Neil Buchanan: Do You Have to Commit A Crime To Be Impeached?

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Donald Trump walks along the West Wing colonnade with his daughter Ivanka Trump and his son-in-law and Senior Advisor to the President for Strategic Planning Jared Kushner before he departs the White House March 17, 2017 in Washington, DC. Chip Somodevilla/Getty

This article first appeared on the Dorf on Law site.

Will Donald Trump be impeached? It is still too early to tell, of course, but given the pace at which damaging disclosures are coming forth, no one should assume that it will not happen.

What we do know without question is that the Republicans in Congress would have impeached and voted to convict Barack Obama, Hillary Clinton, or any other Democrat for doing anything even close to what we now know —from his own tweets and other statements —that Donald Trump has done.

But that merely tells us that Republicans are in a bind. Only a bit of one, however, because such shameless inconsistency only matters to people who have shame, which almost all of these Republicans have repeatedly shown that they lack. Even those who are perfectly willing to apply different standards to presidents on the basis of partisanship, however, might have their limits.

So the question is: What might be enough to convince a House Republican to impeach, or a Republican senator to convict, Donald Trump? One way to approach that question is to ask what should be enough to cause Republicans to abandon their current "nothing to see here, Democrats are sore losers" mantra.

But first, an aside.

One of the dubious pleasures of writing for a non-academic readership is that an author receives angry missives from some highly motivated readers. I described this in some bemused detail last summer in a column that Newsweek accurately titled: "My Inbox is Full of Festering, Delusional, Paranoid Hate." The intensity of that nastiness turns up to 11 whenever I write anything positive about Hillary Clinton, but criticizing Trump certainly evokes some passionate responses, too.

There are, I am happy to report, also plenty of people who take the time to write positive comments online and even to send messages of thanks to my university email account. But situated between the incoherent ranters and the appreciative readers, there is another category of correspondent: the angry right-winger who fancies himself (and it is almost always a "he") quite brilliant and who (rather impatiently) wishes to set a wayward author straight.

This is almost always comical. For example, a colleague of mine wrote a column a few years ago regarding impeachment in a different context, and he used the word "impeach" as a shorthand for impeach-then-try-then-convict-then-remove-from-office, as is common.

RELATED: Neil Buchanan : To Impeach or Not to Impeach?

He soon received a hectoring email from an aggrieved reader who firmly reminded him that "impeach" has a narrower meaning, going on to insist that this egregious error made my colleague unfit to teach in a law school. As is common in such emails, my colleague's correspondent continually put scare quotes around the word professor to communicate disdain.

This pattern makes it unnecessary and unwise for a columnist to spend much time reading comments (from any medium), and like most columnists, I tend at most to glance at such things.

Even a cursory engagement with some of those comments, however, does have one upside. Reading them is enough to make it unnecessary to watch Fox News, because it becomes clear —simply by noting commonalities among their ramblings —what the Murdoch-led media is feeding the pro-Trump devotees on any given day.

Because Trump's speaking pattern and tweets tend to mimic the style and level of thinking of an adolescent child, many of his followers (even those who appear to be adults, based on other indicators) tend to adopt his embarrassing habits. Thus, for example, people (like me) who attack Trump are now assailed as "haters." Who knew that a 2000 music video would become a lifeline to an unpopular president's minions?

Adopting another adolescent style of taunting, these hater haters also describe Trump's critics as "dumb," "stupid," "losers," and of course "libtards." And we wonder whether perhaps Trump has coarsened our national discourse over the last few years!

RELATED: Neil Buchanan : What Will It Take for Republicans To Dump Trump?

Beyond the immature insults, however, it is interesting that Trump's backers have lately decided (again, I assume because Fox is now pushing this idea) that Trump is not impeachable because he has supposedly not done anything for which a prosecutor could indict him in a criminal proceeding.

Apparently, some lawyers (who, we are to believe, must surely be much smarter than the experts on the other side) have said as much on the fair-and-balanced channel, so it must be true.

All of which means that it might be a good time to stop and ask what actually is required for impeachment and removal of a president. Is it true that if he cannot be sent to jail for it, he cannot be impeached for it?

This is an important question, because even some anti-Trump politicians and commentators seem to have convinced themselves that the answer is yes. We thus see some scolding comments along the lines of "we liberals have to accept that impeachment is neither politically realistic nor substantively appropriate ," or words to that effect.

It turns out, however, that the answer is straightforward, and it is not what Trump's backers want to hear: indictable is not a necessary condition for impeachable.

Indeed, this should not be surprising, because criminal liability can lead to the deprivation of liberty. We put a high bar on putting someone in jail because personal freedom is a bedrock principle of our constitutional system, and we want to prevent the sovereign from being able to put people away (and in some cases execute them) without serious procedural safeguards.

By contrast, no one has the right to be president (or a judge, or a legislator). We take elections and appointments seriously (although Trump refused to promise that he would have done so, had he lost in the Electoral College as he did the popular vote), which means that we do not remove people from office lightly.

