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What’s an impeachable offense?

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.

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Comments (6)

  1. Submitted by Pat Berg on 05/14/2019 - 04:37 pm.

    My understanding is that an impeachable offense is something that results in a President being considered (by Congress) as being unfit to do his/her job and yes – it does not have to be criminal (nor follow all the rules of criminal prosecution).

  2. Submitted by RB Holbrook on 05/14/2019 - 05:07 pm.

    The history of the debates surrounding the adoption of the impeachment clause show that impeachment was not meant to be used only in cases of violations of criminal statutes. It could be general unfitness for the job, and Congress is left with the decision of how that unfitness might manifest itself.

  3. Submitted by Ray Schoch on 05/15/2019 - 07:19 am.

    Impeachment would be far less costly, in every sense of the word, than the self-inflicted wound of a completely unnecessary war with Iran, which Mr. Bolton and Mr. Trump are now making noises about. Waving the flag and talking vaguely about “threats to our security” are useful distractions.

    There are Democrats who will support impeachment purely on political grounds, of course, and especially in the House, but Impeachment is merely the accusation part. The actual trial takes place in the Senate, and the REAL question is whether there are any Republican members of the Senate who are repelled enough by the boorishness and bigotry, not to mention the flagrant abuse of power on the part of Mr. Trump, to say, in effect, “We made a mistake.” I won’t be holding my breath…

    Moreover, impeachment of Trump gives us Mike Pence – truly a case of leaping from the frying pan into the fire, though with less inflammatory language.

  4. Submitted by Edward Blaise on 05/15/2019 - 07:49 am.

    A 100% partisan impeachment, no matter how well deserved, is a fruitless endeavor.

    Mueller conclusively stated, once and for all, there is no denying Russian influence in the 2016 election.

    Time for legislation that delivers extreme sanctions and penalties against the Russian government.

    If the Rs resist this and make it a partisan issue, “we’re with Putin” they are shown to be the Trump lackeys they are. They may decide:

    “Hmm, doesn’t look good to the folks back home to be on the Russian side of this argument”

    And pass legislation that forces Trump to either lower the boom on his buddy Vlad or give him a free pass, he probably would prefer impeachment.

  5. Submitted by Neal Rovick on 05/15/2019 - 07:56 am.

    Removing a President requires the approval of House and Senate (and probably would involve the Supreme Court, also.)

    In this era of deep partisanship, open admiration for the autocratic regimes of the world, and a disdain for minority policy considerations, a President could indeed shoot someone on the street and walk away.

  6. Submitted by Connie Sullivan on 05/15/2019 - 11:43 am.

    No matter how we define impeachable offense, Donald Trump has it all: He has committed multiple crimes (the many cases of his obstruction of justice that about 800 former federal prosecutors signed a letter confirming as crimes under the law for anyone not currently the president) and he has committed what many would call abuses of power.

    He deserves that incredible combo to be marked for history by a House impeachment process and vote. Who cares about the Republicans in the Senate?

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