Impeach Trump without a crime, unlike our criminal presidents

Summary: The impeachment of Trump shows American politics at its full dysfunctionality. Here is a legal analysis of a key aspect of the articles of impeachment.

Impeachment procedure: gavel, book, and flag
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Impeachment for our foes, but not for our friends!

LBJ and Bush Jr. lied us into wars. Obama signed a treaty and implemented it without Senate approval. Obama killed US citizens while they were driving – without verdicts, without trials, without warrants. Bill Clinton lied under oath to hide behavior that would have gotten any CEO immediately fired. But Trump is an enemy of the establishment, so his sins will be prosecuted severely.

Imagine how different the situation would be if Congress announced that they would no longer ignore crimes by presidents – and use their full powers to enforce the Constitution. That would be the beginning of a new America.

Impeachment of the President Normally Requires a Crime.

Samuel Estreicher and Christopher Owens.
Excerpt from an article published at Justia’s Verdict, 7 Jan 2020.

For the first time in our history, a President has been impeached by the House of Representatives for conduct not alleged to be a crime. The impeachment of Andrew Johnson and William J. Clinton, as well as the impending impeachment of Richard M. Nixon, all involved alleged crimes, while some of the additional articles of impeachment did not.

On December 18, 2019, a majority in the House approved two articles of impeachment against President Trump: one for “abuse of power” and the other for “obstruction of Congress.” Neither article states a crime or even a statutory violation. Unlike established crimes or other offenses, neither article contains required elements against which proof of violation can be ascertained. Whatever the Senate ultimately does, Trump’s impeachment is a grave moment for the union and hopefully one that does not result in substantial damage to the authority of the presidency and our civic culture.

The President’s behavior in suspending defense aid to Ukraine ostensibly in order to wrest from our ally an announcement that it would investigate the affairs of the son of a political rival should be condemned by Congress, but is it impeachable conduct? On that question, we have to be guided by uniform principle: what will be deemed sufficient for Presidents whom we dislike will also provide the standard for impeaching administrations that we favor. There needs to be some objective, nonmalleable standard of misconduct lest, especially in today’s polarized environment, impeachment becomes too easy a vehicle for the party in control of the House to be able to hobble an administration of the opposing party over partisan differences. …

The noncriminal-offense interpretation is also difficult to square with other aspects of the constitutional text. …

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.

Commission of a crime is necessary, on this view, for presidential impeachment and removal but not every crime comes within the class of “other high Crimes and Misdemeanors.” In the context of President William J. Clinton’s impeachment, there was no dispute that he had committed the federal crime of lying under oath to a grand jury. The question was whether lying about a private sexual relationship with an intern sufficiently implicated the President’s public duty to constitute a “high Crime and Misdemeanor”. …

———— See the full article! ————

About the authors

Samuel Estreicher

Samuel Estreicher.

Samuel Estreicher is the Dwight D. Opperman Professor at the NYU School of Law. He is also Director of the Center for Labor and Employment Law and Co-Director of the Institute of Judicial Administration. See his page at the university website.

Christopher Owens.

Christopher Owens is a third-year law student at New York University School of Law. He has a B.A. from Brown University and an M.P.P. from the University of Michigan.

About Justia

Justia is an American website specializing in legal information retrieval. It was founded in 2003 by Tim Stanley, formerly of FindLaw, and is one of the largest online databases of legal cases.

More articles at Verdict about impeachment

For More Information

Ideas! For your shopping, see my recommended books and films at Amazon. Also, see a story about our future: “Ultra Violence: Tales from Venus.

The best summary I have seen of UkraineGate: “A Weak Whistleblower, a Ridiculous Impeachment” by Peter van Buren at The American Conservative – “This isn’t about the law; it’s about circumventing another vote by the deplorables in 2020.”

If you liked this post, like us on Facebook and follow us on Twitter. See all posts about ways to reform Americaabout Russiagate, about impeachment, and especially these…

  1. Why do Democrats want to impeach Trump?
  2. The amazing Trump-Ukraine-Whistleblower story in a nutshell.
  3. The best analysis of RussiaGate: its effects & results – By Emmet T. Flood, special counsel to the President.
  4. Reviewing “Ball of Collusion”, the big book of 2019 about RussiaGate.
  5. The amazing Trump-Ukraine-Whistleblower story in a nutshell.
  6. See behind the impeachment stories to learn about America.
  7. Welcome to Third World America. Stand by for a coup.
  8. Impeachment is too gentle a punishment for this crime.

Two citizen’s guides to impeachment

Two measured and comprehensive looks at this critical and seldom discussed (until recently) subject.

To End a Presidency: The Power of Impeachment.

