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State Criminal Laws Applied Against Federal Officials From Day One
Andrew Hyman

As Professor Alan Dershowitz showed during President Trump’s impeachment trial, it is a tough question whether impeachment articles can constitutionally allege  only behavior that was never covered by any criminal law statutes.  I’m not really 100% sure of the answer, and do not claim expertise about it.   But I would like to criticize one particular argument that is all over the place right now: that the framers could not have meant to refer to pre-existing criminal law statutes regarding bribery and the like, because such federal statutes did not exist yet when the Constitution was written and ratified.  To me, that seems like a poor argument, because federal officials were subject to state criminal law from the day the Constitution took effect.

George Washington took his first presidential oath of office on April 30, 1789 in New York.  That’s where the federal government was headquartered until its seat moved to Philadelphia in 1790.  According to the federal Residence Act, Philadelphia served as the capital between 1790 and 1800 while Washington, D.C., was being prepared.  The framers of the Constitution almost certainly foresaw that the federal government would operate within a state, before it could move to a permanent seat of government under its exclusive control, and of course that is what happened.

Maybe the most famous example is a Pennsylvania law (the Gradual Abolition Act enacted in 1780), providing that any slave who entered Pennsylvania with an owner and lived there for more than six months would become free automatically. This law did not exempt President Washington and his slaves, so every six months Washington arranged for each of his slaves to go out of the state, essentially resetting the clock.  Washington obviously would not have done that if he thought he was above Pennsylvania law.

A few days ago, former federal prosecutor Jill Wine-Banks said on MSNBC what many other pundits have said this month: “Other high crimes and misdemeanors are exactly that. It isn’t under the federal statutes that they were talking about. Bribery isn’t under the federal statute because there was no federal bribery crime when the Constitution was passed. It was whatever people thought it was” (emphasis added). More likely, it was whatever state statutes in the 1780s universally said it was.  State laws were binding on federal officials when the Constitution took effect, at least to the extent that federal law did not contradict them.

I am fairly sure that impeachment articles may allege behavior that is not (and never was) barred by any statute, as Jill Wine-Banks said.  But I am also leaning toward the idea that at least one of those allegations must be punishable by criminal law.  After all, the Constitution says: “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”  An impeachment that involves absolutely no potential criminal law liability whatsoever is unusual, and possibly unconstitutional.

UPDATE: Michael Ramsey previously wrote on this blog: “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.”  But haven’t they been criminalized?  Unauthorized warfare is murder, and unauthorized spending is theft.