without favor or prejudice, is "seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office."[1] When that standard is met, however, the Constitution calls the House to action. In such cases, a decision not to impeach has grave consequences and sets an ominous precedent. As Representative William Cohen remarked in President Nixon's case, "It also has been said to me that even if Mr. Nixon did commit these offenses, every other President … has engaged in some of the same conduct, at least to some degree, but the answer I think is that democracy, that solid rock of our system, may be eroded away by degree and its survival will be determined by the degree to which we will tolerate those silent and subtle subversions that absorb it slowly into the rule of a few."[2]
V.The Criminality Issue
It is occasionally suggested that Presidents can be impeached only if they have committed crimes. That position was rejected in President Nixon's case, and then rejected again in President Clinton's, and should be rejected once more.[3]
Offenses against the Constitution are different in kind than offenses against the criminal code. Some crimes, like jaywalking, are not impeachable. Some impeachable offenses, like abuse of power, are not crimes. Some misconduct may offend both the Constitution and the criminal law. Impeachment and criminality must therefore be assessed separately—even though the commission of crimes may strengthen a case for removal.
A "great preponderance of authority" confirms that impeachable offenses are "not confined to criminal conduct."[4] This authority includes nearly every legal scholar to have studied the issue, as well as multiple Supreme Court justices who addressed it in public remarks. [5] More important, the House itself has long treated "high Crimes and Misdemeanors" as distinct from crimes subject to indictment. That understanding follows from the Constitution's history, text, and structure, and reflects the absurdities and practical difficulties that would result were the impeachment power confined to
- ↑ Staff Report on Constitutional Grounds for Presidential Impeachment (1974) at 27.
- ↑ Debate on Nixon Articles of Impeachment (1974) at 79.
- ↑ Impeachment of William J. Clinton, President of the United States: Report of the H. Comm. on the Judiciary, H. Rep. No. 105-830 at 64 (1998) (hereinafter "Committee Report on Clinton Articles of Impeachment (1998)") Committee Report on Clinton Articles of Impeachment (1998) at 64 ("Although, the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment."); Staff Report on Constitutional Grounds for Presidential Impeachment (1974) at 22-26.
- ↑ Berger, Impeachment at 58.
- ↑ See, e.g., Black & Bobbitt, Impeachment at 33-37, 559-565; Bowman, High Crimes and Misdemeanors at 244-252; Tribe & Matz, To End A Presidency at 43-53; Sunstein, Impeachment at 117-134; Amar, America's Constitution at 200-20; Charles J. Cooper, A Perjurer in the White House?: The Constitutional Case for Perjury and Obstruction of Justice as High Crimes and Misdemeanors, 22 Harv. J. L. & Pub. Pol'y 619, 620 (1998-1999); Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis 105-113 (2019); Berger, Impeachment at 58 (collecting sources); Merrill Otis, A Proposed Tribunal: Is It Constitutional?, 7Kan. City. L. Rev. 3, 22 (1938) (quoting Chief Justice Taft); Charles E. Hughes, The Supreme Court of the United States 19 (1928); 2 Henry Adams, History of the United States of America 223 (1962).
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