By Laurence Tribe (Harvard law professor) and Joshua Matz (Georgetown law professor).

Impeachment: A Citizen’s Guide.

By Cass R. Sunstein, Harvard law professor (2017).

To End a Presidency: The Power of Impeachment
Available at Amazon.
Impeachment: A Citizen's Guide
Available at Amazon.

29 thoughts on “Impeach Trump without a crime, unlike our criminal presidents”

  1. What do you think of calls to abolish the Electoral college?

    It seems more and more like its moving towards a naked power grab: “By any means necessary” as they would say.

    1. info,

      “It seems more and more like its moving towards a naked power grab: “

      Yes. It is, of course, idiotic. What is the maximum accuracy with which 130 million votes can be counted? What’s the procedure for deciding when the margin is too close to call? That is, sequential recounts give different results.

      1. You know they have to count the exact same number of votes whether we have the Electoral College or popular vote right?

      2. Chris,

        “You know they have to count the exact same number of votes whether we have the Electoral College or popular vote right?”

        No. The EC vote is by State, so a close call in one state does not require a recount in other states.

        Also, the 25th Amendment covers contested elections. And if push comes to shove, the Electors can personally decide whom to vote for (which would generate some interesting court challenges).

  2. I don’t love Trump, and I don’t hate Trump. Can say the same for those before him as well. He’s just another in a long line of flawed individuals we’ve had occupying the WH as our ‘leader’.

    Trump was an outgrowth of Obama, whom himself was an outgrow of Bush II. The ‘center’ seeking real change from the serious dysfunction of DC. If anything, Trump may be the closest we’ve had to an ‘outsider’ in a very long time. Clearly they system hates him for being there.

    The more they’ve come to hate Trump, the more I’ve come to like him. Not so much because I actually ‘like’ him, but because I truly hate the cesspool that DC has become.

    In that vein, for the first time in my near 60 revolutions around the sun, I may actually volunteer to help ‘get out the vote’ for him. My first political support for a candidate — ever.

    Having watched the full-on TDS of the left, in reality, Trump is really not so bad. Yeah he’s crude, he’s rude, he lies, he’s a show off, and he can be thin skinned and totally obnoxious. In other words, he is truly ‘one of us’ because that’s what the electorate has become even though they don’t wish to admit it.

    I’ll take ‘one of us’ over ‘one of them’ (DC beltway swamp rats) any day of the week.

    1. Raymond,

      (1) That’s a fake quote. It first appeared in 1849 as “the special providence over the United States and little children”, attributed to Abbé Correa. There is no reliable evidence that Bismarck even repeated it.

      (2) The Founders did not assume that the US public would elect super-genius-statesmen to Congress. They assumed that we would elect people much like ourselves. Which we have. That we mock the people we vote for says more about us than it does about them.

  3. The Man Who Laughs

    “The President’s behavior in suspending defense aid to Ukraine ostensibly in order to wrest from our ally an announcement that it would investigate the affairs of the son of a political rival should be condemned by Congress, but is it impeachable conduct? ”

    I think it deserved praise, not condemnation. Biden doesn’t get some sort of immunity totem for being a Presidential candidate, and that whole business about his coke addled son stinks. This is starting to make me think of the Three Abominations of Nixon, namely the things he was actually hounded out of office for. First, he was right about Alger Hiss before the public release of the Venona decrypts proved Hiss’ giult beyond any possible doubt. second, he inherited the war that John Kennedy and LBJ had taken us into and which was lost before Nixon ever sat in that bog Chair in the Oval Office, and he had to retreat from it on the best terms he could manage. (And get back as many of the POWs as he could.) Third, he crushed George McGovern in 1972 and proved to anyone with eyes to see that Middle American wanted no part of what the Democratic party was mutating into.

    Thus we have now, the Three Abominations of Trump. 1.) His election exposed a rat’s nest of malfeasance by the security agencies that tried to rig the election and frame him. (Mostly because they couldn’t shut about what they’d done and left a paper trail a mile wide) 2.) He attempted, however ineffectually, to conduct American foreign policy in American interests against the wishes of the career national security priesthood. 3.) He tried to investigate the Ukraine related corruption that likely involves a broad swathe of official Washington.

    I could add more abominations, like trying to restore sanity to immigration policy, but maybe it would be easier to say that Trump is being impeached for who he is.

    To quote a line from Warren Zevon “Now don’t protest your innocence / Only the dead get off scott free. / When the judge says ” Who done it?” / You’ll be crying “Not Me! Not me!”

