By Bert Fields and Pierce O’Donnell
With the appointment of the untouchable Robert Mueller as Special Counsel, President Donald Trump faces the realistic prospect of impeachment. His grip on power is more tenuous than his advisors and he might think because the President can be impeached for conduct not rising to the level of criminal conduct.
Article II, Section 4 of the Constitution spells out the grounds for removing the President:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The framers adopted, without definition, the words “high crimes and misdemeanors.” What did they have in mind? This concept was derived from longstanding English usage for removal of high-level government officials for misconduct, having been applied as early as 1386 in the first known impeachment – of the King’s Chancellor, the Earl of Suffolk. Suffolk was accused of breaking a promise to Parliament to follow a committee’s advice regarding improvement of the kingdom. Another charge alleged that he failed to pay a ransom for the town of Ghent, thereby causing it to fall to the French.
Neither of these charges was a crime but, rather, a dereliction of official duty. Over the subsequent centuries, English impeachments for high crimes and misdemeanors, while often involving serious crimes such as treason, embezzlement, and obstruction of justice, were in other cases based on allegations of noncriminal conduct such as cronyism, wasting public money, negligence for losing a ship by mooring it improperly, abuse of power or trust, and securing a naval commission for a pirate.
Thus, an impeachable offense did not require the commission of a crime. In all these cases, the common characteristic for “high crimes and misdemeanors” was that the public official had abused the power of his office or failed to carry it out properly. There appears to be no indication that, in adopting that familiar phrase with no debate, the drafters of our Constitution intended to change its meaning established over four centuries.
In the 226 years since the Constitution’s adoption, the House has commenced impeachment proceedings against only 18 officials. None of the 18 was charged with treason; two were impeached for bribery, and the other 16 were charged with “high crimes and misdemeanors.”
The Jeffersonians impeached Supreme Court Justice Samuel Chase, a Federalist, in 1804 because they disagreed with his interpretation of the law in a treason trial. Chase was acquitted.
The 1868 impeachment of Abraham Lincoln’s successor, Andrew Johnson, was an unvarnished political prosecution. When the unpopular Southerner fired popular Secretary of War Edwin Stanton, the Radical Republicans in the House charged him with multiple violations of Tenure of Office Act. At trial, President Johnson was acquitted on each of the charges by only one vote.
Richard M. Nixon averted impeachment in 1974 for his cover-up of the Watergate burglary by resigning after the House Judiciary Committee voted three articles of impeachment: (1) obstruction of justice; (2) abuse of power; and (3) contempt of Congress for refusing to comply with the committee’s request for documents. While the first article was a federal crime, the second and third articles entailed misuse of official power. Thus, two of Nixon’s charges were predicated on the assumption that an abuse of power need not be a crime to constitute an impeachable offense.
Finally, President Bill Clinton’s impeachment stemmed from his alleged sexual misconduct with White House intern Monica Lewinsky and Paula Jones. The first article charged him with committing perjury; the second with obstruction of justice.
Clinton was acquitted on both articles on February 12, 1999. But his trial left unresolved the types official misconduct that qualify as “high crimes and misdemeanors.
Nevertheless, history teaches us that even if Mueller finds that the President himself committed no crimes, he may still be impeached for noncriminal conduct qualifying as “high crimes and misdemeanors” such as the following: attempting to hinder an official investigation of your former National Security Advisor, political associates or yourself, a pattern of lying to Congress or the public on matters of national significance, refusal to enforce valid laws, hiring your National Security Advisor while under FBI investigation, , recklessly divulging highly classified information to Russia, and various forms of abuse of power.
In such instances, the President would have failed to honor his oath “to faithfully execute the Office of President of the United States” or “to take care that the laws be faithfully executed” as required by Article II, Section 3 of the Constitution.
And that would provide legal justification for impeachment.
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Bert Fields and Pierce O’Donnell are trial lawyers and partners in the Los Angeles law firm of Greenberg Glusker Fields Claman & Machtinger LLP. They have written extensively about English and American legal history.