President Donald Trump’s defense team is arguing that a president should not be convicted by the Senate on articles of impeachment that do not include a criminal violation, putting the very definition of an impeachable offense at the center of the Senate trial set to begin Tuesday.
And some legal experts said the outcome of that debate could set a new, higher standard for removing a president from office in future impeachments.
Trump’s memorandum released Monday, much of which reads more like a political argument than a legal or constitutional one, stresses that the two articles of impeachment “allege no crime or violation of law whatsoever—much less ‘high Crimes and Misdemeanors,’ as required by the Constitution.”
Allowing the impeachment of a president who is in charge of an entire branch of government on such a “diluted standard” would “permanently weaken the Presidency and forever alter the balance among the branches of government in a manner that offends the constitutional design established by the Founders,” Trump’s legal team states in the memo.
But outside constitutional law scholars widely disagree, saying that the drafters of the Constitution’s “high Crimes and Misdemeanors” phrase specifically allowed for the impeachment and removal of a president who had not violated a statutory crime.
“It is indisputable that the framers were aware of the phrase’s origins and that it included non-criminal conduct,” Frank O. Bowman III, a law professor at the University of Missouri, wrote Monday on a website for his book, “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.”
Historical evidence “demonstrates unequivocally that the phrase was a term of art employed virtually exclusively in impeachment and that it embraced a wide array of misconduct by government officials that was not criminal,” Bowman wrote.
Some Democrats on the House Judiciary Committee have cast the “abuse of power” impeachment article as the highest crime against the Constitution. And the House’s trial memorandum released Saturday argues that impeachable offenses “need not be indictable criminal offenses.”
“Rather, as [Alexander] Hamilton explained, impeachable offenses involve an ‘abuse or violation of some public trust’ and are of ‘a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself,’” the House memo states.
During the impeachment investigation, House Democrats including Speaker Nancy Pelosi of California had discussed bribery, extortion, campaign finance or obstruction of justice. In the end, none of them made it specifically as an article of impeachment.
Former Harvard Law School professor Alan Dershowitz, who has helped in Trump’s impeachment defense, has argued recently that a person can’t be impeached for anything less than a crime.
Bob Bauer, a former White House counsel for President Barack Obama, wrote Monday on Lawfare that “it would be difficult to overstate the significance of a Senate acquittal on the theory that Dershowitz will be advancing.”
Dershowitz also has argued that the crime must be similar in nature to treason or bribery, Bauer wrote, and that could create new hurdles for removing from office presidents who are abusing their powers.
Bauer also pointed out that Senate Majority Leader Mitch McConnell, R-Ky., on the floor in speeches against the Trump impeachment, conceded that the Constitution does not “strictly” limit impeachable offenses to an “actual crime.”
But McConnell “believes that the limitation should be at least a norm, needed as a safeguard against ‘subjective, political impeachments,’” Bauer wrote.
Dershowitz and McConnell’s arguments could help “set a very different precedent” in impeachments that “there is no room for removing a president for the serious abuse, or repetitive abuses, of the power of his office,” Bauer wrote.
Former U.S. attorney Barbara McQuade, who testified before the House Judiciary Committee in June that Trump had committed multiple crimes of obstruction of justice as described in the special counsel investigation into Russian interference in the 2016 election, expressed concern about what an acquittal based on that argument would mean.
“Trump certainly violated the law, but the harm of falsely claiming that impeachment requires a crime is that it becomes precedent for next time,” McQuade tweeted Saturday.
Trump’s memo shows that his team will press that argument. The first argument is that the “abuse of power” article of impeachment fails because it does not identify any impeachable offense.
“House Democrats’ novel theory of ‘abuse of power’ improperly supplants the standard of ‘high Crimes and Misdemeanors’ with a made-up theory that would permanently weaken the Presidency by effectively permitting impeachments based merely on policy disagreements,” the Trump memo states.
On Sunday, a video of Dershowitz on CNN in 1998 surfaced on social media that shows he did not always agree with the argument he is now helping Trump make.
“It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty,” Dershowitz states on the video.
Since the House impeached Trump last month, the Government Accountability Office found that Trump was in violation of the impoundment control law when the administration withheld $391 million in military aid to Ukraine.
Trump’s dealings with that aid form the core of the impeachment articles, but the impoundment law would not be a criminal violation.
Sources working with the president’s legal team also said that while the White House disagrees with the GAO finding, the House has not properly incorporated that allegation into the case being brought to the Senate.
“I’m not going to get into too much detail on something that’s not in the articles of impeachment except to point out that it’s not in the articles of impeachment,” one of the sources said. “We’re going to try on a specific set of charges spelled out in a charging document. The charging document doesn’t include anything about that GAO report, so in our view that’s not properly part of the accusation that’s been brought to the Senate.”
That could mean that an evidentiary argument awaits, but unlike in a normal courtroom it wouldn’t likely be the presiding judge — Chief Justice John G. Roberts Jr. — but rather the senators themselves who could have to decide whether the GAO report should be part of the case up for consideration.
Alternatively, House impeachment managers led by Intelligence Chairman Adam B. Schiff, D-Calif., could seek to get permission from the House to amend the original charges.
Niels Lesniewski contributed to this report.