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No crime necessary to be impeached

‘ Abuse or violation’ of public trust is enough

- Elizabeth Drew Elizabeth Drew is a Washington journalist and author of “Washington Journal: Reporting Watergate and Richard Nixon’s Downfall.”

The tactics some Republican­s are using to defend President Donald Trump against being impeached ( or indicted) by the House and convicted ( or removed from office) 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 definition 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 offense.

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 office; 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 officers of the United States shall be removed from office 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 first 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 offered 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 offense 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 find more valid grounds — if they can.

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 ?? VIRGINIA MUSEUM OF FINE ARTS VIA AP ?? By Junius Brutus Stearns in 1856.
VIRGINIA MUSEUM OF FINE ARTS VIA AP By Junius Brutus Stearns in 1856.

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