It seems increasingly likely, notwithstanding (or perhaps because of) special counsel Robert Mueller’s report, that there will never be widespread agreement about whether President Donald Trump engaged in any criminal activity arising out of Russian interference in the 2016 election — and the subsequent investigation into that interference. Perhaps with that in mind, the tweeter-in-chief took to social media on Monday to declare that “Only high crimes and misdemeanors can lead to impeachment. There were no crimes by me (No Collusion, No Obstruction), so you can’t impeach.” Fortunately for the president, he’s not taking my constitutional law class. If he were, he’d be in serious danger of failing.
The first sentence of Trump’s tweet is (somewhat) accurate; Article II, Section 4 of the Constitution provides that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” But there are two critical reasons why it does not follow from this text that Congress “can’t impeach” if “[t]here were no crimes.”
The first reason is the historical understanding of the Constitution’s text. The term “other high crimes and misdemeanors” was understood by the Constitution’s drafters to not refer only to criminal activity. In pre-revolutionary England, the term was used to refer to various forms of official misconduct, including maladministration, that did not (and could not) carry criminal consequences. The Constitution’s drafting history similarly reflects the Founders’ view that the remedy was not limited to those crimes Congress had elsewhere proscribed.
As Alexander Hamilton wrote in Federalist No. 65, impeachable offenses arose from “the misconduct of public men, or in other words from the abuse or violation of some public trust.”
As Alexander Hamilton wrote in Federalist No. 65, impeachable offenses arose from “the misconduct of public men, or in other words from the abuse or violation of some public trust.” And James Madison himself, during a crucial debate in the middle of the First Congress, invoked as an example of an impeachable offense a president who wantonly dismissed government officers for no good reason. As the Congressional Research Service (CRS) found in a 2015 report, “[m]any of the impeachments approved by the House of Representatives have included conduct that did not involve criminal activity. Less than a third have specifically invoked a criminal statute or used the term ‘crime.’”
These historical precedents aside, the idea that a government officer can be impeached for non-criminal misconduct also comports with the broader purposes of impeachment. As the CRS report concluded, “[t]he purpose of impeachment is not to inflict personal punishment for criminal activity.... Instead, impeachment is a ‘remedial’ tool; it serves to effectively ‘maintain constitutional government’ by removing individuals unfit for office.”
Thus, impeachment carries no criminal consequences; the remedy is complete upon the officer’s removal. (As a result, double jeopardy does not apply to subsequent criminal trials in cases in which criminal conduct is the basis for impeachment.) It would make little sense, structurally, to require proof of a crime for a process that is not intended to impose punishment, and the result of which carries no criminal consequences.
The second reason why criminal conduct is not, and never has been, a prerequisite to impeachment is because of how the Constitution structures the impeachment procedure. As the Constitution sets out in Article I, Sections 2 and 3, the House of Representatives has “the sole power of impeachment,” and the Senate has “the sole power to try all impeachments.” The implication of these provisions, as the Supreme Court held in 1993 in Nixon v. United States (not that Nixon), is that disputes over the propriety of impeachments are non-justiciable “political questions.”
In other words, the federal courts have no role to play in reviewing lawsuits challenging impeachments. Whether an officer’s conduct rises to the level of “other high crimes and misdemeanors” is, therefore, entirely up to the House and the Senate. If a majority of the House and two-thirds of the Senate agree on the grounds for impeachment and removal, that is the end of the matter, so far as the Constitution is concerned.
Then-congressman (and now Senate Judiciary Committee Chairman) Lindsey Graham was thus entirely correct in 1999, when he argued that “[y]ou don’t even have to be convicted of a crime to lose your job in this constitutional republic. If this body determines that your conduct as a public official is clearly out of bounds in your role [then impeachment is permissible because it] is not about punishment, impeachment is about cleansing the office.”
This doesn’t mean that Congress should remove government officers willy-nilly. Ever since the 1805 impeachment (but failed removal) of Supreme Court Justice Samuel Chase, Congress has understood that partisan political disagreements, no matter how severe, should not alone provide a basis for impeachment. But even that understanding is a norm, not a rule, and there is plenty of daylight between impeachment for pure partisan disagreement and impeachment for misconduct in office that is not necessarily criminal.
Whether Trump broke any criminal laws is therefore formally irrelevant to whether the House of Representatives has the constitutional authority to impeach him. The House certainly can impeach the president — or any other government officer — for non-criminal misconduct. The harder question is whether the House should do so. But the one point on which we all should be able to agree is that the Constitution commits resolution of that question entirely to our elected representatives in Congress — and not to the president’s Twitter feed or the absence of criminal charges against him.