    1. It has been said – and I agree – that he’s being impeached to prevent his re-election.
      They have also been planning this ever since he was elected, but the “crime” for which he’s being impeached did not happen until last June.
      Something else that’s odd is that President Obama was overheard in a hot mic moment telling Russian President Dmitry Medvedev that he’d have more flexibility after he was elected. How did he know he was going to be re-elected? Were the Democrats rigging the election then?

      1. Randolorian,

        It’s too early to say. However, there are few signs that impeachment will backfire on the Democrats. So far it looks like there has been no impact on public opinion at all.

      2. 4times,

        “How did he know he was going to be re-elected?”

        Because he was confident. CEO, salespeople, and politicans – all require massive self-confidence to survive in their jobs.

  4. Will this current impeachment process become one of the primary channels through which our current conception of ourselves as a political unity begins to disintegrate?

    Will new conceptions of political order then begin to emerge through both violence and different understandings of the structure of authority?

    Is the merging of violence with different conception of political representation (oligarchy, democracy etc.) set a foundation for redefined conceptions of the enemy?

  5. I am assuming, perhaps erroneously, that our passions, especially hatred/ressentment/anger and a desire for revenge are now in the drivers seat eroding traditional codes of self-restraint on all sides.

    My guess is that emotionally we are now beyond the restoration of civility and that increasing strife, with the current impeachment process as one catalyst, will help contribute to an era where we will
    more and more refuse to see our opponents as fellow citizens.

    1. James,

      You bring up important matters that we can only guess at. My guess is that we have lost our passion about politics and liberty. Instead, we see politics as self-expression – “I’m in the resistance” or “I love Trump’s MAGA!” – and entertainment.

      All the froth is shallow emotion, like people’s enthusiasm for the lastest rock star or TV show.

      Time will tell who is correct.

  6. Robert Morrison

    How much criminal behaviour are you willing to accept from your president?
    How much immoral behaviour are you willing to accept from your president?
    What sort of lie would you consider “crossing of the line” for a president?

    There are entirely different standards of what constitutes an offence worthy of prosecution if an individual is wealthy as opposed to average or poor.

    1. Robert,

      (1) “How much criminal behaviour are you willing to accept from your president?”

      What do you mean by criminal? Such as Clinton’s perjury? The articles of impeachment do not allege any criminal behavior.

      (2) “How much immoral behaviour are you willing to accept from your president?”

      Western political tradition does not provide much basis for removing officials for non-criminal immoral behavior. Lying is common. I cannot recall anyone removed for violating one of the seven deadly sins: pride, greed, lust, envy, gluttony, wrath, and sloth. Adultery (lust) is common. As is greed: modern presidents often enrich themselves from the office – such as LBJ and Nixon getting millions in “home improvements” while in office.

      Again, the article of impeachment against Trump don’t alleged “immoral” actions.

      (3) “What sort of lie would you consider “crossing of the line” for a president?”

      Personally, I would have removed LBJ and Bush Jr. for lying to get us into wars. I would have impeached Obama for the assassination of US citizens without verdict, trial, or even warrant. I would have had Congress overturn Obama’s executive order implementing the Paris Climate treaty without Senate approval, and removed him if he ignored the Congressional action (which I doubt he would have done).

      (4) “There are entirely different standards of what constitutes an offence worthy of prosecution if an individual is wealthy as opposed to average or poor.”

      Yes, that is the rule pretty much everywhere across history. Certainly in the US, where we have always had systems of High, Middle, and Low justice. What’s your point?

      1. Robert Morrison

        1) I was not specifically referring to the current president, but that is obviously the context of this discussion, let’s take the recent GAO decision: https://www.gao.gov/assets/710/703909.pdf as an example.

        I am under the impression that a criminal act is not necessary for impeachment.

        2) I don’t think a reasonable person could argue that the current president has not engaged in many acts which constitute immoral behaviour. When does this become problematic for the average citizen? I admit that I am appalled by the lack of “giving a crap” about the behaviour of Mr. Trump has not generated significant public backlash.

        3) Thanks for your thoughts on this one. I agree.

        4) My point is that this is unjust and allows wealthy and/or powerful individuals to commit crimes without compunction that others would be locked away for.

      2. Robert,

        (1) The GAO has been issuing such reports for a long time. Nobody cares. It is a Congressional agency, and so says that Presidents should pay a lot more attention to Congress than they do.

        (2) “I am under the impression that a criminal act is not necessary for impeachment.”

        Did you read this post?

        (3) “I don’t think a reasonable person could argue that the current president has not engaged in many acts which constitute immoral behaviour.”

        Did you read my reply to your first comment?

        (4) “My point is that this is unjust …”

        How nice. Lots of things about this world are unjust. What are you going to do about it? That’s all that matters.

