IMPEACHABLE ACTS

Attorney General Barr’s summary of the Muller Report appears to indicate that Trump did not commit criminal conspiracy with the Russian Government, but it’s still uncertain if there’s enough evidence to convict the President on obstruction of justice. However, whether there’s enough evidence to convict President Trump of a crime isn’t really the question at hand, most legal experts believe a sitting President can’t be indicted on criminal charges. The immediate question is, is there sufficient evidence to warrant impeachment? That’s a question for the House of Representatives to address, not the Attorney General. But it does bring up the question of, what exactly is an impeachable offense?

First, the Constitution makes clear that an impeachment is not a criminal trial, the only question that is addressed during these proceedings is the removal of the individual from office. Any criminal charges should be prosecuted in an ordinary court of law. Second, the grounds for impeachment according to the Constitution are as follows, “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.” There is not necessarily a presumption of innocence or a requirement of proof beyond a reasonable doubt, and there is no appeal of a conviction in an impeachment trial. 

Treason and bribery are fairly straightforward and, despite what some on the left have argued, there doesn’t seem to be any convincing evidence for these charges. That leaves high crimes and misdemeanors, which is less clear than it might at first seem. In modern legal language a misdemeanor is a minor crime which usually results in less than a year in jail. Using this meaning a president could be removed from office for stealing office supplies, but that is not the meaning the writers of the Constitution relied on. The phrase “high crimes and misdemeanors” had been used for centuries in England in relation to removing people from office.  There’s wide agreement among Constitutional scholars that the founders were basing their use of the phrase on the English understanding of its meaning. Essentially, the phrase means a significant betrayal of the public’s trust. Some examples of high crimes that could lead to removal of officials in England included, misapplication of funds, abuse of official power, neglect of duty, contempt of Parliament, corruption and “giving pernicious advice to the Crown.”

It’s important to understand that impeachment does not require an indictable crime to have taken place. The founders spent considerable time debating the act of removing public officials from office. They wanted to make it difficult enough that individuals would not be removed for frivolous or partisan reasons, but they also wanted to make sure that a corrupt person didn’t stay in office on a technicality. Here’s an example of a non-criminal act that would constitute an impeachable offense. If it was proven that a President steered American foreign policy in favor of a country in order to benefit the business interests of their family, contrary to American interest, that would constitute a serious breach of the public’s trust, even though it might not be a crime. In the past several Federal judges were impeached and removed from the bench for habitual drunkenness on the job.  Again, not a crime, but a violation of the public’s trust. 

There are certainly gray areas in what constitutes an impeachable offense and there’s no way of realistically keeping politics out of what is essentially a political process. It’s nearly certain that President Trump committed a felony campaign finance violation when he paid off Stormy Daniels and didn’t report it as a campaign expense. However, that alone probably is not an impeachable offense even though it is an indictable crime, it simply doesn’t rise to the level of a high crime or misdemeanor. However, what if the President had 4 or 5 unrelated crimes of similar severity, at what point does it become a cause for impeachment? There’s no clear answer for that. 

In our current situation the House of Representatives needs to see the unredacted Muller Report to help them make the determination if a high crime or misdemeanor was committed. Based on what is known publicly and what we can gleam from A.G. Barr’s summary of the Muller Report, it appears there is significant evidence that the President committed obstruction of justice, regardless of whether the evidence supports a criminal indictment. In addition to the obstruction charge, there is evidence of multiple felonies involving the Trump Foundation, campaign finance, banking transactions, suborning perjury, tax evasion and lying to Federal law enforcement officials. Again, we don’t have all the evidence yet, some of this is speculation, but it’s difficult to see a scenario that wouldn’t justify impeachment proceedings.

 

Despite the mounting evidence, it’ll likely end up depending on whether the Democratic leadership of the House of Representatives feels it’s to their advantage to impeach the President or leave a politically wounded President in place for the election. In an ideal world the decision to impeach and then convict would be based on facts and the interest of the American people. In the real world the decision to impeach is primarily a political decision. This likely means the Democrats won’t impeach out of fear of a political backlash and a desire to run against Trump in 2020, and Republicans won’t support impeachment out of fear of dividing their party. The result of this is to set the precedent of allowing a corrupt President to act with impunity, this is a lesson future Presidents are likely to take to heart when the legal process doesn’t allow them to enact the policies they desire.