The U.S. Constitution authorizes the House of Representatives to impeach and the Senate to remove the President, Vice President, and all civil officers of the United States upon proof of “treason, bribery, or other high crimes and misdemeanors.” Historians and legal scholars have long understood that a literal crime as defined by statute is neither a necessary nor a sufficient condition for impeachment. Rather, we understand that the language just quoted (which appears in Article I, Section 4) captures serious abuses of official power whether or not they are violations of the criminal code.
To be sure, a great many official acts that provide grounds for impeachment also provide grounds for criminal prosecution. And the language of Article I, Section 4 sounds like it invokes the criminal law. As a result, opportunistic lawyers and politicians sometimes rely on the overlap in substance and content between impeachment and criminal prosecution in an effort to sow confusion.
For example, during Donald Trump’s first impeachment (for attempting to coerce Ukrainian President Volodymyr Zelensky to make false pronouncements about Joe and Hunter Biden by withholding congressionally appropriated military aid) his lawyers argued that the articles of impeachment were invalid because they charged “abuse of power,” which is not a crime, and “obstruction of Congress,” which could be a crime but was not detailed in the House charging document in a way that makes it one.
Those defenses should have failed as a matter of law, but as we know, Trump was acquitted in the Senate because impeachment is not simply a legal proceeding but also a political one. With the exception of Utah’s Mitt Romney, all of the Republican Senators voted to acquit Trump.
Trump fared worse during his second impeachment (for incitement of the January 6 insurrection), this time losing seven Republican Senators. But with Republicans who hoped to have a future in their party still making excuses, the final vote once again fell short of the two-thirds threshold for Senate conviction.
As in 2020 and 2021, Trump and many Republicans are once again seeking to exploit and sow confusion about the nature of impeachment, now in three settings: Trump’s assertion of immunity to prosecution; the House impeachment investigation of President Joe Biden; and the House impeachment investigation of Homeland Security Secretary Alejandro Mayorkas. Although the core problems with the Trump/Republican position in each of these contexts differ from one another, there is a consistent if cynical throughline: Republicans win and Democrats lose.
The Trump Immunity Claim
In an essay on my blog and a column on this site last month, I critiqued Trump’s claim for near-absolute immunity for past Presidents for any actions that fall within the outer perimeter of their official conduct as not just weak but idiotic. Here I will focus on the one exception Trump allows: his lawyers argued last week before a panel of the U.S. Court of Appeals for the D.C. Circuit that a former President can be prosecuted but only if he is first impeached by the House and convicted by the Senate. As Austin Sarat observed in his column on this site last week, that claim contradicts what Trump’s lawyers told the Senate during his second impeachment trial in 2021 as well as the plain logic of the Constitution’s Article I, Section 3, Clause 7.
To see why the Trump claim is manifestly illogical, consider the constitutional language, to which I have added the letters A and B for clarity:
[A] Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: [B] but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
It is clear that sub-clause B does not state a prerequisite for indictment, trial, judgment, and punishment. Rather, it makes clear that while conviction by the Senate on impeachment charges does not carry those consequences, they can be pursued separately.
Even if Trump loses his immunity claim—as he likely will—he can win by losing simply by delaying. After losing before a panel of the D.C. Circuit, he can seek en banc review of the full court, and then, should that fail, review in the Supreme Court, which recently declined to avoid these delays when it rejected Special Counsel Jack Smith’s petition to bypass the appeals court. With additional weeks or months of delay before the courts resolve Trump’s frivolous immunity claim—indeed, even without much more delay—the trial will occur in the midst of the presidential election campaign.
In the eyes of Trump’s supporters and low-information voters, that timing will bolster Trump’s claim that the criminal indictments against him are politically motivated—and perfectly invert the relation between impeachment and the criminal justice system. Impeachment trials necessarily have a political element, but Trump wants the courts to treat the outcome of his impeachment trial as setting a wholly legal precedent. Meanwhile, he wants the public to believe his false charge that the same Justice Department that is aggressively (and appropriately) pursuing criminal charges against New Jersey Democratic Senator Robert Menendez is politically persecuting him.
The Biden and Mayorkas Impeachments
Hold on. I just acknowledged that impeachment necessarily has a political element. How then can I complain about the politically motivated investigations of President Biden and Secretary Mayorkas?
There is no contradiction. Impeachment is a partly political process, but politics is supposed to play only a secondary role in it—coming in only after the threshold of high crimes and misdemeanors has been met. The impeachment of Bill Clinton is a useful example.
Clinton was impeached for lying under oath and obstruction of justice, with both charges arising out of an investigation into his sexual relationship with White House intern Monica Lewinsky. It is reasonable to conclude that perjury and obstruction are impeachable offenses—regardless of the reason why one engages in them—but also that people who conduct adulterous affairs will inevitably commit further dishonest acts to cover them up and that therefore Clinton’s continued service in office did not pose a serious threat of abuse of office. And indeed, some of the Democratic Senators who voted to acquit Clinton said something like that. Or they said that perjury and obstruction, while generally impeachable, are not impeachable when committed to cover up an adulterous affair.
To be sure, the nearly party-line votes during the Clinton impeachment can be read to suggest that these were post hoc rationalizations. Even so, however, nobody could seriously argue that what Clinton did was not impeachable but that he should nonetheless be impeached, convicted, and removed from office. In other words, politics comes into impeachment proceedings only to avoid impeaching and/or removing an otherwise impeachable and removable officer. Finding an impeachable offense—which depends on the law and facts, not just politics—is a necessary condition for impeachment.
The proceedings against Biden and Mayorkas violate that bedrock principle. Despite years of digging, House Republicans have not found any concrete evidence tying Joe Biden to corrupt dealings with foreign governments by his son Hunter Biden. In various books of the Bible, God announces that the sins of the father will be visited on the sons, but the Constitution (in Article III, Section 3) denies Congress the power to “work Corruption of Blood.” When the Constitution allows impeachment for high crimes and misdemeanors, it quite obviously means for high crimes and misdemeanors by the government official being impeached, not a family member.
The impeachment investigation of Secretary Mayorkas is, if anything, even worse. At least House Republicans claim that they are looking for evidence that President Biden participated in corrupt acts along with his son. By contrast, Republicans are investigating Mayorkas because they dislike and disagree with how he is carrying out his official responsibilities. However, as an open letter by 25 constitutional law scholars (including me) observes: “When the Framers designed the Constitution’s impeachment provisions, they made a conscious choice not to allow impeachment for mere ‘maladministration’—in other words, for incompetence, poor judgment, or bad policy.” Yet maladministration is exactly the charge against Mayorkas.
Or rather, that is the real charge. Some Republican House members have said they would like to impeach Mayorkas for failing to enforce the nation’s immigration laws. But of course, no administration enforces all of the laws to the maximum extent possible. Mayorkas, like every executive official in the history of the Republic, is exercising prosecutorial discretion.
Disagreement with the exercise of that discretion can be a ground for hearings, for new legislation, and for funding decisions. Absent evidence of high crimes and misdemeanors, it is not grounds for impeachment.