The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here is the introduction:
Today the House Judiciary Committee announced two articles of impeachment. The first article alleges that President Donald Trump abused his power by asking the Ukrainian President to publicly announce investigations into his political opponent, Joe Biden, and a "discredited theory" that Ukraine, not Russia, had interfered in the most recent presidential election. The second article charges that President Trump obstructed Congress by refusing to comply with impeachment-related subpoenas. In opting for these two offenses—and in excluding three others that had all been plausible—House Democrats have narrowed their charges to the allegations that are the easiest to see, if you see the world, and this presidency, as they do.
Here is the conclusion, which addresses some of the issues Orin raised in his earlier post.
The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly-articulated offenses, the burden of charging a president with "abuse of power" is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with "obstruction of Congress." This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton.
Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States Code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president's duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.
I hope to have much more to say about these issues in due course.