Nonprofit, independent journalism. Supported by readers.


What’s an impeachable offense?

An interesting New Yorker interview with Prof. Michael Gerhardt, an expert on the Constitution’s impeachment language.

What’s an impeachable offense? A lot of us, for obvious reasons, are wondering. Does it have to be an actual crime, or could it be a non-criminal abuse of power or other evidence of unfitness for office or moral turpitude or, as Gerald Ford once said when he wanted to impeach Supreme Court Justice William O. Douglas just because he was too darn liberal, is an impeachable offense “whatever a majority of the House of Representatives considers to be at a given moment in history.”

I don’t claim to know the answer. I’ve addressed it before and I have my views. But I just read an exploration of that question with Michael Gerhardt, a professor of constitutional law at the University of North Carolina Law School who is also the author of two books on the history and legalities of the the constitutional impeachment language. The whole interview is worth your time, but for those who like to cut to the chase, Gerhardt says it could be, but no, it doesn’t have to be an actual violation of a criminal statute. Here’s the New Yorker’s first question and the professor’s answer (emphasis mine):

New Yorker: What do you think the post-Mueller debate around Trump and impeachment is capturing or failing to capture about the proper way to think about the subject?

Prof. Gerhardt: I think that much of the public debate doesn’t understand impeachment properly. There are arguments made, positions taken, but they’re not really well tailored for the impeachment process.

One of the essential things about impeachment is that it does not have to be based on an actual criminal violation, and it does not have to track the elements in a federal criminal statute or state criminal statute. It’s perfectly well within the power of Congress, in particular the House, to frame impeachment on the basis of things that are not themselves criminal.

A lot of the discourse has been focusing on whether or not whatever the President did is actual criminal misconduct. Yes, a criminal statute violation, like perjury, for example, could be a basis for impeachment, but you don’t need the technical criminal violation. A President lying to the public—that could be a basis for impeachment. Or a President trying to interfere with an investigation. Those things could be understood as abuse of power, and they don’t have to be criminal.