But removal from office is not a deprivation of liberty. If the impeachable offenses happen also to be criminal acts, then the wrongdoer can be prosecuted after (or perhaps even before) being kicked out of office. The two acts —removal from office and imprisonment —are hardly the same thing, and it thus should not be surprising that they would have different standards.

So, is Trump currently impeachable, based on what we already know? Yes. Yes, he is. One analysis of this question was offered by Laurence Tribe in a recent op-ed in The Washington Post.

I should note here that I cite Tribe not because he is the definitive source on all matters constitutional. True, he is a constitutional law professor at Harvard who has had a long and impressive career. Even so, I (sometimes co-authoring with Professor Michael Dorf, sometimes writing alone) have publicly clashed with Tribe in the past on substantive matters of law. I would never say that he is always right.

Of course, I would certainly not say that he is always wrong. The point is that in this instance Tribe makes a very persuasive case. In part, he focuses on Trump's blatant violations of the "emoluments clause" of the Constitution, which is a perfect example of something that is a constitutional violation that is not necessarily a criminal violation.

Beyond that, however, Tribe's case for impeachment makes the simple and powerful point that the phrase "obstruction of justice" in the impeachment context does not have the same meaning that it does in the criminal context. As he put it elegantly: "To say that [what Trump has admitted to doing] does not in itself rise to the level of 'obstruction of justice' is to empty that concept of all meaning."

Again, indictable and impeachable do not mean the same thing. And Tribe's argument ultimately relies on (but, most likely for reasons of space, did not describe) the proper meaning of the key phrase in the Constitution: "High crimes and misdemeanors."

People can understandably be misled by those words to think that we are again talking solely in criminal justice terms. The word "crime" is right there, after all, and the word "misdemeanor" is most commonly used in the context of a criminal indictment.

We thus can imagine Trump's defenders parsing the words —which they would immediately attack anyone else for doing, of course —to find a way to make Trump's actions non-impeachable. For example, does "high" modify "crimes and misdemeanors" or just "crimes"? If the former, what in the world is a "high misdemeanor," given that misdemeanors are low-level crimes?

Just as Tribe points out regarding the crime-y sounding phrase "obstruction of justice," however, "high crimes and misdemeanors" has a clear non-criminal meaning in the impeachment context. Importantly, both the Supreme Court and legal scholars have agreed that the entire phrase "high crimes and misdemeanors" is to be read as a single term of art, not as four separate words to be analyzed separately.

Just as "due process," "cruel and unusual punishment," "equal protection of the laws," and so on mean something more than their constituent words," the phrase "high crimes and misdemeanors" also carries meaning as a constitutional concept.

There are situations in which scholars disagree about whether the "framers' intent" is the proper way to understand a constitutional concept, but this is not one of them. As an excellent congressional analysis from the Watergate era explains, there is no question that "high crimes and misdemeanors" in the impeachment context was not meant to be co-extensive with the criminal meanings of those words.

Of particular interest is that the framers all seemed to view the phrase as unambiguous, and they treated it as a term of art to reflect its origins in British law.

There was briefly an effort by George Mason to use the word "maladministration," but James Madison objected to that word for being too vague. Mason then substituted "high crimes and misdemeanors agst. the State" to expand impeachment beyond the two delineated offenses of treason and bribery, and his proposal was adopted.

Trump need not, therefore, have committed treason or have been directly bribed in order to be impeachable. And such further grounds for impeachment are not limited only to actions for which criminal indictment is immediately appropriate. Trump, like all presidents, must not "subvert the Constitution," in Mason's words.

And this means that the House and Senate can (and should) view what Trump has already admitted to doing as impeachable offenses. He has fired an FBI director in order to stop an inquiry into potential criminal (and possibly treasonous) activities by his campaign and associates. He has had his people lie about why he fired Comey.

And that is only the most blatant attempt to abuse the powers of his office —which also means, by the way, that the statement that "Trump has the legal right to fire the FBI director" simply does not answer the question of whether the firing is or is not an impeachable offense. That the same presidential powers can be exercised for legitimate and illegitimate purposes does not remove the latter instances from the realm of high crimes and misdemeanors.

Almost exactly a year ago, I wrote a column under the title, "Is This the Beginning of the End of Constitutional Democracy in the U.S.?" My motivating thought there was that there are countless ways in which a president can abuse the powers of the presidency to undermine the constitution and the rule of law. Trump could, I feared, ride a wave of public discontentment into office and then abuse those powers.

That is precisely what has happened. As I wrote above, Trump has taken actions that Republicans would never have countenanced if taken by a Democratic president. Beyond the hypocrisy, however, what Republicans need to decide is when Trump's actions move into the realm of impeachable offenses.

Whatever else they may use to justify not impeaching or convicting Trump, however, there is simply no basis for Republicans to rely on the excuse, "Well, he hasn't committed any crimes that we know about!"

Neil H. Buchanan is an economist and legal scholar and a professor of law at George Washington University. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.