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Suppose the president of the US demands foreign leader X have X's state conduct an investigation into corrupt dealings of a family member of a former member of the previous US administration (and a potential rival presidential candidate) - and conditions the transfer of military aid on the carrying out of this investigation.

Ignore for a moment the specific details of the current impeachment process and the current composition of the House and the Senate.

Can this be considered a "high crime" or "high misdemeanor" according to prevailing legal scholarship?

I am obviously no US constitutional lawyer, but in many respects this seems to me like a borderline/gray-area request even in terms of legitimacy (seeing how it is not unreasonable to strive for corruption investigations, albeit not by foreign states) - and thus, as a crime, it doesn't seem to rise to being "high".

Note:

  • I described acts, not intent. Perhaps the president did this simply because s/he wanted dirt on a potential political opponent. Perhaps he was personally curious. Perhaps he actually cared about corruption. Perhaps he cares about corruption, but only in order to present the previous administration in a negative light and not in his own administration. etc.

  • The answer may include some relevant details from the current impeachment process, but please don't write an answer focusing on President Trump or his impeachment process.

  • (this comes up repeatedly) No, the Nixon v. US decision (506 U.S. 224 (1993)) does not recognize a power of Congress to impeach arbitrarily or for flimsy causes.

  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Nov 26 '19 at 1:32
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    Re: "I described acts, not intent": I don't understand why you impose that restriction. Intent is very frequently relevant in legal cases; hence, for example, the legal term of art "corrupt purpose". – ruakh Nov 28 '19 at 1:55
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    @ruakh: 1. Because intent is inferred, so it is meaningless to say "and the objective intent was XYZ". 2. To make it easier to answer the question - you can fill in whatever intent you like. – einpoklum Nov 28 '19 at 10:13
  • @einpoklum-reinstateMonica: Oh, I see; I misunderstood the intent of that paragraph. I thought you were trying to say "Don't consider intent in your answers, it's not what I'm asking about." Thanks for clarifying. – ruakh Nov 28 '19 at 17:47
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In the cases where a federal official has been impeached in the US, the reasons have been:

  • Drunkenness and unlawful rulings
  • Political bias and arbitrary rulings, promoting a partisan political agenda on the bench
  • Abuse of power
  • Supporting the Confederacy
  • Violating the Tenure of Office Act
  • Graft, corruption
  • Failure to live in his district, abuse of power
  • Improper acceptance of gifts from litigants and attorneys
  • Champerty, corruption, tax evasion, practicing law while a judge
  • Tax evasion
  • Accepting a bribe, and committing perjury during the resulting investigation
  • Perjury and obstruction of justice
  • Sexual assault
  • Making false financial disclosures, corruption.

This tells us how Congress has in the past construed the term. So yes, the current accusations are consistent with previous interpretations of the terms used in the Constitution.

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    @einpoklum-reinstateMonica Almost all impeachments in the US have been of federal judges. This answer might be a little clearer with some formatting (this appears to be a semicolon separated list of what each impeached individual was charged with) and a citation/link for said list (I'm pretty sure it's on Wikipedia). – zibadawa timmy Nov 25 '19 at 8:11
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    Accepted, because "abuse of power" is a wide net, and the phrase is also vague. It could probably be applied - more or less justly - to the scenario I described. – einpoklum Nov 27 '19 at 0:27
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    "making false financial disclosures" - would those include ones that get your charity shut down and fined bigly; or paying off porn starts to help your election campaign? Sounds like someone is impeaching up the wrong tree :-) – Mawg says reinstate Monica Nov 27 '19 at 8:08
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    @Mawg: Again, that's relevant to Trump, but not to the scenario I described above. Indeed, there are multiple causes for potential impeachment for Trump (some even stronger than the ones you suggested), but this is what the Democratic party leadership is focusing on. – einpoklum Nov 27 '19 at 13:42
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    It does if you are paying for their silence during a campaign, to avoid yet more bad publicity after recordings of you saying that you grab women by the pussy have just aired. – Mawg says reinstate Monica Nov 30 '19 at 8:30
60

High crimes and misdemeanors is interpreted by Congress

While the concept is an import from English law as grounds for removing an officeholder from office, the conduct referred to is better thought of as a breach of trust rather than a specific (criminal) offense. One may commit a 'high crime or misdemeanor' without actually breaking the law.

Because impeachment proceedings are political, they are not justicable under US law. As such, what meets the threshold of “high crimes and misdemeanors” is a matter for the individual members of Congress to decide just like what meets the threshold of "beyond reasonable doubt" is a matter for individual jurors to decide.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Nov 26 '19 at 1:32
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Reading the wikipedia entry on High Crimes and Misdemeanors probably suffices to answer the question. Ultimately this phrase doesn't mean what you think it means. Your modern notion of "crimes" and "misdemeanors" is not what is meant. It comes from England, with hundreds of years of history behind it. In short it (probably) means "anything outside of or contrary to the usual norms of governance", which effectively means "anything you can get enough votes for". It is the political practicalities which end up making it a seemingly very difficult thing for a President to get convicted of, rather than its actual scope and meaning.

Some choice quotes from the article:

Since 1386, the English parliament had used the term “high crimes and misdemeanors” to describe one of the grounds to impeach officials of the crown. Officials accused of “high crimes and misdemeanors” were accused of offenses as varied as misappropriating government funds, appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, threatening a grand jury, disobeying an order from Parliament, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, helping “suppress petitions to the King to call a Parliament,” granting warrants without cause, and bribery. Some of these charges were crimes. Others were not. They can be thought of as serious cases of power abuse or dereliction of duty, without a requirement for these cases to be explicitly against the law.

