Washington: Many Americans now believe that President Trump should be removed from office. Increasingly, calls for impeachment have merged with allegations that Trump is a criminal. Only a thorough investigation can reveal whether Trump has actually broken the law. But regardless, it is wrong and dangerous to suggest that proof of criminal offenses is essential when deciding whether to impeach.
It’s easy to understand the recent focus on criminality. It would be a very big deal if the president committed a crime. Further, the Constitution is frustratingly vague in defining grounds for removal: “Treason, bribery, or other high crimes and misdemeanors.” Given that ambiguity, tying impeachment to the criminal code feels comfortingly objective. It also neatly distinguishes impeachability from cruelty, incompetence and stupidity — none of which justifies removing a president.
Why, then, do we object to equating crimes with impeachable offenses? There are two reasons: inconsistency with the Constitution and harm to the political process.
To start, there is little evidence that the phrase “high crimes and misdemeanors” was understood in the 1780s to mean indictable crimes. Rather, the Framers were broadly concerned with abuse of power, corruption and injury to the nation. At no point did any delegate at the Constitutional Convention link this safeguard against presidential betrayal to the intricacies of a criminal code. In fact, delegates did the opposite, invoking a wide array of offenses that could justify removal.
This position was echoed by leading minds of the founding era. In Federalist 65, Alexander Hamilton argued that impeachable offenses are defined by “the abuse or violation of some public trust.” A few years later, James Wilson echoed Hamilton. He explained that impeachable offenses “come not … within the sphere of ordinary jurisprudence.” Rather, “they are founded on different principles, are governed by different maxims, and are directed to different objects.”
The history of criminal law supports this understanding. The Framers took a narrow view of federal authority to define crimes, largely reserving that role for the states. Congress, they expected, would focus largely on crimes such as counterfeiting and piracy. Accordingly, until a paradigm shift in the early 20th century, federal criminal lawcovered relatively few offenses. More important, it was rife with arbitrary rules meant to respect now-obsolete boundaries on Congress’ power.
This haphazard character would have made federal criminal law an improbable tool for defining “high crimes and misdemeanors.” Why limit the impeachment power to crimes, while giving Congress hardly any power to create criminal law?
Even today, following a massive expansion of federal power, our criminal code is an inadequate measure of impeachment. Imagine a president who promises to pardon anyone who attacks gay couples; or deliberately refuses to protect the nation from foreign attack; or promises to endorse any business that fires employees who vote against him. Although this conduct may not be criminal, it is far more dangerous to our political system than most crimes enumerated in the U.S. Code.
Of course, that isn’t to say criminal law is irrelevant to impeachment. Our criminal code identifies many terrible acts that would surely warrant removal if committed by the president. Moreover, it’s hard for a leader to claim that he acted in good faith if he broke a criminal law. And within the blast furnace of political combat, people of all viewpoints know that criminal codes identify forms of wrongdoing that society has forbidden in general — not just when faced with a specific scandal.
But it mustn’t be forgotten that our criminal code is not a comprehensive list of acts that might imperil democracy if committed by the president. The Constitution doesn’t compel us to let a corrupt or tyrannical leader off the hook just because his offenses aren’t crimes. Impeachment is mightier and savvier than that.
In addition, there are major societal downsides to an obsession with criminality in impeachment debates. That tendency encourages partisans to warp the criminal law to fit their latest debates over presidential conduct. Even more troubling, it stifles the public’s ability to engage in a productive dialogue about the use of presidential power. Jamming political debates into a criminal law framework often obscures what’s really at stake. A focus on criminality makes these issues seem legalistic and technical — the province of fancy lawyers, not ordinary Americans.
That problem now looms larger than ever. Since the 1990s, impeachment talk has become a fixture of our public discourse. This development has pushed politics toward partisan extremes. It has also accelerated a disturbing trend toward viewing our political adversaries as crooks. When the president’s opponents are quick to call for impeachment, and when impeachment is immediately equated with criminality, we may lose the ability to disagree with each other in good faith.
Unnerving as it may be, we can’t fall back on criminal law to escape the tough political judgment that impeachment requires of us. Ultimately, when we think about “high crimes and misdemeanors,” here is what we must ask: Will we survive this presidency, and, if we do, what kind of nation will we have become?