USA TODAY International Edition
No crime necessary to be impeached
‘ Abuse or violation’ of public trust is enough
The tactics some Republicans are using to defend President Donald Trump against being impeached ( or indicted) by the House and convicted ( or removed from office) by the Senate include confusing the public about what these terms mean. One thrust is to suggest that a president must commit a crime to be impeached.
For example, Sen. Lindsey Graham, R- S. C., perhaps Trump’s most vocal defender on Capitol Hill, indicated his supposed openness to impeachment with this statement: “Sure. I mean, show me something that is a crime.” Graham, a former Air Force lawyer who is now chairman of the Senate Judiciary Committee, surely knows better. His statement was drastically misleading.
Graham’s definition of impeachment as necessarily involving a crime goes against the history of the Constitution’s impeachment clause and undermines the very point of the exercise, which is to hold a president accountable for abuses of power between elections. A crime might be involved, but the critical point is that an abuse of power need not be a crime.
Not all crimes are impeachable offenses, and not all impeachable offenses are crimes. An abuse of power occurs when a president reaches beyond the understood limits on governing, or violates the constitutional requirement that the president “take care that the laws be faithfully executed."
For example, when President Richard Nixon used the Internal Revenue Service to harass his perceived enemies, he was abusing his power, and this became one of the Article II charges against him in the articles of impeachment drawn up against him by the House Judiciary Committee in 1974.
Article II also held a president accountable for the acts of his aides.
Founders left guidance
In an act that invites more scrutiny, Trump intervened in a recent Pentagon decision to try to make sure it didn’t award a highly sought $ 10 billion cloud computing contract to Amazon. This was part of his vendetta against Amazon chief Jeff Bezos, who also owns The Washington Post. In taking the vengeful step of interfering in a government contract decision to punish a business he despises, the president undoubtedly committed an impeachable offense.
The Founders believed that there must be a way for the public, through its elected representatives, to keep a rein on a president throughout his term of office; that the very purpose of creating a presidency was to avoid establishing in power someone who would be beyond reach until the next election, like a king. As they drafted the Constitution in Philadelphia in 1787, the Founders added to Article II, which governs the presidency, a section that said,
“The president, vice president and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, and other high crimes and misdemeanors.”
The vagueness of these terms has perplexed scholars and political practitioners over the years, but the Founders left enough guidance to make it clear that an impeachable or convictable offense need not be a crime.
Denial of absolute power
According to Raoul Berger, author of 1973’ s “Impeachment: The Constitutional Problems,” one of the first authoritative books on impeachment, the Founders lifted the wording of the impeachment clause from English law, which provided a way of punishing a king’s ministers, an indirect way of denying a king absolute power.
As it happened, while the Founders were drafting the Constitution, the English House of Commons ( the model for our House ) was considering the impeachment of Warren Hastings, a former governor general of British India. “It is by this tribunal that statesmen who abuse their power are accused by statesmen, and tried by statesmen, not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality,” Edmund Burke said in opening the proceedings.
Alexander Hamilton offered probably the best explanation of impeachment in the Federalist Papers he wrote with James Madison and John Jay to explain the new experiment. He said the purpose of impeachment was to deal with “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Nothing in these most authoritative comments suggests that an impeachable offense need be a crime. It’s clear, in fact, that the criteria are much broader. If Graham and other conservatives want to defend the president to the end ( it’s not clear that all of them do), they need to brush up on their reading and try to find more valid grounds — if they can.
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