 

Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive "rendered himself obnoxious," and the Constitution should provide for the "regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused." James Madison said that "impeachment... was indispensable" to defend the community against "the incapacity, negligence or perfidy of the chief Magistrate." With a single executive, Madison argued, unlike a legislature whose collective nature provided security, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."

The available records we have from the era of the writers of the constitution gives the clear impression that none of the things that qualified as "high crimes and misdemeanors" actually had to be a crime. Frequently they weren't. They were instead concerned more with things like abuse of power, betrayal of the public trust, ineptness, etc.

But some legal scholars do adopt a more stringent interpretation, saying it is only meant to cover the most severe of possible actions, including Bill Clinton's lawyers during his impeachment. In 1999, following Clinton's impeachment saga, Mark Slusar argued this more stringent/narrow interpretation was the prevailing opinion among scholars and Senators.

In practice to date that's at least been how things have panned out, as no President has ever been convicted in the Senate and only two have ever been impeached by the House (Nixon resigned before that happened, and it hasn't yet happened to Trump, though most expect it will, and soon). But no court has issued a binding opinion on what the term means for a Presidential impeachment.

Finally, note that many Democratic talking points are now emphasizing the "bribery" angle, which is specifically noted as cause for impeachment, in addition to high crimes and misdemeanors, in the Constitution. This has the benefit of not suffering nearly as much from the ambiguities of old English common law terminologies having diverged from modern terms, or the corresponding disagreement on what the correct constitutional interpretation and application of them is. It may be easier to think of your not-so-hypothetical as an instance of bribery, rather than of "high crimes and misdemeanors".

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Nov 26 '19 at 1:32
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    "But no court has issued a binding opinion on what the term means for a Presidential impeachment." It is extremely unlikely that any court will ever do so. Impeachment and trial are proceedings in Congress (HoR and Senate respectively), and hence are not justicable. Any court asked to rule would instantly dismiss with "we have no jurisdiction in this case". – Martin Bonner supports Monica Nov 27 '19 at 11:09
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    @MartinBonnersupportsMonica Which would be a binding opinion that we don't currently have. And it's hardly unheard of for a case to be heard through several steps of appeal before some court concludes the original court lacked jurisdiction, or something similar to that. Further, there are now-vacated opinions that would have forced some common law restrictions the Judiciary adheres to upon Congress, namely those concerning attorney/client privilege (Congress asserts it doesn't apply to them). So it's not wholly improbable they'd try to apply them to (Presidential) impeachments. – zibadawa timmy Nov 27 '19 at 21:32
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At its core, the Presidential impeachment process is not about justice, fair trial, fact finding, etc. It's strictly about convincing an overwhelming majority of voters that the President should be impeached, so that 2/3 of Senators would be inclined to vote for impeachment. Back in 1974, Nixon's support levels dropped to 24% and the majority of the country was in favour of removing him from office, so he resigned as a last ditch attempt to save face. On the other hand Clinton had a 73% rating at the height of the impeachment and the vote in Senate predictably failed.

If enough voters want Trump out, he'll be out, no matter the charges against him. If enough want him to stay, he'll keep the White House at least until January 2021. Everything else is superficial. Of course, impeachments do work differently for other positions such as judges, Congressmen and Senators, but the President is unique for being the most high-profile person in the country, so Congress won't remove them without considering approval ratings first. Otherwise the party voting for impeachment risks sinking the electoral prospects for the next decade, as their core voters become disillusioned.

For reference, see the Supreme court's decision in Nixon v. United States.

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  • Comments are not for extended discussion; this conversation has been moved to chat. – Dale M Nov 28 '19 at 10:40
1

Ignore high crimes and misdemeanors. Bribery is listed as an impeachable offense in 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.

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  • Who in my scenario do you believe bribed whom? (I'm not being facetious, I'm asking seriously). – einpoklum Nov 27 '19 at 13:39
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    The charge discussed in the house is bribery. In that instance they appear to be accusing POTUS of soliciting a bribe from Ukrane in the form of a simple Quid Pro Quo (do xxx and I'll give you yyy). – DwB Nov 27 '19 at 13:41
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    While I think bribery is a mis-characterization of the situation (that I described, and the actual Trump situation), it is certainly a reasonable cause of impeachment in principle. So yes, slapping the "bribery" title on the affair will work given the Nixon v US ruling. +1. – einpoklum Nov 27 '19 at 13:47
  • What is the "bribe" and who (would have) received it? – curiousguy Dec 22 '19 at 5:18
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    @curiousguy: Well, impeachment is only for "high crimes and misdemeanors", not "any crime and misdemeanor", right? That means the President can't be impeached or removed due to whatever falls below some level of severity. – einpoklum Dec 22 '19 at 16:15
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Technically, Trump has been impeachable due to violation of US laws since the moment he swore the oath of office. US government officials are legally prohibited from holding the lease on the Old Post Office building in Washington DC, also known as Trump International Hotel.

Congress has a broad mandate under Article II, and could remove Trump from office for a variety of reasons if they chose to do so.

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    The first link in your answer argues there have been impeachable offenses but they relate to his hotels' interactions with foreign diplomats, not the breach of his lease on the Old Post Office building. Breaching a lease may be unlawful but it would be a strange choice of offense to argue amounts to high crimes and misdemeanors. – Will Nov 25 '19 at 16:35
  • About your first paragraph: While that is true IMHO, it's not an answer to my question and I specifically asked not to talk about Trump... please remove it. As for the second part, it's customary on SE to answer with text rather than links; you should summarize the content you linked to, at the very least. – einpoklum Nov 26 '19 at 8:13

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