For the first time in our history, a President has been impeached by the House of Representatives for conduct not alleged to be a crime. (The impeachment of Andrew Johnson and William J. Clinton, as well as the impending impeachment of Richard M. Nixon, all involved alleged crimes, while some of the additional articles of impeachment did not.) On December 18, 2019, a majority in the House approved two articles of impeachment against President Trump: one for “abuse of power” and the other for “obstruction of Congress.” Neither article states a crime or even a statutory violation. Unlike established crimes or other offenses, neither article contains required elements against which proof of violation can be ascertained. Whatever the Senate ultimately does, Trump’s impeachment is a grave moment for the union and hopefully one that does not result in substantial damage to the authority of the presidency and our civic culture.
The President’s behavior in suspending defense aid to Ukraine ostensibly in order to wrest from our ally an announcement that it would investigate the affairs of the son of a political rival should be condemned by Congress, but is it impeachable conduct? On that question, we have to be guided by uniform principle: what will be deemed sufficient for Presidents whom we dislike will also provide the standard for impeaching administrations that we favor. There needs to be some objective, nonmalleable standard of misconduct lest, especially in today’s polarized environment, impeachment becomes too easy a vehicle for the party in control of the House to be able to hobble an administration of the opposing party over partisan differences.
The Constitution (Art. II, § 4) authorizes impeachment and removal from office of a President (and other civil officers of the United States) for “Conviction of Treason, Bribery, or other high Crimes and Misdemeanors.” Since treason is a crime defined by the Constitution (Art. III, §3), and bribery was a well-established offense under English common law, under standard principles of interpretation, “other high Crimes and Misdemeanors” (emphasis supplied) would share at least the feature of a criminal offense and would not be given a definition so broad as to consume, and render surplusage, the other listed offenses. We know from the Constitutional Convention that treason and bribery were considered too limited in scope and George Mason suggested adding “mal-administration” which James Madison objected was “[s]o vague a term [as to be] equivalent to tenure during the pleasure of the Senate”. In its place, the Convention settled on the “other high Crimes and Misdemeanors” formulation.
Although the matter has been contested over the course of our history – and as noted, there has until now been no presidential impeachment (as opposed to judicial impeachments, which proceed under the same constitutional clause as presidential impeachments but perhaps have presented a more intractable problem because of the life tenure of Article III judges) without a crime – the prevailing view among commentators is that impeachment does not require an indictable offense; rather, the “other high Crimes and Misdemeanors” formulation is thought to invite a broader canvass of English common law precedents to include a President’s abuse of authority, other abuse of the people’s trust, or even gross dereliction of duty.
One problem with the prevailing approach is that the English precedents do not themselves yield a clear set of principles capable of deterring abusive resort to impeachment. Indeed, as Blackstone observed in his Commentaries, “mal- administration of such high officers as are in the public trust and employment by public officials” was “the first and principal” “high Misdemeanor” publishable by impeachment in Parliament. Thus, the very technique of interpretation urged by these commentators leads us to a ground for impeachment largely foreclosed by the debates in the Constitutional Convention.
The noncriminal-offense interpretation is also difficult to square with other aspects of the constitutional text. As former Justice Benjamin Curtis, who dissented in Dred Scott v. Sandford, 80 U.S. (19 How.) 393 (1867), argued in defense of President Andrew Johnson, the Constitution refers to impeachment in seven places—references (emphasis supplied) which taken together suggest a legal proceeding to try a criminal offense: (1) the Impeachment Clause’s reference to “Conviction” for “high Crimes and Misdemeanors “; (2) the Senate’s power “to try all Impeachments” (Art. I, § 3, cl.6); (3) the fact that the Chief Justice shall preside when the President is “tried” (id.); (4) the exclusion in the jury trial guarantee for “ all Crimes, except in cases of Impeachment” (Art. III, §2, cl. 3); (5) the pardon clause granting the President the power to “Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment” (Art. II, §2, cl, 1); (6) the requirement that two-thirds of the Senate vote for a person to be “convicted” of an impeachable offense; and (7) the provision limiting the reach of “Judgement in Cases of Impeachment… to removal from Office” (Art. I,§ 3, cl. 7). (Note that, as with certain immigration deportation proceedings, a legal proceeding that involves an adjudication of whether a criminal offense has occurred is not necessarily a criminal proceeding triggering constitutional double-jeopardy considerations.)
