The greatest canard being advanced by Trump, his lawyers and defenders is that the articles of impeachment in his impeachment trial are deficient because they do not charge that he committed a specific identifiable crime.
Nothing can be further from the truth.
A simple review of American history demonstrates the fallacy inherent in this argument.
The impeachment clause that was under consideration during the Constitutional Convention in Philadelphia in 1787 was being discussed and debated while the overall framework of the proposed Federal system was being designed.
The Constitution had neither been approved by the Convention nor ratified by the states.
Thus, there was no Executive, Legislative or Judicial branches in existence.
There was no House of Representatives or Senate which could propose and enact laws. There was no President who could approve or veto enactments and, as a result, there was no penal code in existence which could define the crimes that would make the President and other officers of a government criminally liable or liable for impeachment.
In determining what offenses might be included in an impeachment clause, the Framers included those crimes that they were familiar with having just fought a war of independence a decade before. The crimes of Treason and Bribery were within their recent experience but much debate would ensue over what other conduct would constitute an impeachable offense.
Professor Engel in his portion of the work, Impeachment, referenced in my earlier blog post on this subject, quoted Governeur Morris, a convert to the requirement for an impeachment clause on the subject of bribery; “”A president may be bribed by a greater interest to betray his trust and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay.”
The Framers in trying to decide what other conduct might be a basis upon which to impeach a president, looked to the several state constitutions in existence. Five states adopted “maladministration” as the ground for impeachment. New York specified “misconduct” and North Carolina, “misbehavior.” James Madison suggested “incapacity, negligence or perfidy.”
Professor Engel recounts how Virginia’s George Mason grew frustrated at the impasse, complaining; “Why is the provision restricted to treason and bribery only? He suggested that they reconsider “maladministration.” Madison, however, objected that “maladministration” was too subjective and that a president could then be removed for solely political reasons. A malevolent intent should be required. Ultimately, Mason bowed to Madison’s reasoning and proposed “high crimes and misdemeanors.”
Professor Engel notes that the term “High crimes and misdemeanors” has “puzzled readers ever since.” I can confess that while attending law school and throughout my career as a lawyer and a judge, if you had asked me to explain what “High crimes and misdemeanors” meant, I would have said “high crimes” was synonymous with the term “felony” and misdemeanor had its ordinary accepted meaning.
I was astounded to discover that my interpretation would have been wrong.
Engel explains that “High” offenses appeared in English law as early as 1386 and evolved over centuries along a common thread. ‘High’ offenses were committed against the sovereign’s state, or against the people in republics where the people had sovereignty on their own. The adjective is the key. A ’crime’ occurred where one citizen or subject harmed another. “High crimes” were conversely those committed against the crown in a monarchy, or the people in a democracy. The term says nothing about the severity of the crime or its consequent penalty, merely as one that surpassed mere criminal law, being a more fundamental assault against the body politic…….Put in even clearer terms, ‘high’ crimes warranting impeachment were those a president might commit against the entire American people.” Engel further explains “To the Constiution’s authors, therefore, a ‘high crime and misdemeanor,’ need not violate an extant law or statute, and neither would a president who commits common violation be guilty of a ‘high’ offense. An impeachable offense need not be illegal at all.”
Thus, it seems that a president who “shoots someone on 5th Avenue” might ultimately be prosecuted criminally for it, he would not be liable for impeachment for it but one who interfered or obstructed the investigation into it, could be.
Kenneth Starr and Alan Dershowitz are clearly wrong in suggesting that absent the inclusion of a specific criminal offense that the articles of impeachment are deficient.
I suspect that they know that too.