illegal, invalid, and unconstitutional bullshit impeachment," the historic fact remains that President Trump was impeached for actions that the House has declared to be "high crimes and misdemeanors" and, according to the standard of the late Justice Antonin Scalia, the Constitution "must be construed now as it was understood at the time of its adoption." There is no question that President Trump's impeachment was both constitutional and in accord with the understanding and intent of our founders.

Sol Wachtler, a former chief judge of the New York State Court of Appeals, is a distinguished adjunct professor at Touro College Jacob D. Fuchsberg Law Center.