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Trying to make sense of the conflicting opinions regarding the 2020 impeachment proceedings in the USA. In particular, is the claim that an abuse of power does not necessarily has to be a criminal offense valid? That is, can a government official abuse power in a manner that is not a crime or a misdemeanor? I am intentionally asking the question more generally than the specific alleged actions by Trump, for I'd like to know whether such thing as a non-criminal abuse of power exists.

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    You're talking about the impeachment. Should be noted that the conviction vote isn't based on regular laws, but a senate vote. – bobsburner Jan 23 at 11:41
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    This is the wrong place to ask such a question. The definition of "high crimes and misdemeanors" is "whatever half of the House and two thirds of the Senate say it is". – Monty Harder Jan 23 at 20:08
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    "Impeachment" and "criminal law" aren't particularly compatible tags; one has nothing to do with the other. – Michael W. Jan 24 at 0:16
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    If you just want to ask in a vaccum, that phrase has no precise meaning so the answer is trivially no. However, we aren't operating in a vaccum, and a government official requesting something of personal value in exchange for smooth performance of their duties is indeed a criminal offense. Even if its done through third parties, and even if the requested transaction never ended up taking place. – T.E.D. Jan 24 at 16:12
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No, abuse of power is not necessarily criminal

Imagine a judge that is “heightist” - they always rule in favor of defendants who are taller than 175cm and always rule against those who are shorter irrespective of the merits of the case.

This is clearly an abuse of power. It’s not illegal because “height” is not a category protected from discrimination (AFAIK). However, it is a failure to correctly discharge their legal obligations.

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    While an interesting example, I would argue that the judge could be charged with corruption: "An act done with an intent to give some advantage inconsistent with official duty and the rights of others." The judge has official duty to make rulings on the merits of the case, and the right to a fair trial is Article 10 of the Universal Declaration of Human Rights Article 6 of the European Convention of Human Rights, and the Sixth Amendment to the United States Constitution (among others) – Chronocidal Jan 23 at 9:26
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    Imagine instead a Judge who orders their receptionist or a junior clerk to collect their dry-cleaning: Certainly not illegal, but they are taking advantage of their position of power to persuade someone to do something outside the scope of their job. (Assuming that the subordinate's job doesn't include an overly generic "plus other tasks the judges may ask of you" clause) – Chronocidal Jan 23 at 9:34
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    This particular abuse of power is best addressed by law and there is a legal remedy, namely the appellant courts. Certainly there are some short judges in the appellant court system (at the very least, I'm pretty sure Justice Kagan is not going to be playing Center on the SCOTUS basketball team) who would overturn rulings and assign a new judge to the case. – hszmv Jan 23 at 14:02
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    At least in the UK, heightism is a fairly standard example of indirect sexual discrimination. Police no longer have height requirements for this reason. – richardb Jan 24 at 0:22
  • This establishes that the heightist judge isn't liable under anti-discrimination law, I don't see how you jump from that that the judge isn't liable under any law. And of course there are other abuses of power than this type. – Hasse1987 Jan 25 at 5:14
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The point is that an act need not be a crime for which the actor could be convicted in criminal court for it to qualify as an impeachable "high crime or misdemeanor."

So, abuse of power isn't necessarily criminal of itself, but even a specific abuse of power that is not criminal may be impeachable, Alan Dershowitz's arguments to the contrary notwithstanding.

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    Which of Dershowitz' arguments do you mean? Those from 1998 or those from 2020? (See youtube.com/watch?v=8llxefPibig 6:10 - 6:25) </sarcasm> – orithena Jan 23 at 9:37
  • How does this answer the question? OP specifically doesn't want to limit the scope to impeachable actions, but rather wants an explanation as to whether an abuse of power is necessarily criminal. – JBentley Jan 24 at 13:50
  • @JBentley the scope is explicitly not limited to "specific alleged actions by Trump," but that doesn't mean that the question isn't about impeachable acts generally. The answer is general (the first clause of the second paragraph), but focuses on the implied context of impeachment (not Trump's impeachment, but any impeachment) because one might falsely assume in that context that an impeachable act is necessarily criminal (because some have asserted that an act must be criminal to be impeachable). – phoog Jan 24 at 19:56
  • @phoog Either way, writing "abuse of power isn't necessarily criminal of itself" seems to boil down to simply "no" in relation to the core part of the question (is an abuse of power necessarily criminal) by just restating the question as a statement. Presumably OP wants some elaboration (as the other answers have given) rather than just "no". I think the OP was quite clear by writing "I am intentionally asking the question more generally than the specific alleged actions by Trump, for I'd like to know whether such thing as a non-criminal abuse of power exists." – JBentley Jan 24 at 21:34
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No, abuse of power is not necessarily criminal

because abuse of power is a moral construct and something being criminal is a legalistic one.

