No, Impeachment Still Does Not Require a Predicate Crime

by Neil H. Buchanan

The impeachment of Donald Trump briefly receded from public discussion, but it is unsurprisingly returning to the spotlight as Mitch McConnell dances his way toward a sham trial and Nancy Pelosi tries to use her leverage to minimize the damage from McConnell's gyrations.

One argument that one would have thought was settled is the claim by Trump backers that the House's two articles of impeachment are illegitimate because they do not describe any crimes.  But, as Professor Dorf put it recently: "Republicans have argued and will continue to argue to the uninformed public that only statutory criminal acts warrant impeachment."

To be clear, when I say that this issue ought to have been deemed "settled," I do not imagine that it is something that Trump's cult would concede.  Just as they and their ideological compatriots in Australia manage to ignore all evidence and reasoning to continue to deny the reality of human-caused climate change, and just as they cling to conspiracy theories about Ukraine and Hunter Biden (as well as other conspiracy theories about Hillary Clinton, voter fraud, and on and on), Republicans are fully capable of repeating again and again "no crime" as if that were somehow relevant.

It is, however, surprising when credentialed academics join in that kind of madness.  Earlier this week, a professor at a top-ranked law school co-authored (with one of his third-year students) an essay on Verdict purporting to prove that in fact "Impeachment of the President Normally Requires a Crime."

As I will discuss below, I have a great deal of sympathy for people who make arguments to challenge a consensus view.   The line between consensus (a valuable meeting of minds) and conventional wisdom (closed-minded groupthink) can be blurry, and in any event, one of the things that academics most assuredly should feel free to do is to make unsettling arguments.

But they have to be good arguments.  Ahem.

I give the Verdict authors credit for worrying about the potential abuse of impeachment against future presidents (assuming that the Constitution even survives the current occupant of the Oval Office).  Yet they do not show that their proposed rule would make it any more difficult for hyperpartisan zealots to railroad a future president.  Indeed, the most they can do is to say that somehow the requirement of underlying criminal charges would make a pro-impeachment case more difficult, but it is not clear why that would be so.  Hyperpartisans are hyperpartisan, and if they have to find a crime, they can do so.

More importantly, the House's impeachment of Donald Trump is not framed in criminal terms for good reason.  Rather than listing an indictment of specific crimes, the articles of impeachment are designed to refer to potential crimes as well as non-crimes, with the offenses against the country not being that Trump's behavior met all of the elements of some federal statute but that he failed to fulfill the president's constitutional duties.  "Abuse of power" and "obstruction of Congress" are more serious than a particular act of bribery or receipt of an emolument, not less so.

To put it differently, if somehow it were a rule that the House had to craft its articles of impeachment in a way that explicitly mirrored criminal indictments, it could easily do so.  Its decision to focus on the big picture is not a matter of being untethered to the law but of subsuming the particulars of various types of bad behavior under a narrative that is both easier for the public to understand and that captures the enormity of Trump's offenses.  Although Trump often acts like a petty criminal, his impeachable acts are not the sum of a bunch of grifts and long cons.  He is guilty of subverting the Constitution to his own ends at the expense of democracy itself.

Having failed to explain how their supposed limitation on future abuse would actually limit anything, the authors acknowledge that "the prevailing view among commentators is that impeachment does not require an indictable offense," because "the 'other high Crimes and Misdemeanors' formulation is thought to invite a broader canvass of English common law precedents to include a President’s abuse of authority, other abuse of the people’s trust, or even gross dereliction of duty."  They then argue, however, that the two instances of impeachment and one near-impeachment of presidents have involved crimes -- which (per their title) apparently is enough to make a predicate crime "normal" (which is a strange use of that word, given the true rarity of this event).

But their argument is not, thankfully, merely a claim about weak and inapt precedent.  Unfortunately, their affirmative arguments are quite weak indeed.  I will focus first on their two key claims, and after showing that their arguments do not add up to anything, I will explain why it is surprising and revealing that their arguments are so insubstantial.

The authors think it important to point out that the Constitution uses what might be called crime-like language in its provisions regarding impeachment, or in the authors' words, there are seven instances in the founding document "which taken together suggest a legal proceeding to try a criminal offense."  Those examples, however, do not -- even when "taken together" -- do anything more than suggest that impeachment was envisioned as a trial-like proceeding, not that what is being tried must be a crime.

Those examples include the use of the words "conviction," "try," "tried," "offenses," "convicted," and judgment."  (Those are six of the seven examples.  I will return to the omitted one momentarily.)  This is easy, because three of the six examples do not at all rule out non-criminal judicial proceedings.  Indeed, their very generality cuts against the authors' claim that those words somehow mean that the original intent was to limit impeachments to crimes.  My tort claim against a neighbor can be tried in court, and the judgment rendered is enforceable, even though there might not be a crime.

Even the two variations on the word "convict" and the use of "offense" merely say that the Framers viewed impeachable acts as more serious than civil actions, and they thus talked about "convicted" rather than "found liable" and "offenses" rather than "violations."  It is easy to acknowledge that some (but not all) of those words are more often used in criminal contexts without having any reason to agree with the authors that the totality of those examples means that impeachment "normally requires a crime."

