What if a president just decided to move to another country and telecommute? What if the United States was invaded by Canada and the president refused to defend us? The president would have broken no laws.
But shouldn’t he be impeached?
Lawyers for President Trump, who is about to be tried by the Senate on impeachment charges, say Trump can’t be convicted because he wasn’t accused of committing an ordinary crime. It’s an argument you’re likely to hear a lot in the coming days.
But that claim is widely disputed. Constitutional scholars say there’s an overwhelming consensus that no crime is necessary for a president to be impeached. Hundreds of law professors signed on to a public letter in early December, saying they had concluded that Trump had committed impeachable conduct and noting that “conduct need not be criminal to be impeachable. The standard here is constitutional; it does not depend on what Congress has chosen to criminalize. Impeachment is a remedy for grave abuses of the public trust."
Legal scholars support their argument by pointing to the history of impeachment after its invention by the British Parliament in 1376, its use during colonial times, discussions at the time of the Founding, and its use against federal judges and presidents since then. They also note that when the Constitution was drafted, hardly any federal criminal laws had been written for a president to violate.
The idea that a crime is necessary for impeachment is a “hardy perennial trotted out in nearly every major impeachment battle of the last two centuries. But that is not what ‘high crimes and misdemeanors’ meant to the framers,” Frank Bowman, a professor at the University of Missouri School of Law, wrote in his 2019 book, “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.”
The scholars, in addition to their historical and textual analysis, argue that it only makes sense to have a broader safeguard than just the random list of crimes described in the law books.
And that’s when they begin offering up colorful examples that will make you stop and think. Here is a sample:
-- Bowman wrote in his book, “Pretty much everyone assumes that a president who, for example, simply stopped coming to work, or refused to sign any bill passed by Congress regardless of content, or refused to organize the defense of the country against invasion, or fired all cabinet officers and refused to name replacements must be impeachble.”
-- Cass Sunstein, a professor at Harvard Law School, wrote in his 2017 book, “Impeachment: A Citizen’s Guide," “Would it really make sense to say that the president could not be impeached if he announced that he would not defend the country against attack or enforce the civil rights laws — or that he is going to spend a year on vacation in Rome?”
-- The late professor Charles Black, a respected authority on impeachment who wrote "Impeachment: A Handbook,” in the Watergate era, wondered what would happen if “a president were to move to Saudi Arabia, so he could have four wives, and were to propose to conduct the office of the presidency by mail and wireless from there. This would not be a crime, provided his passport were in order. Is it possible that such gross and wanton neglect of duty could not be grounds for impeachment and removal?”
He also conjured up the prospect of a president who announces “that he would under no circumstances appoint any Roman Catholic to office.”
In another example, he said, “Suppose a president were to announce and follow a policy of granting full pardons, in advance of indictment or trial, to all federal agents or police who killed anybody in line of duty, in the District of Columbia, whatever the circumstances and however unnecessary the killing. This would not be a crime, and probably could not be made a crime under the Constitution. But could anybody doubt that such conduct would be impeachable?
He said that his “extreme examples” tested the validity of the proposition that impeachment offenses must be crimes. And that proposition failed, he said.
-- Philip Bobbitt, a professor at Columbia Law School, who updated Black’s book in 2018, offered his own examples.
"What if the president required that all cabinet members affirm their belief in the divinity of Christ?” he asked.
What if, he said, a president “devolved to his personal financial adviser classified intelligence about upcoming decisions of the Federal Reserve? Because the president can declassify any material he wishes, there is nothing per se illegal about this.”
“What if the president announced that under no circumstances would he respond to the invocation of NATO’s Article 5, which calls upon the signatories to the North Atlantic Treaty to aid each other when they are attacked? Or suspended habeas corpus after Congress had refused to do so and while Congress was in session?" Bobbitt asked.
“Suppose a candidate for the presidency conspired with foreign intelligence agencies to provide him with sophisticated data analytics in order that they could more effectively assist his campaign. This may or may not be a crime, depending on whether information from a foreign government amounts to the ‘contribution or donation of money or other thing of value’ to the campaign, but it can scarcely be doubted that it is a high crime in the circumstances of a presidential election," he said.
“One need only consider a few hypothetical cases to realize how inadequate such a requirement [that an impeachable offense be a crime] would be for impeachment," Black wrote.
-- “Imagine a president ... who promises to pardon any person who violates the legal rights of undocumented migrants; or one who promises to endorse any company that fires employees who voted against him; or one who announces that no woman or person of color is welcome in the White House as long as he occupies the presidency. Hypotheticals like these illustrate the point that some noncriminal acts must be impeachable,” Harvard Law Professor Laurence Tribe, a fierce Trump critic, and Joshua Matz, a lawyer for the House Judiciary Committee and an adjunct law professor at Georgetown, wrote in their 2018 book, “To End a Presidency: The Power of Impeachment.”
“The Constitution doesn’t compel us to let a corrupt or tyrannical leader off the hook just because his offenses are not directly addressed by the US Code. Impeachment is mightier and savvier than that,” the authors wrote.
Material from Globe wire services was used in this report.
Martin finucane can be reached at email@example.com.