The Volokh Conspiracy

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Volokh Conspiracy

Impeachable Offenses Need not be Criminal Offenses


As Democrats continue to poll test what exactly will be included in the inevitable articles of impeachment and Republicans continue to hunt for a shiny object that might distract voter attention from the president's actions, I revisit a very basic question relating to the impeachment power—Are "high crimes and misdemeanors" limited to violations of the federal criminal code? Since Trump's inauguration, Alan Dershowitz has been pushing the claim that the House cannot launch a valid impeachment without evidence of an actual felony, and that's another thing about which he is wrong when it comes to impeachments. Trump supporters are now embracing a new chant of "where's the crime?" It seems like a good time to reemphasize that it is possible to commit an impeachable offense without engaging in conduct that might get you prosecuted in an ordinary court of law.

The whole piece is over at Lawfare. Check it out. Here's a taste:

Despite what Trump's supporters say, however, the president can commit an impeachable high crime without violating the federal criminal law. To conclude otherwise would be to ignore the original meaning, purpose and history of the impeachment power; to subvert the constitutional design of a system of checks and balances; and to leave the nation unnecessarily vulnerable to abusive government officials.

. . . .

A president who egregiously misuses the powers of his office or engages in conduct grossly incompatible with the dignity of his office has forfeited the right to continue to occupy his office and is subject to the constitutional judgment of the Senate acting as a court of impeachment. The House and the Senate might conclude that accusations of misconduct are ungrounded or that the remedy of removal is unwarranted, but the misconduct that they might assess need not involve violations of the criminal law.