This weekend, while most Americans were enjoying an extra day off, the US House managers of President Trump’s impeachment and Trump himself both filed their opening briefs in the impeachment trial.
The House manager’s brief is more than 100 pages long and reads, well, like a legal brief. It details, with citations to legal authorities and to the record, the evidence that Trump pressured Ukraine “help him win his own reelection by announcing investigations that were politically favorable for President Trump and designed to harm his political rival,” as well as evidence that Trump obstructed the congressional investigation into his actions.
Trump’s brief, by contrast, is seven pages — and that’s counting the cover page. It reads more like a Sean Hannity monologue than it does a legal document. The Trump brief barely attempts to rebut the factual allegations against the president, and contains no citations. Much of it rests on a claim that the articles of impeachment against Trump are “constitutionally invalid on their face” because they “fail to allege any crime or violation of law whatsoever.”
There are two problems with this argument. One is that Trump’s effort to pressure Ukraine into opening a political investigation into former Vice President Joe Biden likely violates at least one federal criminal statute.
More importantly, it does not matter whether Trump’s actions were criminal — they still may form the basis of an impeachment. Yes, the Constitution states that public officials may only be impeached for “high crimes and misdemeanors,” but that phrase had an expansive meaning when it was written into the Constitution.
As Justice Joseph Story explained in 1833, “there are many offences, purely political, which have been held to be within the reach of parliamentary impeachments, not one of which is, in the slightest manner, alluded to in the statute books.”
Public officials may find novel ways of violating the public trust that Congress did not think to criminalize first. But that should not force the nation to leave those officials in office. As Story explained, “political offences are of so various and complex a character, so utterly incapable of being defined or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.”
Trump may be removed from office regardless of whether he committed a crime
“An impeachable offense,” future president Gerald Ford told his fellow members of the House in 1970, “is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Likewise, the question of whether to remove a public official turns on “whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.”
Many scholars disagree with Ford’s ultra-expansive interpretation of the impeachment power — could a president really be removed from office because of something as inoffensive as a bad haircut? — but there are a wealth of authorities signaling that “high crimes and misdemeanors” includes more than just a violation of the criminal law.
The impeachment power, Alexander Hamilton wrote in the Federalist Papers, extends to “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” Sir William Blackstone’s Commentaries on the Laws of England, a seminal legal text that American judges rely on to this day, defined the term “high misdemeanor” to include “maladministration.” As a member of Congress, James Madison argued that a president could be impeached for “wanton removal of meritorious officers.” An 1828 dictionary defined “misdemeanors” to include “ill behavior; evil conduct; fault; mismanagement.”
Think of it this way: Suppose that, immediately after taking the oath of office, President Trump had hopped on a flight to one of his golf courses and simply refused to show up to work. He wouldn’t sign bills, appoint anyone to political offices, or perform any of the other tasks that can only be performed by the president of the United States. In this scenario, America would functionally be left without a president for as long as Trump remained in office.
Would Congress be powerless under such circumstances?
Not showing up to work isn’t a crime, so under Trump’s definition of “high crimes and misdemeanors,” Congress could not remove him from office if he simply refused to do his job. But failing to show up to work would constitute “maladministration,” “mismanagement,” or “violation of some public trust,” and thus could form the basis for impeachment under the more expansive definition used by many of the framers.
Impeachments of any kind are rare in American history — before Trump, just 19 federal officials were impeached, most of them judges. But this short list of impeachments includes some officials who were removed for non-criminal activity. As Laurence Tribe and Joshua Matz note in To End a Presidency: The Power of Impeachment, “the first successful judicial impeachments of the twentieth century—Judge Robert Archbald (1913) and Judge Halsted Ritter (1936)—both involved misconduct that didn’t break any criminal laws.”
Archbald was removed from office for participating in business transactions with litigants before his court. Ritter was impeached on a variety of charges, including an allegation that he took a kickback to appoint a former partner as a bankruptcy receiver. Ultimately, however, he was only convicted on a vague charge of “general misbehavior and conduct that brought his court into scandal and disrepute.”
Indeed, Congress may even impeach and remove an official based on charges that a court already rejected. As Tribe and Matz point out in their book, the Senate convicted and removed Judge Alcee Hastings (now a member of the House) in 1989 for conspiring to take bribes, even though Hastings was acquitted of the same charges in a criminal trial.
Trump’s conduct may violate several federal criminal laws
It’s worth noting that the specific allegations against Trump — that he threatened to withhold aid from Ukraine unless Ukraine opened a politically damaging investigation into Biden — may violate several criminal statutes.
Federal campaign finance law makes it a crime, for example, to “solicit, accept, or receive a contribution or donation” from a foreign national. Under this statute, a “contribution or donation” is defined as “money” or another “thing of value.” While not all legal experts agree on whether Trump’s conduct violates this law, former special counsel Robert Mueller read the campaign finance law broadly.
“Political campaigns frequently conduct and pay for opposition research,” Mueller wrote in his report. Moreover, “a foreign entity that engaged in such research and provided resulting information to a campaign could exert a greater effect on an election, and a greater tendency to ingratiate the donor to the candidate” than if they gave the candidate money.
Opposition research, in other words, could constitute a “thing of value” that a politician may not solicit from a foreign government.
Similarly, a federal anti-bribery statute imposes criminal sanctions on a public official who “corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for ... being influenced in the performance of any official act.”
Thus, a public official could potentially be prosecuted for bribery if they held up foreign aid to demand valuable opposition research from a foreign government.
Additionally, the Hobbs Act prohibits any action that “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion.” Trump’s attempt to pressure Ukraine into targeting Biden might constitute “extortion” under this statute.
To be clear, the question of whether Trump could be prosecuted under any of these statutes hinges on uncertain legal questions that have not been fully addressed by the courts. If a federal prosecutor later brought charges against Trump, there’s no certainty that he would be convicted.
But as the Hastings precedent shows, a public official may be removed from office by impeachment even if they were previously acquitted in a criminal trial. And, as the early history of the impeachment power shows, the words “high crimes and misdemeanors” stretch broadly to reach non-criminal violations of the public trust or even incompetence.
Trump’s claim that he was improperly impeached is simply wrong.