I guess I see abuse of office as being a subset of abuse of power. I have a weakness for specificity (I understand a lot of law-talking guys [a community I am most assuredly NOT a member of] do too).
Beyond that, I’m not prepared to push back, as I indicated above.
So abuse of power might include the “Do you know who I am?!” method of getting out of a traffic ticket even though its not an abuse of office.
In which case I guess with regard to the issue of presidential immunity it is more of a get out of jail free card for abuse of office, but might not affect other abuses of power that are not directly tied to presidential acts of office.
IIRC, McDonnell basically said that if you receive the “gift” after you abuse use your powers, that’s OK.
It is unfortunate that we now pretty much expect that office holders will use their influence to help their friends. A number of years ago, one of our local elementary schools had to be closed for safety reasons. The students were bussed daily about 20 miles. The contract for that was split into multiple contracts of $9,900 to fall below the $10,000 minimum for competitive bidding, and it was issued to the school board president’s friend. Unfortunately legal, but skeevy as hell.
Misfeasance, nonfeasance, and malfeasance are types of failure to discharge public obligations existing by common law, custom, or statute. …
- Nonfeasance is the failure to act where action is required—willfully or in neglect. Nonfeasance is similar to omission.
- Misfeasance is the willful inappropriate action or intentional incorrect action or advice.
- Malfeasance is the willful and intentional action that injures a party.
Currently, the terms misfeasance and nonfeasance are most often used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, by negligence in discharge of the duty but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes.
a few “elements” can be distilled from those cases. First, malfeasance in office requires an affirmative act or omission. Second, the act must have been done in an official capacity—under the color of office. Finally, that that act somehow interferes with the performance of official duties—though some debate remains about “whose official” duties.
In addition, jurisdictions differ greatly over whether intent or knowledge is necessary. As noted above, many courts will find malfeasance in office where there is “ignorance, inattention, or malice”, which implies no intent or knowledge is required.
All that is vague enough so that courts have great leeway, especially to dismiss cases.
If you’d like a point of comparison, here’s the (England and Wales) Crown Prosecution Service guidance on “misconduct in public office”
But as a common law offence, it not only leaves a lot of “it depends” to the jury, it takes second place to statute law offences (off the top of my head, bribery, for one).
And of course, this is why we have courts that are empowered to apply the law, and set precedents. No law will ever be comprehensive enough to explicitly encompass every sort of crime possible. So we allow the courts to rule on the “it depends” kind of things, which establishes a precedent that this particular thing that no one ever did before either is or is not a crime.
A perfect example of this is the Fort Lee lane closure scandal.
There’s no doubt that opening or closing certain lanes of traffic are actions within the bounds of normal practice for the government, but it was found that they closed the lanes for a corrupt reason, and so were found guilty of a crime.
ETA: I guess that should be “at least initially were found guilty of a crime.” SCOTUS kind of screwed that up.