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Background

Impeachment may be conducted by congress for the following reasons outlined in the U.S. Constitution:

Article I, Section 2, Clause 5 of the United States Constitution provides:

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3, Clauses 6 and 7 provide:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article II, Section 2 provides:

[The President] ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Article II, Section 4 provides:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The first two, Treason and Bribery parallel crimes in the legal system (I say parallel because an impeachment charge by the House of Representatives is different from a Grand Jury indictment) and could easily draw upon the legal system for specific details as to what qualifies treason and bribery. However, "high crimes and misdemeanors" is morphic term from what I understand, and thus the potential is wide open for a federal officer to be removed from office for something that isn't necessarily a crime just because both Houses of Congress voted enough to say it is. If that was the case, then, given enough votes, both houses of congress could use impeachment as a political cudgel to oust anyone they so chose based off the loose definition of high crimes and misdemeanors.

Now, as a matter of practicality, the occurrences of impeachment in the United States are few and far between and in recent memory only the impeachments of the President have proven to be controversial (contrived or not). However, it is this potential toxic side effect - that if someone acting in their official duty happens to go against the politics of the day - lead me to ask the following question...

Question

Given that what qualifies as a high crime or misdemeanor is left to the legislature to define, why allow both houses of congress to remove someone from office with what may potentially not be a crime?

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  • 4
    Because someone in a high ranking office with lots of power can cause damage to this country, its people and reputation by their action even if it is not criminal?
    – Joe W
    Feb 17 at 21:53
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    Checks and Balances
    – Juhasz
    Feb 17 at 22:50
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    This is a very good question. Let's say, as an example, that within the first year of 45's term, the Republican Party had disavowed him completely. Not necessarily all of them, but they (the RP) "kicked him out". The Congress (at least the non-Trumpist's) could have impeached him and tried him, on basically trumped (no pun intended) up charges to remove him, just because they decided they didn't like the fact that he was a non-politician.
    – CGCampbell
    Feb 18 at 12:28
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    I disagree with the duplicate closure. This isn't talking about (necessarily) a rogue President and what can be done, but a "rogue Congress" who kicks out a President because of dislike, or at least non-obviously-provable 'crimes'.
    – CGCampbell
    Feb 18 at 12:31
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    Government officials are held to a higher standard than the general public. The general public does not have to swear an oath to uphold the Constitution. Government officials do have to swear such oaths. While ordinary crimes can sometimes qualify as "high crimes and misdemeanors", that is not always the case, and "high crimes and misdemeanors" can include things that would not qualify as ordinary crimes. Feb 18 at 15:30
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Consider: POTUS has unrestricted right to declassify documents. A hypothetical POTUS (for whatever reason) knowingly and willingly declassifies and releases a trove of CIA documents including the personal identifying information of hundreds of foreign-based undercover CIA agents.

Has this POTUS committed a crime?

OTOH, has this POTUS done grievous damage to the country.

Should this POTUS be impeached?

Should Congress "be allowed" to impeach this official, despite that it is not apparent that a crime was committed ?

The answer to that (last) question should be obvious.

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You seem to have answered your own question: "...thus the potential is wide open for a federal officer to be removed from office for something that isn't necessarily a crime just because both Houses of Congress voted enough to say it is." Impeachment & conviction do not require the offense to be a crime. In the Constitution, the word "misdemeanor" is used in the 18th century sense of bad behavior of any sort, not the modern one of a criminal offense less serious than a felony.

Here's a link to an article explaining that, and the concept of impeachment in general, which is rooted in several centuries of English law prior to independence: https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/

Parliament has carefully kept impeachment open-ended, recognizing that one never knew in advance what form the royal urge to autocracy might take or what sort of devilry corrupt or ambitious officials might be up to. Over the centuries, Parliament impeached a good many people for a wide variety of misconduct. When it did, the articles of impeachment tended to describe the defendant’s behavior as “high crimes and misdemeanors,” a usage that dates back to 1386. Critically, a great deal of the misconduct Parliament deemed impeachable wasn’t criminal at all, at least in the sense of violating any preexisting criminal statute or constituting any judge-created common-law crime.

So a President could, and arguably should, be removed for any number of things that aren't in any sense criminal, such as habitual drunkenness or spending all his/her time playing golf and ignoring the duties of the office. Or just plain insanity. Though that's now covered under the 25th Amendment, it wasn't ratified until 1967.

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    James, while you agree (in your answer) that Congress can remove a President "at their whim", you don't really go into why. Is there any indication if that is what the Framers intended? (I did +1 anyway)
    – CGCampbell
    Feb 18 at 14:54
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    @CGCampbell: Certainly. It's written right there in the Constitution: "high crimes and misdemeanors", which to reiterate is used in the 18th century sense of the word, not the modern sense. (Languages do change, you know.) Here's a link to a nice article explaining the history: theatlantic.com/ideas/archive/2019/10/…
    – jamesqf
    Feb 18 at 17:50
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    In fact, the adjective "high" distributes over both nouns. "High misdemeanor" was a phrase used in the 17th and 18th century. So what it really means is something like "serious misdeeds, whether they are crimes or not."
    – phoog
    Feb 19 at 7:49

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