        My opinion, fwiw, is that the most recent opportunity to enforce moral standards on presidents was Clinton’s impeachment. He clearly broke the law. He did so to conceal behavior that has gotten quite a few CEOs fired immediately. Actions against presidents require support from the president’s own party – to gain the necessary Senate super-majority AND the appearance of legitimacy. The strong feminist component of the Democrats could have pushed them into action – if the feminists acted according to not just their principles, but also to the standards they impose on CEOs and Republican officials. They didn’t.

        Another such opportunity might not come along for a very long time.

        What did you do during this episode, if you were an adult in 1998?

  7. Robert Morrison

    2) I did.

    Is your point that the opinions of the authors, esteemed though they may be, should not be questioned?
    There are other legal professionals who do not agree that a crime is a necessary condition.

    3) I did.

    Although I didn’t make it clear, I am not only talking about this current president and the impeachment process. In a reasonable world, there would be no chance of re-election for Mr. Trump, or any other politician who has demonstrated that they are thoroughly immoral and/or commit criminal acts.

    4) I am discussing it in a public forum in the hopes of raising consciousness.

    “Another such opportunity might not come along for a very long time.” I think there is a solid argument to be made that right now is such a time. It’s not going to happen, but that doesn’t mean it shouldn’t.

    I am not an American. The current leader of my federal government has also committed at least one crime, and arguably more, for which he has not faced any consequences. I make this point when I can.

    I have had a discussion with my federal representative about this and other matters.

    What would you suggest is suitable action to take, beyond what I have described?

    1. Robert,

      (1) “Is your point that the opinions of the authors, esteemed though they may be, should not be questioned?”

      No. Rather that they are representative thinking of legal experts for centuries has been that impeachment was for actual crimes. As explained in this article (see the Cornell Law summary for additional references). To read this and say that you “were under the impression” suggests that you had some basis for disagreement. Otherwise a contrary “impression” suggests that you didn’t read it.

      (2) “there would be no chance of re-election for Mr. Trump, or any other politician who has demonstrated that they are thoroughly immoral and/or commit criminal acts.”

      There is no history in the US of presidents being removed for immoral acts – and even the partisan House didn’t allege criminal acts. So your statement seems pretty …odd. Why should supporters of Trump change their minds?

      (3) ” I think there is a solid argument to be made that right now is such a time.”

      That makes no sense whatsoever. The Democrats had their time at bat to strike a blow for morality. Allowing them to change their minds and remove Trump for grounds insufficient to remove Clinton would be suicidal for the GOP. Politics is the realm of policy in action, not a philosophical debate over brandy and cigars.

      (4) “What would you suggest is suitable action to take, beyond what I have described?”

      Since you don’t mention your nationality, I have no idea. It depends on your nation – its form of government, its culture, its history. I am skeptical that you don’t already know the action, and more so that you can’t easily get suggestions from your peers.

      1. Robert Morrison

        1) Here are some differing opinions.

        Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University: https://www.lawfareblog.com/must-impeachable-offenses-be-violations-criminal-code

        Author is not identified: https://www.crf-usa.org/impeachment/high-crimes-and-misdemeanors.html

        Nikolas Bowie from Harvard in the “Harvard Law Review”: https://harvardlawreview.org/wp-content/uploads/2018/12/vol132_Bowie.pdf

        2) I admit I am being idealistic. However, because of the actions of my countries current leader, I changed my vote in the last national election.

        3) Your statement that Clinton was “the most recent opportunity to enforce moral standards on presidents was Clinton’s impeachment”. I think there is at least as strong an argument for the removal of President Trump on similar grounds. We could argue about morality and criminality indefinitely.

        4) I am Canadian.

        Indulge me, if you would. What other actions would you suggest beyond my vote, my advocacy, and my discussions with my elected representatives if I were an American?

      2. Robert,

        (1) I, this post, and the Cornell article I cited said that opinions differed on this subject. But all agreed that the need for a predicate crime has been the consensus opinion forever. The “Get Trump” crowd in academia (US law schools are hard-left) have thrown all that over in their lust to overturn the 2016 election.

        I suggest that you look for articles written before Trump that say impeachment does not require a criminal predicate. There are some, but not many. Which is why neither of those articles cites a single example in the past 237 years of a US Federal official removed from office except for a crime.

        (2) “Author is not identified”

        While I applaud your ability to fish on google for material that supports your views, imo it is silly to cite an unnamed author on some obscure website as an authority.

        (3) “Indulge me, if you would”

        Here are 140+ posts with ideas, from a wide range of perspectives, of how people can work to reform their nation’s politics.

  8. Robert Morrison

    I thought the article with the unnamed author made an interesting point, or I would not have included it.

    Thanks for an interesting discussion.

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