united-states international constitutional-law investigation impeachment
Is the worst version of the accusations against President Trump impeachable?
<p>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. </p>

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

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

<p>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".</p>

<p>Note: </p>

<ul>
<li><p>I described <em>acts</em>, not <em>intent</em>. 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.</p></li>
<li><p>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.</p></li>
<li><p>(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. </p></li>
</ul>

<h2><a href="https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors" rel="noreferrer">High crimes and misdemeanors</a> is interpreted by Congress</h2>

<p>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.</p>

<p>Because impeachment proceedings are political, they are not <a href="https://en.wikipedia.org/wiki/Justiciability" rel="noreferrer">justicable</a> 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.</p>

<p><a href="https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors" rel="noreferrer">Reading the wikipedia entry on High Crimes and Misdemeanors</a> 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.</p>

<p>Some choice quotes from the article:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>&nbsp;</p>

<blockquote>
  <p>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."</p>
</blockquote>

<p>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.  </p>

<p>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.  <a href="https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2268&amp;context=caselrev" rel="noreferrer">In 1999, following Clinton's impeachment saga, Mark Slusar argued</a> this more stringent/narrow interpretation was the prevailing opinion among scholars and Senators.  </p>

<p>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.</p>

<p>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".</p>

<p>In the cases where a federal official has been impeached in the US, the reasons have been:</p>

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

<p>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.</p>

<p>Ignore high crimes and misdemeanors.
Bribery is listed as an impeachable offense in the constitution.</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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 <a href="https://www.newsweek.com/donald-trump-richard-nixon-impeachment-polling-1464494" rel="nofollow noreferrer">levels dropped to 24%</a> 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 <a href="https://www.cnn.com/ALLPOLITICS/stories/1998/12/20/impeachment.poll/" rel="nofollow noreferrer">73% rating at the height of the impeachment</a> and the vote in Senate predictably failed. </p>

<p>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.</p>

<p>For reference, see the Supreme court's decision in <a href="https://en.wikipedia.org/wiki/Nixon_v._United_States" rel="nofollow noreferrer">Nixon v. United States</a>.</p>
