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 SchiffSchiff rips Conway's 'display of alternative facts' on Russian election interference Schiff: Mueller report 'far worse' than Watergate Schiff: Democrats 'may' take up impeachment proceedings 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. 

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"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 TrumpThorny part of obstruction of justice is proving intent, that's a job for Congress Obama condemns attacks in Sri Lanka as 'an attack on humanity' Schiff rips Conway's 'display of alternative facts' on Russian election interference 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.

House Minority Leader Nancy PelosiNancy Patricia D'Alesandro PelosiSenate Republicans tested on Trump support after Mueller End of Mueller shifts focus to existing probes Democrats renew attacks on Trump attorney general MORE (D-Calif.) has previously warned that Democrats could hurt their party's efforts to win seats during the November midterm elections if they pursue impeachment efforts against 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.