Schiff: There is legal precedent for impeaching sitting officials over prior criminal conduct

Schiff: There is legal precedent for impeaching sitting officials over prior criminal conduct
© Greg Nash

The top Democrat on the House Intelligence Committee on Wednesday said sitting officials can be impeached for prior criminal conduct, citing a recent legal precedent.

Rep. Adam SchiffAdam Bennett SchiffHillicon Valley: Schiff presses intel chief on staff changes | Warren offers plan to secure elections | Twitter's Jack Dorsey to donate B to coronavirus fight | WhatsApp takes steps to counter virus misinformation Schiff calls on DNI Grenell to explain intelligence community changes READ: Schiff plans to investigate Trump firing intel watchdog MORE (D-Calif.) made the remarks after he was asked at a Washington event at the Brookings Institution about whether a sitting president can be prosecuted for federal crimes that he or she committed before taking office.

Schiff pointed to a 2010 case in which the Senate voted to impeach Thomas Porteous Jr., who was a Louisiana federal district court judge at the time.

Schiff said the Senate convicted him on four articles of impeachment — articles he noted would be "relevant to modern times." The counts included one based purely on prior conduct and another for lying under oath during a Senate confirmation. 

"On an overwhelming basis, the Senate convicted [him] on all those articles including those two," Schiff said.

"We now, by constitutional terms — in a country that rarely has impeachment trials — have a precedent that you can be impeached and removed from office both for prior crimes and for lying under oath," the California lawmaker added.

Schiff, who tried the Porteous impeachment case, emphasized that this particular notion of trying a sitting official for past criminal conduct is "not an open question," despite people claiming it is on television talk shows.

"This had me yelling me at the TV set, which I rarely do," he joked.

Porteous became the eighth federal judge to be impeached and removed from office, and the first in more than two decades. 

The audience member who raised the question pointed to tax crimes as an example of prior conduct, a reference that comes one day after the The New York Times reported that President TrumpDonald John TrumpCDC updates website to remove dosage guidance on drug touted by Trump Trump says he'd like economy to reopen 'with a big bang' but acknowledges it may be limited Graham backs Trump, vows no money for WHO in next funding bill MORE had participated in "dubious" tax strategies in the 1990s.

The audience member also asked whether it would be possible to prosecute a sitting president for crimes that occurred after he is out of office in the event "he may pardon himself for those crimes."

Benjamin Wittes, co-founder of Brookings's Lawfare Blog, pointed out that many of these questions are contested.

"Whether the president can be indicted at all is a contested question. The application of a self-pardon is a contested question. And whether a president can be made answerable for pre-presidential conduct is itself a contested question," said Wittes, who was moderating the panel.

Despite Schiff's recent comments, Democrats have stayed away from talks of trying to impeach Trump.

“I don’t think we should be talking about impeachment. I’ve been very clear right from the start,” Pelosi said in April during a press briefing in the Capitol.