The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Let's assume, for the moment, that the "nothing burger" of a scandal is, in fact, a real burger. In other words, let's assume that candidate Donald Trump did collude, conspire, work hand in glove with Vladimir Putin to leak damaging emails from the Hillary Clinton campaign. Further, assume for a moment that such an act, if committed by a federal officer, would be a high crime and misdemeanor. This leaves us the following interesting question: Can a federal officer be impeached for acts committed when he was not a federal officer?
One might have thought "no." During the Bill Clinton impeachment saga, some of President Clinton's defenders insisted that officers could not be impeached for "private acts" unrelated to the office. It would follow, it seems, that an officer could not be impeached for acts that occurred before he was in a federal office. After all, those acts could not amount to an abuse of federal office. Moreover, even if one supposed that the clause reaches private acts, one might have supposed that the clause implicitly concerns only those official and private acts that occur while an officer occupies a federal office. Again, the Impeachment Clauses seem to be about policing the conduct of federal officers and not about the prior acts of those officers.
But in 2010, the House impeached, and the Senate convicted, former District Court judge G. Thomas Porteus. Article II of the Articles of Impeachment recited a "longstanding pattern of corrupt conduct" that began while Porteus served as a state court judge. For years, State Judge Porteus solicited and accepted gifts in return for assisting a bail bondsman. Article IV recounted lies told to the FBI and the Senate, deceptions that aided Porteus's successful quest for a federal judgeship (he was appointed by President Clinton). The other two Articles, on my reading, relate to his conduct while in federal office. Nonetheless, Porteus was impeached, convicted and removed from federal office for acts that occurred before he was a federal officer.
The sacking of Porteus by a unanimous Senate signals a couple of things. First, federal officers can be impeached for acts committed before they became federal officers. Second, such officers can be impeached and removed for their private acts. Article IV did not describe the actions of a federal or state judge. Rather it described the actions of a federal office seeker.
These lessons, drawn from an extremely small sample of one, perhaps make sense. Lying to the Senate should be an impeachable offense, regardless of whether one occupies a federal office at the time of deceit. And I suppose that private acts committed as a private citizen also warrant impeachment, especially when those lies are meant to help secure the office.
This leaves open the questions of whether the nothing burger will ever transform into a genuine burger and whether encouraging the Russians to leak information about Hillary Clinton would be a "high crime and misdemeanor."