The conventional wisdom, among academics and pundits, is that a president can be impeached for non-criminal behavior. This is at best a debatable proposition.
Any analysis of the criteria for presidential impeachment must begin, of course, with the text of the Constitution. There are at least three provisions that inform the discussion.
The first is the explicit criteria set out in detail in the words of the Constitution: “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.”
These words were carefully selected by the Framers as part of our system of separation of powers and checks and balances. They would seem to deny Congress the power to impeach a president without proof that he or she engaged in treason, bribery or other high crimes and misdemeanors. Perhaps they afford Congress the power to define these terms, but not to ignore them; they are, after all, the governing terms in the text of the Constitution itself.
Those who claim that Congress’s power to impeach applies to non-criminal conduct argue that there is no mechanism by which a congressional decision to impeach can be reviewed. An impeached and convicted president, they argue, cannot appeal to the Supreme Court, so Congress is the final arbiter.
Even if that is true — and there is nothing in the Constitution that specifically supports that view, though it may be implied from the separation of powers — that does not resolve the issue. Members of Congress take an oath to support the Constitution. In a trial for removal, the Constitution mandates that senators “shall be on oath or affirmation.” It would violate these oaths for senators to ignore the words of the Constitution, even if there is no appeal from their verdict.
Moreover, even if there is no appeal, there may be a judicial remedy. The Constitution explicitly introduces a judicial element into the trial of an impeached president: The trial must be presided over by the chief justice of the United States, the head of the judicial branch. This suggests that a president may not be impeached and removed solely by the legislative branch.
It would have been easy for the Framers to have made the president pro tempore of the Senate the presiding judge. If the trial is entirely political, as advocates of the broad view insist, then a political official would be the most appropriate presiding officer. The decision by the Framers to have the chief justice preside strongly suggests that the decision was not intended to be entirely political. Indeed, it would be wrong for the chief justice to participate, much less preside over, an entirely political process. Judges are required to stay out of politics.
Supporters of the broad view point to Hamilton’s statements in the Federalist Papers arguing that impeachment is proper for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
It is unclear whether this statement broadens or narrows the constitutional criteria for impeachment.
One interpretation is that the word “offenses” broadens impeachable acts beyond “high crimes and misdemeanors.” But another plausible interpretation is that “offenses” means “crimes,” and that the mere commission of ordinary offenses or crimes is not enough. To be impeachable, the offenses or crimes must also constitute “the abuse or violation of some public trust” — for example, paying a bribe to cover up personal embarrassment (as Hamilton himself did) may not cause “injuries” to the “Society itself.” In other words, the crime or offense must have a “political,” not just a legal, component. Under that standard, the impeachment of president Bill ClintonWilliam (Bill) Jefferson ClintonBill Clinton shares video update after release from hospital Biden, Democrats risk everything unless they follow the Clinton pivot (they won't) Giuliani picks Abe Lincoln filter for attack against McAuliffe MORE was improper, as I argued back then.
Hamilton’s somewhat confusing essay does not purport to answer the question, but rather to persuade the readers that they should not reject the Constitution based on its imperfections. He argued that it would have been wrong for the Framers to have left the trial of an impeached president to the Supreme Court because it would be unfair to have a president tried by judges for impeachment and then tried again by judges in a criminal proceeding. This presupposes that the impeachment will be based on criminal conduct, because if it were not, there would be no concern about the double jeopardy implications of a subsequent criminal trial.
Hamilton characterizes the decision to have the chief justice preside as a compromise between a trial in front of the Supreme Court and a trial in front of the Senate. But the very concept of a compromise entails the conclusion that the inclusion of the chief justice was supposed to introduce a judicial element in to the Senate trial. If that is the case, it is not a stretch to conclude that this judicial element requires the chief justice to decide whether the constitutional criteria for impeachment are met.
The constitutional requirement that the chief justice preside suggests that the following scenario may be possible. If the House of Representatives were to impeach a president on grounds that are not included in the constitutional criteria, the president’s lawyers would be able to file a motion in front of the chief justice to dismiss the “indictment” (impeachment is widely seen as analogous to indictment), on the ground that the Bill of Impeachment is insufficient as a matter of constitutional law. If such a motion were to be made, the chief justice would have to decide it, and under principles of law that hark back to Marbury v. Madison, the chief justice is bound to apply the Constitution to any legislative act. If the chief justice were to conclude that the bill of impeachment does not state a constitutional claim, he would be required to dismiss it.
This may sound far-fetched, but if so, the question then arises: What role is the chief justice supposed to play, if not the traditional role of a judge in a criminal, or even civil, trial? That role includes not only ruling on the admissibility of evidence and other procedural issues but also making a legal determination as to whether the constitutional criteria have been met.
We will probably never know the answer, because it is unlikely that the House of Representatives will impeach our president without charging him with criminal conduct. But if that were to occur, and if the president were to challenge that decision by way of a motion to the chief justice, there is no way of knowing how the chief justice would decide the matter — or whether Congress would abide by the ruling of the chief justice.
The bottom line is that the issue may be more complex and more nuanced than those who argue that a president can be impeached for non-criminal conduct would have us believe.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus, at Harvard Law School and author of “Trumped Up: How Criminalizing Politics is Dangerous to Democracy.” Follow him on Twitter @AlanDersh and on Facebook @AlanMDershowitz.