“There can be crimes that are impeachable offenses and impeachable offenses that are not crimes.”

UPDATE:

Whatever that means.

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?

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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.)

Comment:

Probably the best context for “high crimes and misdemeanors” is what the Founding Fathers would have understand that phrase to mean.

Scoop’s notes:

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.

18 thoughts on ““There can be crimes that are impeachable offenses and impeachable offenses that are not crimes.”

  1. Probably the best context for “high crimes and misdemeanors” is what the Founding Fathers would have understand that phrase to mean.

    1. 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 they 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: 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.

      And that’s without anything from the Russia probe!

      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 outlined “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 England in 1386.

    1. Wow…. I would be very interested to read what YOU, in your scholarly knowledge of what an impeachable offense is, think Trump has done that qualifies.

      1. I doubt anyone who follows politics intelligently believes that is necessary, Captain Oblivious.

  2. “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.”

    Most of these things fit under the definition of ‘gross negligence’ which the term ‘misdemeanor’ encompassed in 1787-1789. What decides at what point these things are impeachable (and convictable) I can’t say.

    However, I personally favor ‘normalizing’ impeachment (and conviction.) Of course the process is a problem when it is used for what are perceived as partisan political purposes, as it was with President Clinton, however, I prefer to look at impeachment/conviction as firing the President.

    The Presidency is said to be the most difficult job in the world, and yet the President can only be fired once every four years. That seems kind of stupid to me. In the book, All the President’s Men, Woodward and Bernstein detail myriad ways in which President Nixon could be and probably deserved to be impeached and convicted. Yet, in their follow-up, ‘The Final Days’ they somehow came to the conclusion that unless Nixon had been personally involved in the Watergate Cover-up, that all of his other myriad impeachable offenses no longer merited impeachment.

    I have no idea how they changed their conclusion to go along with the notion that firing a President can only be done for the most egregious crimes. For no other reason than the President controls the nuclear code, firing a President for ‘gross negligence’ and other worrying signs of erratic behavior strikes me as fairly obvious reasons (I recognize that Trump seems to know when to pull back when it comes to making war threats: he’s erratic and an negligent narcissist but he isn’t deranged. However, his erratic behavior could, at any time, get him in a nuclear situation that he can’t pull back from.)

    While I do worry about partisan abuse of the impeachment process, I think the public would sufficiently punish Congresses that abuse it. In general, my argument in favor of normalizing the firing of a President is based on the idea of general deterrence: keeping the President from even considering abusing the office.

    This is from the 1980’s British T.V Show ‘Yes, Minister’ in an episode entitled ‘Doing the Honours.’ (As the episode points out, receiving honours like the OBE are only received by private citizens for doing extraordinary things, but senior civil servants receive them just for being senior civil servants.)

    Sir Humphrey is the Minister of Administrative Affairs James Hacker’s Permanent Secretary

    Sir Humphrey Appleby: Minister, if you block honours pending economies, you might create a dangerous precedent.

    James Hacker: You mean that if we do the right thing this time, we might have to do the right thing again next time.

  3. I think the best example is there may be things that are corrupt as hell that you can’t quite charge criminally because of the way the statutes are written. For example, Trump could be lining his pockets with cash from people with business before the government, openly do them favors in return, but still not be quite prosecutable for bribery because of lack of direct evidence of quid pro quo. He could be colluding with a foreign government that rhymes with Prussia but not quite prosecutable for treason because you can’t definitively say his aim is “plotting the overthrow” or whatever. Also Congress isn’t bound by protections like proof beyond a reasonable doubt or rules of evidence that apply to criminal trials because it should be harder for the government to throw someone in prison than to throw them out of office.

  4. I mean, in a broad sense, manifest disloyalty to your country is not a crime, but it is a “high crime and misdemeanor” if you are the president of the United States. I can imagine a range of situations in which in would be appropriate for Congress to remove a president from office that are not criminally prosecutable. Gross dereliction of duty is another. I’m not saying I believe these descriptors apply to Trump (but I’m not NOT saying that either…. ;). Congress had less than this on Andrew Johnson, whom history agrees was a singular POS.

  5. The example would be that you could conceive of Congress impeaching the President for just extreme neglect of his duties or recklessness – like, not showing up for work ever, golfing all the time, Tweeting crazy things at foreign leaders. Extreme conflicts of interest (not necessarily a crime). Lying, let’s say lying but not under oath, to hide his conflicts of interest. Making impulsive, very poor decisions that have implications globally and at home.

    None of the above things are crimes, but Congress would be within its right to impeach a President for them. Because it can impeach a President for whatever reason, and there’s no other body or entity with the authority to tell them that they’re wrong.

  6. Don’t you miss having a competent president and not having to worry about this stuff?

    1. I certainly don’t miss a President that was doing his damndest to bring this country down and turn it into something other than the most powerful nation in the world.

  7. The obvious example in recent times of a President and Vice President who should have been removed from office but committed no (clear) crime were George W Bush and Dick Cheney for lying the U.S into war in Iraq.

  8. I think an excellent example of an impeachable offense that would not actually be a crime (i.e. be against the law) would be firing Mueller and ordering the end of his investigation without submitting a report. Some might argue that would constitute obstruction of justice, but that could be a very hard case to make because ending an investigation is clearly within his authority. But if he did that I think there would be a substantial number of Republicans supporting impeachment. Perhaps not enough to actually remove him, but it might be close.

    Another possibility would be presidential pardons for Paul Manafort, Roger Stone, Trump’s kids, and others facing indictment or already indicted by Mueller or the Southern District of New York. Again, acts clearly within his authority and unlikely to be found to be criminal, but very likely to provoke impeachment.

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