Can anyone give me an example of an impeachable offense that is a perfectly legal action?
Mind you, I know that an impeachable offense is whatever Congress says it is. A Senate vote to convict is not subject to judicial review or any kind of appeal. If they choose to, the Senate can remove Trump for his ridiculous hairstyle.
But setting that aside and assuming that our lawmakers respect the Constitution, what is an example of an impeachable offense that is non-criminal? Should a president be impeached for, let’s say, breaching a contract (which would be civil rather than criminal)? Parking in a handicapped spot? Dereliction of duty? Being drunk on the job? Failing to supervise a subordinate? Conduct unbecoming (let’s say throwing around the “n” word as an example)? General incompetence?
To me, the full wording “treason, bribery, or OTHER high crimes and misdemeanors,” implies that the “other” things would be roughly as important as treason and bribery, or in other words, a President should only be impeached for “really serious shit,” and that other matters are to be decided by the voters, not the Congress. What say ye?
For further discussion, click on “continue reading.”
(Sorry. It’s a rather abstruse discussion, I’m afraid, and completely joke-free. I probably approached this too seriously for my little “fun” blog.)
Probably the best context for “high crimes and misdemeanors” is what the Founding Fathers would have understand that phrase to mean.
That still leaves it very vague.
In The Federalist Papers (#65), Hamilton 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.”
In the debate during the constitutional convention, the original draft created an impeachment process for judges only, because they were appointed for life. Many of the delegates opposed impeachment of executive officials, arguing that the power of an elected official can be checked by elections. Madison disagreed. He posited that “loss of capacity, or corruption . . . might be fatal to the republic” if the country could not remove a bad actor until the next election.
The next proposal was just to include treason, bribery and corruption as the possible reasons. A reviewing committee removed “corruption.” Others wanted to add “maladministration.” Madison again objected, saying that such a general term endangered the system of checks and balances because it allowed Congress to remove the President at its pleasure. George Mason suggested adding “high crimes and misdemeanors against the state,” and a shortened version of that made it into the final document.
The convention approved “high crimes and misdemeanors” with no real objections. The phrase was common in English law, and they were essentially Englishmen. The English parliament had used “high crimes and misdemeanors” for many centuries as grounds sufficient to impeach. When that term was used, it encompassed such diverse elements as misappropriating funds, appointing unfit subordinates, failing to prosecute criminal cases, not spending money allocated by Parliament, threatening a grand jury, disobeying an order from Parliament, and granting warrants without cause.
Some of these charges were NOT crimes, which supports Jerrold Nadler’s thinking that non-criminal actions may be impeachable. What the charges have in common is abuse of power.
In this regard, you could claim that Trump has committed, and will further commit based upon his words, many impeachable offenses, even without considering the Russia probe: giving Jared security clearance, failing to spend money designated by Congress for military housing, failing to allow the IRS to yield his tax returns when ordered to do so lawfully, misappropriating funds to build his wall, and nominating so many unfit subordinates that we’ve lost track of them.
However, I do not subscribe to a strict originalist interpretation. Wisdom did not end with James Madison. Although that definition is what the delegates to the constitutional convention understood the phrase to mean, Parliament first defined high crimes and misdemeanors four hundred years before the constitutional convention, and I am not comfortable saying that 21st century America ought to be bound by the reasoning of 14th century England.