There Are Still Grounds For impeachment Even Without ANY Crime

corona virus security council resolution Trump impeachment trial PRESIDENT TRUMP grounds for impeachment New Tariffs trump's removal from officeVictoria_Borodinova / Pixabay

The Impartial Congressional Research Service Very Recently Clearly Said So Grounds For Impeachment Even If Crime Is Absent

The question of whether or not impeachment requires the commission – or at least the allegation of – a crime is now being hotly debated, largely between the partisan opponents and supporters of removing President Donald Trump from office, many of whom quote and even seem to rely largely upon historical materials now more than two hundred years old.

But largely ignored is an authoritative answer from an unbiased nonpartisan source which also includes an exhaustive outline and examination of the history of impeachment in this country since the Constitution was written to see how the bare words of the Constitution and the constitutional debates have been defined and understood during that time, notes public interest law professor John Banzhaf.

The Congressional Research Service [CRS], generally regarded as both authoritative and unbiased, issued an extensive report on this and related issues which addressed this very question.

Since it was dated 2015, the analysis was carried out before Trump assumed office, so it was not influenced by his administration, and clearly could not have been written with the current situation in mind.

Its conclusion is clear: impeachment does not require a crime.  Here’s what the summary says:

“Impeachable conduct does not appear to be limited to criminal behavior. Congress has identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.”  It explains:

“The notion that ONLY criminal conduct can constitute sufficient grounds for impeachment does not, however, comport with historical practice. Alexander Hamilton, in justifying placement of the power to try impeachments in the Senate, described impeachable offenses as arising from ‘the misconduct of public men, or in other words from the abuse or violation of some public trust.’

“Such offenses were “POLITICAL as they relate chiefly to injuries done immediately to the society itself.’  According to this reasoning, impeachable conduct could include behavior that violates an official’s duty to the country, even if such conduct is not necessarily a prosecutable offense. Indeed, in the past both houses of Congress have given the phrase ‘high Crimes and Misdemeanors’ a broad reading, ‘finding that impeachable offenses need not be limited to criminal conduct.’  A variety of congressional materials support this reading.” [emphasis in original]

Trump and the laws of impeachment

“The purposes underlying the impeachment process also indicate that non criminal activity may constitute sufficient grounds for impeachment. . . . Grounds for impeachment include abuse of the particular powers of government office or a violation of the ‘public trust’ conduct that is unlikely to be barred via statute. . . .

Congressional practice also appears to support this notion. Many of the impeachments approved by the House of Representatives have included conduct that did not involve criminal activity. Less than a third have specifically invoked a criminal statute or used the term ‘crime.'”

In support of the conclusion that impeachment and subsequent removal may occur even in the absence of any crime, the CRS cites the following examples:

“In 1803, Judge John Pickering was impeached and convicted for, among other things, appearing on the bench ‘in a state of total intoxication.’  In 1912, Judge Robert W. Archbald was impeached and convicted for abusing his position as a judge by inducing parties before him to enter financial transactions with him. In 1936, Judge Halstead Ritter was impeached and convicted for conduct that ‘br[ought] his court into disrepute, to the prejudice of said court and public confidence in the administration of justice … and to the prejudice of public respect for and confidence in the federal judiciary.’  And a number of judges were impeached for misusing their position for personal profit.”

Pickering grounds for impeachment

Addressing the argument that judges might be impeached for actions which would not constitute grounds to impeach a president, the CRS’s report notes:
“the ‘modern view’ of Congress appears to be that the phrase ‘good behavior’ simply designates judicial tenure. Under this reasoning, rather than functioning as a ground for impeachment, the ‘good behavior’ phrase simply makes clear that federal judges retain their office for life unless they are removed via a proper constitutional mechanism.””

“For example, a 1973 discussion of impeachment grounds released by the House Judiciary Committee reviewed the history of the phrase and concluded that the ‘Constitutional Convention … quite clearly rejected’ a ‘dual standard’ for judges and civil officers. The ‘treason, bribery, and high Crimes and Misdemeanors’ clause thus serves as the sole standard for impeachable conduct for both executive branch officials and federal judges.”

“The next year, the House Judiciary Committee’s Impeachment Inquiry asked whether the ‘good behavior’ clause provides an additional ground for impeachment of judges and concluded that ‘[i]t does not.’  It emphasized that the House’s impeachment of judges was ‘consistent’ with impeachment of ‘non judicial officers.'”
“Finally, the House Report on the Impeachment of President Clinton affirmed this reading of the Constitution, stating that impeachable conduct for judges mirrored impeachable conduct for other civil officers in the government.”

Prof. Banzhaf notes that this authoritative and impartial summary of the grounds for impeachment does not answer the questions involved in the Senate’s trial of President Trump’s impeachment by the House.

For example, there are clearly factual issues related to the weight of the evidence that Trump did what he is alleged to have done to warrant removal from office.

Grounds for impeachment in this case

It also doesn’t answer whether, assuming that he did commit the acts and acted with the motivations with which he is charged, whether that meets what appear to be the generally accepted criteria: did he improperly exceed or abuse the powers of the office, engage in behavior incompatible with the function and purpose of the office, or misuse the office for an improper purpose or for personal gain.

Indeed, both sides in the debate before the Senate can probably make their arguments by making use of some of the words and phrases in this summary of grounds.

It does, however, strongly suggest that failure to state a specific crime is not a fatal defect in the articles of impeachment which would warrant dismissal at the beginning of the proceeding in the Senate, and that the appropriate standards should be those just set out, or something substantially similar, argues Banzhaf.

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About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu

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