Not sure if there is a GQ answer for this, since impeachment and removal from office of a president have not happened.
Rudy Guiliani is claiming that even if Trump colluded with Russia during the 2016 election, such collusion is legal. If in fact such collusion is legal, does that also imply that it is not an impeachable offense? My understanding is that the definition “high crimes or misdemeanors” is up to the discretion of Congress and does not depends on the breaking of any specific laws (although illegal activity would certainly help).
Correct. Congress could impeach for an act that is not a crime. Congress could refuse to impeach if the President danced naked in the Rose Garden smeared with the blood of his many victims. The decision is political and unreviewable.
Ultimately it places final power in Congress’ hands.
Charles L. Black, Jr., a professor and scholar of American constitutional law, wrote Impeachment: A Handbook during the Watergate crisis. An excerpt of that book, “The Impeachable Offense”, was posted on the Internet last year (at the Lawfare blog). I think the late Professor Black’s analysis is a good one, and has a lot to say about not only Nixon but also about the impeachment of President Clinton, and of course about any possible impeachment of President Trump.
According to Black, there is not necessarily a simple relationship between an act being criminal and an act being impeachable. He gives examples of Presidential acts which would be criminal, but arguably not impeachable; and of Presidential acts which might not be criminal, but arguably would be impeachable. Professor Black did note that:
So shooting someone on Fifth Avenue (even it the victim wasn’t, say, a political opponent of the President) would still be impeachable.
Professor Black summarizes as follows:
I would argue that “collusion with a hostile foreign power”, whether or not such a thing is strictly illegal, is exactly the sort of thing Professor Black was talking about as constituting Presidential conduct that would “so seriously threaten the order of political society as to make pestilent and dangerous the continuance in power of their perpetrator”. Black also discusses “the deliberate harassment of political opponents—the bugging of their offices, the circulation of known lies about them, the attributing to them of statements they never made, and so forth”; pointing out that on the one hand, such things are “highly corruptive of the political process” but that on the other hand, “politics is known by all not to be croquet”, so a degree of caution is warranted here when considering whether or not such conduct is impeachable. (I would say in particular that merely lying about your opponents is starting to get into First Amendment territory.) The combination of being at the least an accessory after the fact to the hacking of your opponents’ e-mails (the 21st century version of bugging their offices) and of collaborating with a hostile foreign power in this hacking, and in manipulating the dissemination of the information thereby illegally obtained for the purpose of winning the election, seems to me to be very much in line with what Professor Black would consider to be the core of impeachable offenses.
There have only been two Presidential impeachments in the history of the United States, neither of which resulted in a conviction.
We need only look to the impeachment of Andrew Johnson to answer the question. Article X of the Articles of Impeachment was basically “he spoke rudely about Congress.” It does not name a law that this behavior violates. And one might even argue that speaking rudely about Congress is an activity protected by the First Amendment.
So, if you accept the premise that the President is allowed to talk smack about Congress, a President has been impeached for it. No. no President has ever been convicted.
Technically, Congress an impeach for any reason. In terms of what Congress is actually willing to do though, it has to be a crime, or a scandal so huge it SHOULD be a crime, and I think the latter is what Trump faces. Presidents should be held to higher standards than merely “not breaking the letter of the law”. I’d rather wait for Mueller to complete his investigation, but if Democrats think they have enough once all the information is out there, then by all means impeach him.
If the Democrats win the House, they can impeach Trump till the cows come home, but there is absolutely no way they are going to get SIXTY SEVEN Senators to vote to remove Trump from office.
Let’s say the stars line up perfectly for the Democrats during the 2018 mid-terms and they take the Senate 52-48. Are you telling me that they are going to get FIFTEEN Republicans to vote Trump out of office???
I can’t believe the number of people that I run into that think “impeachment” is a big deal. The fact is that it means NOTHING. (Ask Bill Clinton.)
A CONVICTION by 67 Senators. Now that means something.
Interestingly, when Andrew Johnson was impeached, the charge that was thought to get a sure conviction was Article XI which was not for the violation of the Office of Tenure Act but rather insulting Congress and saying it had no power since it did not include all of the States. He was also acquitted of appointing Lorenzo Thomas to fill the office of Secretary of War (Articles II & III). After that the Chief Justice adjourned the Senate and the charge of violating the Office of Tenure Act (Article I) was never voted on.
I think the better way to phrase that is that there is no crime called “collusion”. That’s a layman’s term that could mean many different things. There are, however, campaign finance crimes related to accepting money or things of value from foreign agents and there is a crime of conspiracy, but just not “collusion”. Even if certain acts that we might commonly think of as “collusion” are illegal under a different name.
As others have noted, Congress is free to impeach for any reason at all. But in reality in the modern age, it would be odd (or politically risky) to impeach for non-criminal behavior. Even if the charges were tramped up (pun intended), it is most likely that the House would tie articles of impeachment to some criminal act. Unless, perhaps, the president was insane and then they’d also have the option of the 25th amendment.
The Constitution says that somebody can only be impeached for “Treason, Bribery, or other High Crimes and Misdemeanors”. So the answer is yes, an impeachable offense has to be something illegal.
The loophole is that Congress itself gets to define what it considers a crime for this purpose. So Congress can’t impeach the President for having bad breath - unless it chooses to define having bad breath as a crime in which case it can impeach the President for having bad breath.
One commentary I read said that if Johnson’s impeachment had resulted in him being removed from office, then impeachment would have become a standard weapon in US politics for settling political disputes between congress and executive. But, he survived by one vote.
The excuse for impeaching him was pretty weak, IIRC.