Support The Bulwark and subscribe today.
  Join Now

Impeachment in an Alternate Universe

Is every crime impeachable? And does the president have to commit a crime to be impeached?
November 25, 2019
Impeachment in an Alternate Universe
(Photo by Andrew Harrer-Pool/Getty Images)

It’s not hard to understand why Democrats began talking about “bribery” rather than “quid pro quo” in their pursuit of President Donald Trump. Bribery is one of only two specific impeachable offenses listed in the Constitution (the other being treason). It’s also a crime, and defining presidential conduct as criminal is at the heart of impeachment efforts.

President Nixon was accused of “obstruction of justice” in the first article of impeachment voted by the House Judiciary Committee in 1974. But the committee also voted out two other articles, charging Nixon with abuse of power and contempt of Congress, one of which is not a crime.

Bill Clinton was impeached by the House for perjury and obstruction of justice. But the GOP-controlled House rejected two other articles on impeachment, one of which charged Clinton with the non-criminal act “abuse of power.”

And therein lies a debate that arises every time impeachment looms: Does an act have to be criminal to be impeachable? Was Rep. Will Hurd using the right standard when he said that while Trump’s Ukraine approach was wrong, it did not rise to the level of a crime?

A couple of thought exercises should demonstrate that Hurd—and others insisting on the requirement of criminal conduct—are wrong.

And in understanding why they are wrong, we come to two ways to think about impeachment.

First: Are there some acts which, while clearly criminal, would not rise to the level of impeachment?

Second: Are there some presidential acts that are repugnant, despicable, beyond the pale—but that may nonetheless be neither criminal nor impeachable?

It’s not hard to conjure a scenario where a president should and could be removed from office for non-criminal conduct. Suppose that, on February 1, the president said: “This winter weather is intolerable, and I’m wrung out. I’m going to Bora Bora, and I’ll be back on Memorial Day. I’m going on my own nickel, and I’m going off the public payroll. I’m taking the vice-president with me, just in case anyone’s thinking about invoking the 25th amendment. And I don’t want to be bothered by petty Washington business.”

Indolence is no crime, and if there’s no public money involved in this scenario, then there’s no theft of service.

In his defense, the president could point to past examples where presidents have decamped for weeks at a time.

There’s also no doubt that the House would impeach, and the Senate would convict and remove the president from office.

On what ground? One possibility is violation of the oath of office, under which the chief executive promises to “faithfully execute the office” of president. Also, the oath reflects a requirement, set down in Article II, that “he shall take Care that the Laws be faithfully executed.” So impeachment could also charge the slacker with violating the Constitution.

The less fanciful examples—which are more relevant to recent matters—might include the president firing an attorney general or FBI director in order to protect a political ally who is under investigation, or (looking back to Bill Clinton) sending a cabinet member and high-powered Washington lawyer to importune CEOs to find a job for a one-time lover in order to procure her loyalty. In such an example, Congress would not have to find criminal conduct in order to find an “abuse of power” to justify impeachment.

But now consider a possibility rarely examined: Could a president commit a “non-impeachable” crime?

Let’s say there’s a high-dollar fundraising event where the president is hobnobbing with major donors. One of them, fueled by too many trips to the bar, begins to berate the president for reneging on a campaign promise, or an ambassadorship, or whatever. And then the gentleman throws in some choice insults aimed at the president’s spouse or family.

Before the Secret Service can hustle the nuisance away, the president punches him in the nose.

This scenario is an open-and-shut case of battery, which the law defines expansively (there need be no physical injury, no forceful contact, nor even direct contact at all—spitting would suffice). Is there any serious possibility of a president being impeached for defending the honor of his spouse or child?

Even less “defensible” criminal conduct might not justify removal from office. Imagine a president back home on vacation, slipping away from Secret Service protection, getting behind the wheel of a beloved muscle car, and recklessly causing a (non-injurious) accident. Hard to imagine Congress would remove a president for committing such a crime.

But now consider what is, for me, a confounding scenario:

A recording surfaces of a president, talking with a handful of old friends, one of whom asks if the job has changed any fundamental beliefs.

“No,” the president says. “I still believe that the white race is genetically superior to the black race. I still believe that the malevolent power of world Jewry is a threat to our way of life. I still believe that it is God’s will that men are to rule, and women are to serve. I have to enforce the laws as they are; but those beliefs are at the heart of who I am.”

Such noxious sentiments are not criminal. Nor do they violate the oath of office: Presidents do not swear allegiance to the idea of equality. (Indeed, Andrew Johnson and Woodrow Wilson—almost surely among others—were ardent white supremacists.]

So would there be grounds for impeachment? There is a view, espoused by then-Rep. Gerald Ford when he was trying to impeach Justice Willam Douglas—that an impeachable offense is whatever a majority of the House and two-thirds of the Senate think it is.

But an article of impeachment against a bigoted president would have to charge something. What would it say?

One supposes that in such an (unlikely) event the 25th Amendment could come into play. But that would require a majority of the Cabinet and the vice president to declare that the president “is unable to discharge the powers and duties of his office.” And a physically and mentally alert president would be able to challenge that mechanism.

It should go without saying that these examples are unlikely to occur. (We should be so lucky.) But by thinking them through, they help us focus on the real questions about impeachment. And they put the lie to some of the bad arguments against the prospective impeachment of Donald Trump.

Jeff Greenfield

Jeff Greenfield is a five time Emmy winning television analyst and author.