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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 whether President Trump has committed a crime, like obstruct justice or strike a quid pro quo with Russia.
In the current evironment, this line of argument boils down to the notion that talk of impeachment is inappropriate until Special Counsel Robert Mueller’s Russia investigation concludes.
The consensus view among legal experts is that the president does not need to commit an indictable crime to be impeached (and conversely, that not all crimes are impeachable offenses). Treason and bribery are crimes, but none of the most important legal authorities on the subject–Charles Black, Raoul Berger, Cass Sunstein, Michael Gerhardt, Richard Posner, or Ronald Rotunda, to name a few–believe that only crimes qualify for the last and most important bucket of impeachable offenses, “high Crimes and Misdemeanors.”
How can they be so sure? To start, history is quite clear on this narrow question. As Berger details in his lengthy historical treatment of the topic, the term “high Crimes and Misdemeanors” dates back to fourteenth-century impeachment proceedings, when misdemeanors were not “crimes” at all and comprised only torts and private wrongs.
This history is reinforced by common sense. Black offers a series of hypotheticals designed to demonstrate how ludicrous it would be if the president could not be impeached except for crimes. For example, imagine if the president announced and followed a policy of granting full pardons, in advance of any trial, to any federal agent or police officer who killed anyone in the line of duty in the District of Columbia, “whatever the circumstances and however unnecessary the killing.” As Black points out, this would not be a crime, but “could anybody doubt that such conduct would be impeachable?”
The ongoing fixation on whether Trump has committed a crime for purposes of evaluating the appropriateness of his conduct–or, in the alternative, whether he has done something that is unconstitutional beyond question or debate–is symptomatic of a larger issue. As I wrote in June, “The hyper-legal approach to the startling revelations flowing out of the Trump White House seems to have developed special pull under a presidency adrift, presumably because the law strikes us as an anchor that might hold us to shore in hysterical times.” Our focus on the question of criminal presidential conduct may also be a residual effect of Watergate, a lurid saga of base criminality that retains such a strong grip on the public memory that it is perhaps perceived not as an example of what it takes for a president to depart in disgrace, but as the defining model.
But there is no truth in the idea that only evidence of a crime can trigger an impeachment inquiry. On this crucial point, I can only reiterate what I have already urged:
On my read, law is the North Star of impeachment discourse; it is a helpful reference point that we must always track to ensure we do not get so turned around that we stray into reactionary partisanship. Black himself fully appreciates that we “feel more comfortable when dealing with conduct clearly criminal in the ordinary sense, for as one gets further from that area it becomes progressively more difficult to be certain, as to any particular offense, that it is impeachable.” But to allow Ursa Minor to blind us to the realm of non-criminal, impeachable presidential misconduct is to misunderstand the awesome power inherent in the office–power that includes tyrant potential precisely because the alternative is to neuter the “energetic Executive” of the vitality and range of motion that Alexander Hamilton described as essential to our security and stability as a nation. Black’s extreme hypotheticals are designed to remind us that in the case of a badly behaving president, law is a lodestar, not a refuge; “the limitation of impeachable offenses to those offenses made generally criminal by statute is unwarranted–even absurd.”
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.