CRF Blog

What Are Impeachable Offenses?

by Bill Hayes

In What Are Impeachable Offenses? for the New York Review of Books, Noah Feldman and Jacob Weisberg review The Case for Impeachment by Allan J. Lichtman and Impeachment: A Citizen’s Guide by Cass R. Sunstein.

Because it has been used so rarely, and because it is a power entrusted to Congress, not the courts, impeachment as a legal process is poorly understood. There are no judicial opinions that create precedents for how and when to proceed with it. Past cases are subject to competing and often contradictory interpretations. Some might even be tempted to argue that because impeachment is ultimately political, it cannot be considered in legal terms at all.

That extreme view cannot be right. Impeachment must be a legal procedure because it derives from specific constitutional directives. The impeachment clauses of the Constitution are subject to interpretation, like all language, legal or otherwise, but they function as law. Members of Congress have a sworn legal duty to apply the Constitution correctly — including when they are considering impeachment. Calling for the impeachment of Supreme Court Justice William O. Douglas in 1970, then Congressman Gerald Ford asserted that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” That statement ought to be taken as a description of political reality, not a prescription that Congress may choose to treat any conduct as impeachable.

The legal limits of the impeachment power are subject to debate. Yet it is clear both historically and logically that impeachment was designed to deal with abuses committed while in office, not prior crimes. Any wrongdoing of Trump’s before he assumed the presidency must be considered separately from offenses he may have committed in office. The former, however serious it might be, is not a basis for impeachment; and the president is presumptively protected from prosecution by presidential immunity until he leaves the White House.

Between this before-and-after division lies an unexplored gray area: Can a president be impeached for attempting to steal an election while he was not yet in office? On the one hand, actions taken by a candidate are not technically an abuse of an office that he does not yet hold. On the other hand, crimes committed in pursuit of the presidency could count as “high” in the sense that they are connected to the presidency even if they are not committed in office.

The decision would lie with Congress …. [more]