# Does an impeachable offense need to be illegal? **URL:** \ **Category:** Factual Questions\ **Created:** [July 31, 2018, 4:16pm UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875 "2018-07-31T16:16:27Z")\ **Posts on this page:** 13\ **Page:** 2
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [August 1, 2018, 4:17am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/21 "2018-08-01T04:17:56Z")
> [@ElvisL1ves](#): > > Congress can impeach for any reason it pleases. > [@Czarcasm](#): > > Congress can also refuse to impeach no matter how many reasons are given, legal or otherwise. > [@Bricker](#): > > 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. Do we, in fact, have a Supreme Court decision regarding the limits of the impeachment power? That is, has the Supreme Court, for example, struck down an impeachment on the basis that the attempt was not valid because the alleged acts were not “high crimes and misdemeanors”? Conversely, has the Supreme Court specifically stated, in upholding an impeachment, that it will not look into that question? In the lack of either, we don’t know that Congress can impeach for anything. The Court could always decide otherwise. ---
**Author:** ![Mangosteen](https://avatars.discourse-cdn.com/v4/letter/m/6a8cbe/32.png) [@Mangosteen](https://boards.straightdope.com/u/Mangosteen)\ **Post date:** [August 1, 2018, 4:18am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/22 "2018-08-01T04:18:22Z")
> [@Measure\_for\_Measure](#): > > If Trump’s approval among Republicans dropped to 65%, the political calculus would change. Well right now Trump’s approval among Republicans is 90%, yes Ninety Percent! (Gallup July 9 - 15 \_ 2018). And his approval rating has consistently been in the high 80’s ever since the beginning of the year. What pray tell would bring it down to 65%? ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [August 1, 2018, 4:22am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/23 "2018-08-01T04:22:02Z")
> [@DSYoungEsq](#): > > Conversely, has the Supreme Court specifically stated, in upholding an impeachment, that it will not look into that question? Yes, in Nixon v. United States (not that Nixon), the court held that impeachments were not reviewable by the courts. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [August 1, 2018, 4:24am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/24 "2018-08-01T04:24:58Z")
> [@MEBuckner](#): > > 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. The key phrase that he used in your excerpt was “viability” as president. That, in my view, is what impeachment comes down to: whether or not the president can continue to function in his role, and to the degree to which the national legislature has confidence to that effect. That, of course, has a lot to do with the mood of the country. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [August 1, 2018, 4:45am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/25 "2018-08-01T04:45:50Z")
> [@CurtC](#): > > I suggest you read MEBuckner’s excellent post #7 above. I did. I don’t see anything which contradicts what I said. I quoted the Constitution; that’s the text of the law. Now what does that law precisely mean? What is a High Crime? The Constitution doesn’t say. I might have one opinion of what constitutes a High Crime. MEBuckner might have a different opinion. Charles Black might have an opinion that’s different from both of ours. But none of us is in a position to tell Congress or the Supreme Court that they have to abide by our opinion. Lord Feldon cited Nixon v. United States (1993) which said that Congress was the sole authority to interpret impeachment law. Or did it? The decision said that Congress had the sole authority to set the procedures for impeachment; it didn’t specifically say that Congress had the sole authority to define what impeachable offenses were. A future Supreme Court decision might decide that precedent only answered the former question and not the latter. There’s the precedent of Powell v. McCormack (1969) - in that decision the Supreme Court stated it did have jurisdiction over what constituted Congress’ jurisdiction. ---
**Author:** ![asahi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/asahi/32/8693_2.png) [@asahi](https://boards.straightdope.com/u/asahi)\ **Post date:** [August 1, 2018, 4:53am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/26 "2018-08-01T04:53:47Z")
> [@DSYoungEsq](#): > > Do we, in fact, have a Supreme Court decision regarding the limits of the impeachment power? That is, has the Supreme Court, for example, struck down an impeachment on the basis that the attempt was not valid because the alleged acts were not “high crimes and misdemeanors”? Conversely, has the Supreme Court specifically stated, in upholding an impeachment, that it will not look into that question? > > In the lack of either, we don’t know that Congress can impeach for anything. The Court could always decide otherwise. Impeachment is political, not legal. Any court that defied the public’s will would find itself delegitimized and those justices who rendered decisions in defiance of popular opinion would be impeached. And there wouldn’t be a goddamned court precedent in the world that could stop it. ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [August 1, 2018, 10:18am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/27 "2018-08-01T10:18:21Z")
Putting aside the substantive question, what did _Professor Black_ (mentioned above) mean when he wrote that someone “could not” be impeached for some reasons? ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [August 1, 2018, 11:45am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/28 "2018-08-01T11:45:15Z")
> [@Melbourne](#): > > Putting aside the substantive question, what did _Professor Black_ (mentioned above) mean when he wrote that someone “could not” be impeached for some reasons? I think [this quote](https://www.lawfareblog.com/impeachable-offense) explains it. > [@](#): > > There may be no way to keep Congress from violating their letter or spirit, but the conscientious congressman has to feel them, in spirit at least, as bounding and confining the operation of the vague words, “high Crimes and Misdemeanors.” In other words, I don’t think he meant that a bound and determined Congress couldn’t impeach someone for those reasons, but that they ought to feel guilty about it – perhaps feel too guilty to actually go through with it. ---
