The reality that President Biden will not be impeached and removed does not mean Democrats will not mount a defense of him — he is, after all, their candidate in the next election. One of the issues they will be raising (it’s already come up in Republican questioning of constitutional-law professor Jonathan Turley, one of today’s witnesses) is when conduct that Republicans portray as impeachable occurred.

It is an issue because the influence-peddling scheme that is the crux of the impeachment inquiry, as Republicans have designed it, took place prior to 2019. There is a legal theory that impeachment is meant as a check on presidential abuses of power, and therefore that “high crimes and misdemeanors” are impeachable only if committed while the president in question is in power.

I say this is a “theory” rather than a rule because I am an adherent to the wisdom of Gerald Ford, who during his time as House minority leader observed that an impeachable offense is whatever a majority of the House of Representatives decides it is. Impeachment is a political process, not a legal proceeding. The Constitution commits the question whether to impeach to the House and leaves it to the House to determine what conduct is sufficiently egregious. The courts would not review that political question. Instead, the constitutional check on an abusive House impeachment over trifling misconduct is the two-thirds’ supermajority requirement for Senate conviction (which not only prevents removal over nonsense but should, when the House is working properly, discourage frivolous impeachments in the first place).

But even if we assume, for argument’s sake, that “high crimes and misdemeanors” refers to misconduct in office, the Democrats’ contention has two flaws.

First, Joe Biden was in office during much of the scheme. Indeed, the Biden family’s cashing in while he was vice president is the most alarming evidence the Republicans have thus far collected; and the specter that foreign powers continued to be interested in lining his family’s pockets while Biden prepared a 2020 run for the presidency is patently significant.

Now, the comeback to that is that Biden was vice president — any abuses were not committed during his presidency. That argument would have more force if you believe that a person must be in office at the time of the congressional impeachment process. I don’t believe that — there is nothing in the Constitution imposing such a limit; American impeachment is modeled on the British impeachment of Warren Hastings, who was no longer in power when he was impeached over his actions as the empire’s governor in India. Moreover, President Trump was subjected to a Senate impeachment trial after he was already out of office (the House impeached him just before his term ended). Biden could thus still be impeached for high crimes and misdemeanors committed while he was vice president.

More to the point, the commission of high crimes and misdemeanors is not the only basis for impeachment. The impeachment clause (Article II, section 4) also provides for impeachment in cases of treason and bribery. It would be absurd to suggest that treason would have to be committed during the presidency to be impeachment-eligible. As for bribery, one major impetus in the Framers’ decision to include the impeachment power was fear that the awesome powers of the presidency could be put in the service of a foreign power. Clearly, if a person was bribed by agents of a foreign power prior to becoming president, that person would still be owned and subject to blackmailing by the foreign power during his presidency — exactly the danger that animated the Framers.

Bribery suspicions are the core of the Biden impeachment inquiry. That doesn’t mean there will be articles of impeachment, or even that there necessarily should be articles of impeachment (under circumstances where there is no prospect of conviction in the Senate, it would be a great deal of effort and putting aside of important government business toward no good end). But I do not believe there would be a meritorious temporal objection to impeachment articles.