And that the law and morals are only loosely related to each other has been shown time and time again.

However, a lot of specific types of "abuse of power" have been made illegal due to the fact that ideally law is modeled to conform to morality. But since "abuse of power" is very vaguely defined you cannot just flat out "make it illegal" in any way that a western judicial system could work with (it would however make a good law to allow judges to screw over any politician they want due to the interpretational range)

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  • exactly, so for example in some moral systems you could say most abuse of power is directly mandated by the law – Charon ME Jan 24 at 10:48
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    Could it be that abuse of power not being a criminal offence be related to the fact that it is the people who are in power that decide what is a criminal offence? – Andrew Morton Jan 24 at 19:45
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High Crimes and Misdemeanors (the bigger category from which Abuse of Power was derived) was historically meant as a catch-all for any actions that could cause a peasant to believe that the monarchy was not morally/intellectually superior to the peasantry, and thus question the concept of Divine Right in early times, and the justification of the State and political system in more recent times. We give politicians leeway in their decision-making and expect them to make decisions that benefit the country.

Sir Henry Yelverton is a solid example of someone impeached for High Crimes and Misdemeanors: Yelverton was the English attorney-general in the early 1600s, and was tasked with defending the Crown's monopoly on gold and silver thread via going after the people complaining about it. This was a politically sticky situation, where if the people complaining about the monopoly got someone high-up in government to support their case, Yelverton would suddenly be in hot water and be fired. Thus, Yelverton wanted King James I's tacit approval of what he was doing. Unfortunately, the king was ailing around this time and wasn't around to give approval. So Yelverton hemmed and hawed in public, eventually imprisoning some of the petitioners but not others, and threatened to release those petitioners if the previous attorney-general (Sir Francis Bacon) didn't give his approval of what Yelverton was doing. Soon after, he was impeached for High Crimes and Misdemeanors and imprisoned in the Tower of London.

Why? He hadn't committed a criminal act; he was just trying to play politics so he could stay in power. However, he showed indecisiveness and cowardice in his public dealings, which very likely made people trust the post of attorney-general a little less, and by proxy, trust the Crown a little less.

Likewise, Trump using his office for personal gain cheapens the office of President. It means the next President will have a harder time convincing people that s/he's working for the American people and not him/herself. Likewise, foreign governments will have a little less trust that the President is truly speaking for the will of America and not just using the position to earn a buck.

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    On the other hand, people thinking the President is working for him/herself could be seen as an improvement over what people normally perceive the President to be working for (big corporations and the military-industrial complex.) – StackOverthrow Jan 23 at 23:13
  • @user560822 Those are hardly distinguishable when the President is a billionaire businessman. – zibadawa timmy Jan 26 at 19:17
  • What do you mean by "personal gain"? – curiousguy Feb 1 at 19:19
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    @curiousguy Making presidential choices based mostly on what choice will benefit his own wealth and power, not what he believes will be best for America as a whole. By hesitating in the administration of justice and refusing to go forward without major backers, Yelverton was protecting his job at the detriment of the monarchy. – Carduus Feb 3 at 13:43
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It depends. What is meant by "abuse of power"?

Based on Wikipedia's definition, abuse of power is necessarily criminal as it is "the commission of an unlawful act, done in an official capacity, which affects the performance of official duties." [emphasis added]

But there are other definitions as well. BusinessDictionary defines abuse of power as: "the act of using one's position of power in an abusive way" which might or might not be criminal. For example, a business owner might demand employees double-charge customers' credit cards and also demand that while at work they can only listen to Nickelback.

Both are acts that the owner, through their position of power, are imposing on their employees. Both acts are also arguably abusive. However, only the first act would likely be illegal.

As with so many things it comes down to how we define the words and phrases we use. Given the absence of a commonly accepted meaning, "Abuse of power" is an example of a phrase that is likely to be perceived differently from one person to the next and absent clarification, can lead to misunderstandings.

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