**Author:** ![Czarcasm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/czarcasm/32/4050_2.png) [@Czarcasm](https://boards.straightdope.com/u/Czarcasm)\ **Post date:** [August 1, 2018, 12:12pm UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/29 "2018-08-01T12:12:07Z")
> [@Alley\_Dweller](#): > > I think [this quote](https://www.lawfareblog.com/impeachable-offense) explains it. > > In other words, I don’t think he meant that a bound and determined Congress couldn’t impeach someone for those reasons, but that they ought to feel guilty about it – perhaps feel too guilty to actually go through with it. Please note that he wrote that back in 1974, long before the Clinton presidency, and that he died in 2001, long before the Trump presidency. Do we know if he wrote an update on his views on impeachment during the time of the Clinton hearings? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 1, 2018, 1:24pm UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/30 "2018-08-01T13:24:22Z")
> [@Little\_Nemo](#): > > I did. I don’t see anything which contradicts what I said. > > I quoted the Constitution; that’s the text of the law. Now what does that law precisely mean? What is a High Crime? The Constitution doesn’t say. > > I might have one opinion of what constitutes a High Crime. MEBuckner might have a different opinion. Charles Black might have an opinion that’s different from both of ours. But none of us is in a position to tell Congress or the Supreme Court that they have to abide by our opinion. > > Lord Feldon cited Nixon v. United States (1993) which said that Congress was the sole authority to interpret impeachment law. Or did it? The decision said that Congress had the sole authority to set the procedures for impeachment; it didn’t specifically say that Congress had the sole authority to define what impeachable offenses were. A future Supreme Court decision might decide that precedent only answered the former question and not the latter. There’s the precedent of Powell v. McCormack (1969) - in that decision the Supreme Court stated it did have jurisdiction over what constituted Congress’ jurisdiction. We’ve been over this so many times I’m surprised you’re still asking this question, and making the false claim you made earlier. In fact, you contradict your earlier statement with the correct answer where I added emphasis. If you want to know the history of “high crimes and misdemeanors”, start with [the article in wikipedia.](https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors) It’s quite good. > [@](#): > > 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.[5] Some of these charges were crimes. Others were not. > > \ > > The very difficult case of impeaching someone in the House of Representatives and removing that person in the Senate by a vote of two-thirds majority in the Senate was meant to be the check to balance against efforts to easily remove people from office for minor reasons that could easily be determined by the standard of “high crimes and misdemeanors”. It was George Mason who offered up the term “high crimes and misdemeanors” as one of the criteria to remove public officials who abuse their office. Their original intentions can be gleaned by the phrases and words that were proposed before, such as “high misdemeanor”, “maladministration”, or “other crime”. Edmund Randolf said impeachment should be reserved for those who “misbehave”. Cotesworth Pinkney said, It should be reserved “…for those who behave amiss, or betray their public trust.” As can be seen from all these references to “high crimes and misdemeanors”, there is no concrete definition for the term, except to allow people to remove an official from office for subjective reasons entirely. > > Alexander Hamilton said, “…those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” As noted, impeachment has happened in the US for things that were not crimes, so it’s established that an actual crime need not be committed. ---
**Author:** ![ftg](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ftg/32/2801_2.png) [@ftg](https://boards.straightdope.com/u/ftg)\ **Post date:** [August 1, 2018, 3:18pm UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/31 "2018-08-01T15:18:07Z")
Note that one of the proposed articles of impeachment against Clinton was that he failed to uphold certain campaign promises. That one didn’t make it out of committee. If failing to carry out campaign promises was a crime there’d be a _lot_ of politicians doing time. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [August 2, 2018, 4:41am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/32 "2018-08-02T04:41:09Z")
> [@John\_Mace](#): > > We’ve been over this so many times I’m surprised you’re still asking this question, and making the false claim you made earlier. In fact, you contradict your earlier statement with the correct answer where I added emphasis. If you want to know the history of “high crimes and misdemeanors”, start with [the article in wikipedia.](https://en.wikipedia.org/wiki/High_crimes_and_misdemeanors) It’s quite good. > > As noted, impeachment has happened in the US for things that were not crimes, so it’s established that an actual crime need not be committed. It’s a Wikipedia article not something from a legal journal. But I’ll take it as a cite. Did you notice the part where it said there have been different definitions of what constitute high crimes? Which is the point I have been making. Unless you can point to a Supreme Court decision that establishes a definition for what a high crime is under American law, I’ll stand with saying it’s an open question. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [August 2, 2018, 4:49am UTC](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875/33 "2018-08-02T04:49:30Z")
> [@Little\_Nemo](#): > > Unless you can point to a Supreme Court decision that establishes a definition for what a high crime is under American law, I’ll stand with saying it’s an open question. But the Supreme Court can’t do that. The Supreme Court deciding what is impeachable would be as effectual as the Supreme Court declaring war on Bhutan. That power simply belongs elsewhere. The only places that can decide what is a high crime and misdemeanor are the bodies charged with the “ **sole** Power of Impeachment” and the “ **sole** Power to try all Impeachments.” [Previous page](https://boards.straightdope.com/t/does-an-impeachable-offense-need-to-be-illegal/818875.md?page=1)