Trump Could Cite Precedent That He Can’t Be Impeached for Earlier Offenses
In the wake of raids which seized many records – apparently including taped telephone conversations – from President Donald Trump’s personal attorney, and disclosures regarding many possibly wrongful activities, some experts are suggesting that Trump is a greater risk from actions he took before taking office – now subject to a new probe in New York – than from those after becoming president.
Indeed, Harvard law professor Alan Dershowitz has concluded: “he has much more jeopardy concerning his pre-presidential business and personal activities.”
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Since Justice Department policy – which apparently is binding on Special Counsel Robert Mueller – as well as the consensus of legal opinion, is that a sitting president cannot be criminally indicted, those who oppose Trump are increasingly looking towards his impeachment rather than his indictment.
But it appears that Trump may not be able to be impeached for alleged crimes and/or other wrongdoings he may have committed before taking office, and any attempt to include such instances in an impeachment resolution could trigger a constitutional crisis if he challenges its legitimacy.
Although the issue is far from clear, there is precedent that a sitting president can be impeached – and removed from office by impeachment – only for wrongdoing committed while in office.
While considering the impeachment of Vice President Schuyler Colfax, the House Judiciary Committee concluded that impeachment “should only be applied to high crimes and misdemeanors committed while in office and which alone affect the officer in discharge of his duties as such, whatever may have been their effect upon him as a man, for impeachment touches the office only and qualifications for the office, and not the man himself.”
Indeed, according to a study by the Congressional Research Service, Congress has identified three general types of conduct that constitute grounds for impeachment, and all require that he already be in office.
These categories, which should not be understood to be exhaustive, include: (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.
If this precedent still controls and is followed, Trump could not be impeached, and possibly removed from office following an impeachment trial, for anything he may have done before assuming the presidency.
On the other hand, and much more recently, federal Judge Thomas Porteous was removed from the bench by Congress for attempting to conceal, during his confirmation process, various prior wrongful acts.
So it could be argued that this more modern precedent would permit President Trump to be impeached, and ultimately removed from office, for pre-inauguration wrongdoings.
This just might create a constitutional crisis. If the House votes to impeach Trump for his alleged wrongdoings before taking office, and the Senate upholds the impeachment and demands that he step down, Trump can argue that the process is invalid under the Colfax precedent, and for other constitutional reasons.
In such a situation, it is not at all clear that, because of concerns about legal standing and other legalistic problems, federal courts, including even the Supreme Court, could consider – much less rule – on the situation, nor that a combative President Trump would yield office even in the face of any such ruling.