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Samuel Estreicher & Christopher Owens on Impeachment and Crime
Michael Ramsey

At Verdict, Samuel Estreicher & Christopher Owens: Impeachment of the President Normally Requires a Crime.  From the core of the argument:

Although the matter has been contested over the course of our history – and as noted, there has until now been no presidential impeachment (as opposed to judicial impeachments, which proceed under the same constitutional clause as presidential impeachments but perhaps have presented a more intractable problem because of the life tenure of Article III judges) without a crime – the prevailing view among commentators is that impeachment does not require an indictable offense; rather, the “other high Crimes and Misdemeanors” formulation is thought to invite a broader canvass of English common law precedents to include a President’s abuse of authority, other abuse of the people’s trust, or even gross dereliction of duty.

One problem with the prevailing approach is that the English precedents do not themselves yield a clear set of principles capable of deterring abusive resort to impeachment. Indeed, as Blackstone observed in his Commentaries, “mal- administration of such high officers as are in the public trust and employment by public officials” was “the first and principal” “high Misdemeanor” publishable by impeachment in Parliament. Thus, the very technique of interpretation urged by these commentators leads us to a ground for impeachment largely foreclosed by the debates in the Constitutional Convention.

The noncriminal-offense interpretation is also difficult to square with other aspects of the constitutional text. As former Justice Benjamin Curtis, who dissented in Dred Scott v. Sandford, 80 U.S. (19 How.) 393 (1867), argued in defense of President Andrew Johnson, the Constitution refers to impeachment in seven places—references (emphasis supplied) which taken together suggest a legal proceeding to try a criminal offense: (1) the Impeachment Clause’s reference to “Conviction” for “high Crimes and Misdemeanors “; (2) the Senate’s power “to try all Impeachments” (Art. I, § 3, cl.6); (3) the fact that the Chief Justice shall preside when the President is “tried” (id.); (4) the exclusion in the jury trial guarantee for “ all Crimes, except in cases of Impeachment” (Art. III, §2, cl. 3); (5) the pardon clause granting the President the power to “Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment” (Art. II, §2, cl, 1); (6) the requirement that two-thirds of the Senate vote for a person to be “convicted” of an impeachable offense; and (7) the provision limiting the reach of “Judgement in Cases of Impeachment… to removal from Office” (Art. I,§ 3, cl. 7). (Note that, as with certain immigration deportation proceedings, a legal proceeding that involves an adjudication of whether a criminal offense has occurred is not necessarily a criminal proceeding triggering constitutional double-jeopardy considerations.)

Wherever the Constitution refers to “crimes” or “offenses” the reference is to criminal offenses. Nowhere are such terms used to refer to noncriminal conduct or conduct that could be proscribed without a basis in a preexisting prohibition.

The foregoing suggests a textual basis for an objective standard that provides some constraint on political impulse to misuse impeachment and one that is consistent with the past practice of presidential impeachment—a minimum requirement, or at least a very strong presumption, that the President committed a crime under pre-existing federal law and perhaps certain state law dealing with garden-variety crimes.

(Via Neil Buchanan at Dorf on Law, who disagrees strongly).

A major structural problem with the impeachment-requires-a-crime view, in my view, is that it would not allow impeachment for many presidential violations of the Constitution.  Some of the more likely presidential violations, such as declaring war without Congress' approval or spending money without an appropriation, do not seem to have any obvious checks aside from impeachment, and yet aren't likely to be criminalized.  Without at least the threat of impeachment, these constitutional checks would seem to have little practical effect.  So I think it would be surprising if the founding generation had understood impeachment not to reach constitutional violations.