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11/24/2019

Keith Whittington (and Alexander Hamilton) on Impeachable Offenses
Michael Ramsey

At Lawfare, Keith Whittington: Must Impeachable Offenses Be Violations of the Criminal Code?  From the beginning:

Supporters of President Trump have regularly argued that there can be no impeachment without a violation of the criminal code. So long as the Mueller investigation held the possibility that the president might be linked to actual criminal activity, the question of whether impeachable offenses had to be indictable crimes was not a particularly salient one for either the administration’s critics or its defenders. Given that the House has now focused its attention specifically on the administration’s actions in regard to Ukraine, the question of whether the House could constitutionally pursue an impeachment in the absence of a violation of the criminal code has become more pressing.

...

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.

...

Examining the relevant history, however, makes clear that this understanding of impeachment is unnecessarily constrained. The constitutional framers were familiar with the impeachment device from English history, and after independence, it was quickly incorporated into American state constitutions. In English parliamentary practice, impeachment was a tool for checking the king and his ministers, and the term “high crimes and misdemeanors” developed within that practice to refer to misconduct by public officers. William Blackstone noted that “oppression and tyrannical partiality ... in the administration and under the colour of their office” could often escape ordinary justice and was therefore accountable “by impeachment in parliament.” Famously, more than a century before the American Revolution, the House of Commons had impeached the Earl of Strafford for attempting “to subvert the Fundamental Laws and Government of the Realms ... and instead thereof, to introduce Arbitrary and Tyrannical Government.” The British imperial officer Warren Hastings was embroiled in an impeachment scandal at the time of the Philadelphia Convention, and the House of Commons eventually charging him with “arbitrary, illegal, unjust, and tyrannical Acts” that rendered him “guilty of High Crimes and Misdemeanors.” ...

I'm inclined to agree.  Note, though, that it's an originalist argument (by an originalist scholar).  Nonoriginalists might want to be careful embracing it.

RELATED:  Jonathan Adler has more at Volokh Conspiracy: Hamilton on Impeachment.  Quoting Hamilton, Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.