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The Biggest Impeachment Myth Of All: Trump Has To Commit An Indictable Crime
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Excerpted from a much longer piece by Jane Chong for Lawfare
No impeachment myth is quite as inaccurate and tenacious as the notion that an impeachment inquiry must wait until evidence emerges that the president has committed a crime. It is an argument that has been explicitly made by unembarrassed Trumpists like Ed Rogers in the pages of the Washington Post. But more importantly, it is the implicit argument underlying the obsessive commentatory over wh
When it comes to the meaning of “high Crimes and Misdemeanors,” to mistakenly hyper-focus on particular crimes is, to use de Tocqueville’s phrase, to confound the familiar with the necessary. It may very well be that certain, but not all crimes, are impeachable, but as a result of the history that preceded the constitution’s adoption, it is crystal clear that it’s the nature of the underlying conduct that is examined.
I’m not certain that the fourteenth-century impeachment misdemeanor proceedings were only comprised torts and private wrongs for they included:
“* * * offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.”*
The last sentence of sums it up perfectly for its application to the present.
Further:
“In Federalist No. 65, Hamilton explained impeachment. He defined impeachable offenses as “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.'”*
This quote from Hamilton demonstrates a man with great prescience.
As to the word “high,” there is much support for the proposition that “high” does not refer to the nature of the crime at all. Rather, “high” refers “to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.”**
And again, coming back to Trump:
“It should be noted, however, that when an offense against a statute is also a “high crime or misdemeanor”, it may be, and usually is, referred to by a different name, when considered as such. Thus, an offense like “obstruction of justice” or “subornation of perjury” may become “abuse of authority” when done by an official bound by oath. As such it would be grounds for impeachment and removal from office, but would be punishable by its statutory name once the official is out of office.”**
Any questions?
Next case.
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*http://www.crf-usa.org/impeachment/high-crimes-and-misdemeanors.html
** http://www.constitution.org/cmt/high_crimes.htm
I remember we hashed this debate out briefly in the comments here a couple months ago and I feel somewhat vindicated reading this.
As further clarification, though, impeachment is a political question left to Congress. I know this leaves things unhelpfully ambiguous, but if Congress says something is a high crime or misdemeanour worthy of impeachment, then it is, and if Congress doesn’t, then it isn’t.
Maybe there are any number of things Congress should consider in making that decision, but that seems to be the basic constitutional apparatus at play here.