Constitutional scholar Garrett Epps has called presidential impeachment “the atomic bomb of domestic politics.” It should not become a conventional weapon of political polarization.
We’re on the verge of that, however, if we as a nation don’t set a floor under the grounds for presidential impeachment.
Doing so requires public discussion of the impeachable offense of “high crimes and misdemeanors,” contained in the U.S. Constitution. What is it? What does it cover?
As a task force leader in the U.S. House Judiciary Committee’s inquiry into the impeachment of former President Nixon, I saw this question wrestled with first-hand. After detailed study, we concluded that “[b]ecause impeachment of a President is a grave step for the nation, it is to be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.” What does that then preclude?
First, it requires that a president be impeached only for offenses committed while serving as president. There can be no violation of the constitutional duties of the presidential office until one becomes president. Moreover, the weight of historical precedent is key in fixing the scope of impeachable offenses: The four presidential impeachments and 15 judicial impeachments have all been for conduct while in office.
Yet there is talk on Capitol Hill of impeaching President Biden for actions taken either while vice president or in the four years between his terms as vice president and then president. As shown, the Constitution does not envision a president being put out of office for something that took place before he was elected to the office. Similarly, American voters should not be disenfranchised based on actions taken by an individual before being elected president. There are other legal remedies for such actions.
Second, it requires that a “high” crime or misdemeanor was committed. Here again, talk on Capitol Hill includes impeaching President Biden for actions that do not rise to that level.
One claimed ground for impeaching Biden, for instance, is that as vice president he conditioned aid to Ukraine on the firing of a corrupt prosecutor to help a Ukrainian company on whose board his son served. Putting aside the problem of basing presidential impeachment on conduct as vice president and the factual implausibility and speculative nature of this claim, the alleged conduct is not a crime or the abusive solicitation of a personal benefit in return for official action.
Even making the improbable assumption that Biden’s judgment was influenced by his son’s interests, there would not even be an ethics violation. Government rules of ethics proscribe conflicts of interest based on the activities of spouses, domestic partners and dependent children, but not grown children.
Another claimed ground for impeaching Biden is that he has failed to secure America’s Southern border. This is simply a policy dispute — there is no crime involved. If all that is required for impeachment is a difference of opinion over policy, then any Congress controlled by one party could remove a president of another party just for differing on policy. Democracy would be gone.
What, then, are grounds for impeachment?
The historical record of presidential impeachments shows that heretofore the grounds for impeachment have been limited to serious crimes and grave abuses of power that arguably meet the standard set forth above.
Former President Andrew Johnson was impeached for abuse of power by illegally firing a Cabinet member without Senate approval and by contending he was not bound by acts of Congress because Congress did not yet include representatives and senators from all of the Confederate States. Former President Nixon resigned before he could be impeached, but the House Judiciary Committee had recommended articles of impeachment for obstruction of justice for the Watergate cover-up and abuse of power for such things as the so-called Enemies List of people to be targeted by the IRS and the secret investigative unit dubbed the Plumbers, which conducted illegal operations.
Former President Clinton was impeached for lying to a federal grand jury about the nature of his relationship with a White House intern and for tampering with witnesses and concealing evidence in a federal lawsuit brought by Paula Jones for sexual harassment. Former President Trump was impeached for abuse of power by soliciting Ukraine’s announcement of an investigation related to Hunter Biden and by linking military aid to such announcement. He was impeached a second time for criminal activity and abuse of power subversive of the Constitution by causing the use of force and fraud in an attempt to reverse the result of an election that had been won by his opponent.
The standard so far has, therefore, been quite clear. It’s important to keep that standard in mind and to discuss it widely. Democracy depends on allowing presidents to serve their full terms in office in the absence of constitutionally proscribed offenses during their service.
Evan Davis, a lawyer, was counsel and task force leader in the President Richard Nixon Impeachment Inquiry. He is co-editor of the American Bar Association book “Ethical Standards in the Public Sector: A Guide for Government Lawyers, Clients and Public Officials, 3rd Edition.”