Wherever the Constitution refers to “crimes” or “offenses” the reference is to criminal offenses. Nowhere are such terms used to refer to noncriminal conduct or conduct that could be proscribed without a basis in a preexisting prohibition.
The foregoing suggests a textual basis for an objective standard that provides some constraint on political impulse to misuse impeachment and one that is consistent with the past practice of presidential impeachment—a minimum requirement, or at least a very strong presumption, that the President committed a crime under pre-existing federal law and perhaps certain state law dealing with garden-variety crimes.
Commission of a crime is necessary, on this view, for presidential impeachment and removal but not every crime comes within the class of “other high Crimes and Misdemeanors.” In the context of President William J. Clinton’s impeachment, there was no dispute that he had committed the federal crime of lying under oath to a grand jury. The question was whether lying about a private sexual relationship with an intern sufficiently implicated the President’s public duty to constitute a “high Crime and Misdemeanor”.
Nor should it be sufficient if the crime is completed only after the underlying conduct had occurred, serving as a tool to target the President. This was the case in President Andrew Johnson’s impeachment. The House claimed in its articles of impeachment that Johnson had violated the Tenure of Office Act of 1867 (ch. 154, 14 Stat. 430, repealed 1887) by seeking the removal of Secretary of War Edwin M. Stanton without the Senate’s consent, which the Act itself defined as a federal crime. Former Justice Curtis argued during the Senate trial that since the statute was enacted after Johnson’s ouster of Secretary Stanton, convicting the President for conduct lawful at the time and made unlawful only after its commission was an ex post facto law prohibited by the Constitution as well as an indirect means of effecting a constitutionally prohibited bill of attainder.
A distinct virtue of requiring a crime for impeachment is that the House is compelled to have a legal basis for bringing an impeachment that would be consistent with how the particular criminal offense is generally interpreted and applied. If, for example, the House believes that President Trump solicited a bribe (i.e., a declaration by Ukraine that the Biden family would be investigated for corruption) in exchange for certain official acts (i.e., agreeing to a White House dinner and release of military aid), it should have to make this case within the confines of the federal criminal offense of bribery, not by resorting to the vaguer “abuse of power” approach of the House’s articles of impeachment. Similarly, if the existence of a legitimate motive (say, Trump’s general concern with Ukraine corruption) is deemed not to negate the presence of an illegitimate motive (securing political dirt on a rival), this way of handling the problem of dual motives should be consistent with federal bribery jurisprudence, not fashioned ex nihilo.
This reasoning also helps explain why other impeachments have been built around some kernel of criminal conduct. If a President, judge, or other officer, is willing to break the law to achieve some political or personal goal, it can hardly be doubted that he or she was acting in violation of the public trust. But an impeachment proceeding without a crime or even a statutory violation can at most reflect an unstated consensus at the time of the complained-of conduct so violated the public trust as to be impeachable. Perhaps a coalescence of a majority of the House and two-thirds of the Senate would sufficiently demonstrate such a consensus, but in an era of divided government and national political party loyalty, it seems more likely that such an impeachment would, as Hamilton warned in Federalist 65, “agitate the passions of the whole community . . . [and] divide it into parties more or less friendly or inimical to the accused . . . [such that] the decision will be regulated more by the comparative strength of the parties, than by the real demonstrations of innocence or guilt.”
At the time of our founding, there might have been a chance that not all cases of presidential misconduct would be covered by existing federal law, and hence might in theory require resort to English common law precedents (in fact, for Justice Story resort to English common law was in part a functional necessity given the relative dearth of U.S. law at the time), but today that concern would seem obsolete. But if there are instances of presidential misconduct that are not at the time of their commission proscribed by criminal or other positive law, this problem can be minimized prospectively by appropriate legislation, as has occurred with respect to judicial misconduct.