What of the seventh example (fourth on the authors' list)?  They point to Art. III, §2, cl. 3, the exclusion in the jury trial guarantee for "all Crimes, except in cases of Impeachment" (emphasis added by the authors).  But that merely says that when an impeachment includes conduct that is a crime, the impeached president has no right to a jury trial -- precisely because he is going to be tried in a non-criminal proceeding in the Senate.  That language does nothing even to suggest that impeachment -- normally or otherwise -- requires a crime.

Even more puzzling than their textual argument, the authors point to the arguments in the Constitutional Convention that led to the "other high crimes and misdemeanors" wording in the impeachment clause.  As is now well known, George Mason proposed "mal-adminisitration" but lost the argument when James Madison said that the term was too vague.

The authors then make a strange move.  Quoting Gladstone, they note that "mal-administration of such high officers as are in the public trust and employment by public officials" was "the first and principal" "high Misdemeanor" publishable by impeachment in Parliament.  Interesting, but so what?  Well, they continue: "Thus, the very technique of interpretation urged by [the consensus view] leads us to a ground for impeachment largely foreclosed by the debates in the Constitutional Convention."

So, because Madison said "mal-administration" is too vague to include in the Constitution, that means that reference to the types of things that could have been called mal-administration is foreclosed?  Madison never said (as far as anyone knows) that the substance of Mason's concept of mal-administration was an unacceptable basis for impeachment.  He merely said that the term itself was too vague to include in the Constituiton.  That most definitely does not mean that actions that can non-vaguely be described as mal-administration are somehow foreclosed by Madison's objection.

In fact, the authors actually proved that the House's articles of impeachment do state a high misdemeanor.  The House alleges that Trump has mal-administered high officers by, for example, preventing them from testifying before Congress: obstruction of Congress = mal-administration = high misdemeanor.  Similarly, he has used public officials to abuse his office to manufacture politically convenient dirt on a political opponent: abuse of power = mal-administration = high misdemeanor.

A column that purports to say that the House did not allege constitutionally required high crimes and misdemeanors thus inadvertently proves the opposite.

Let me add one further observation about the nature of the counter-intuitive claim that the Verdict column under discussion makes.  As I noted above, I am very, very sympathetic to those who wish to challenge a widely accepted view.  But when one does so, the argument must be particularly strong.  I am not one of those who believes that "it takes a theory to beat a theory," but as a matter of argumentation, those who challenge an accepted belief had better make their case as airtight as possible.

In my own work, I have spent years challenging the standard view about the Social Security system's supposedly imminent bankruptcy, and as I noted in yesterday's column, I plan to begin to collect my occasional attacks on neoliberalism into a full-on attack on that toxic policy brew.  Similarly, when Professor Dorf and I wrote our articles about the debt ceiling, we were challenging the unexamined (but quite readily accepted) view that a president would have no choice but to refuse to spend appropriated funds if the debt ceiling were to become binding.

Readers can reach their own conclusions about how successful I (and, in the latter case, Professor Dorf and I) have been in those challenges, but in all events it is clear that a merely good-enough argument is simply not good enough.

Analogously, a number of years ago at a faculty meeting, I was charged with presenting the case for making a lateral offer to a promising young law professor.  My job was easy, because the candidate's file was filled with articles published in top-ranked journals, letters of reference from stars in the field who emphatically supported the candidate, and so on.  The case in favor of making an offer was, as the saying goes, a no-brainer.  One of my colleagues was not impressed, which was his right.  But he completely undermined himself by beginning his argument with these words: "Neil just told us that this is  a no-brainer, and it is ... against an offer."  If he was going to make a case against a candidate who so obviously checked all of the boxes, he needed to say something like this: "Although I can see why this candidate has many of the virtues that would normally lead to an offer, here are some especially compelling reasons to ignore all that."  He did not, and he lost the argument (badly).

The point is not merely the words chosen, of course.  The problem is in failing to acknowledge what one is trying to do: tell everyone that they have it wrong and that what seems obvious is somehow an illusion.  That is a steep climb.

How steep a climb is it to say that the Constitution "normally requires" a crime in order to impeach a president?  How does straight vertical rock-climbing strike you?  As Professor Dorf pointed out in a recent column, "an act can amount to treason, bribery, or some other high crime or misdemeanor within the meaning of the Constitution even if it is not a crime as defined by statute. Indeed, all of the law professors who testified last week [at the House impeachment hearing], including Jonathan Turley, acknowledged that."  Even Professor Turley, who essentially argued that Trump's simple-minded impeachable acts were somehow too easy to prove, nevertheless admitted that there is no requirement of a crime.

In the face of that, the Verdict authors offer a thin gruel of misinterpreted snippets of text and an originalist argument that proves the opposite of their thesis.  Even writing on a blank slate, that would be inadequate.  And this is no blank slate.