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.”