Private fraud as an impeachable offense?

The Constitution permits impeachment of the President for “treason, bribery, or other high crimes and misdemeanors.”  Gerard Magliocca has a terrifically interesting post up at CoOp, asking the following question: is fraud an impeachable offense?  The point of the post is to question whether, if Donald Trump is found liable for civil fraud after being elected President, he could be impeached and removed from office.  Magliocca’s tentative answer is “yes.”  He argues that if the fraud is sufficiently serious, then it should qualify as a “high crime or misdemeanor.”

Magliocca’s argument is worth taking seriously.  That is especially true if one believes that impeachment should be available when the president’s conduct brings dishonor to the office in a way that undermines public trust and confidence in him.  But my admittedly quick but tentative answer is “no,” the alleged private fraud here would not be impeachable.

Let’s set aside for the moment the question of whether the President may be impeached for conduct that occurred as a private citizen before he became President (Magliocca does not deal with that problem, though I think it is worth considering, particularly in light of Hamilton’s observation in Federalist 65 that impeachment proceeds from the “conduct of public men,” or violation “of some public trust,” an observation that Justice Story also made later).  My bigger concern for now is that fraud, of the kind that Trump is claimed to have perpetrated, is not an offense against the state nor an official act of misconduct or malfeasance that undermines public trust and confidence in the officeholder.  There are other reasons, too, but for now I want to focus on this argument.  And again, these are just a few quick thoughts.  I may have more to say on this after further research.  But taking Hamilton – and others like Charles Black and Raoul Berger, both of whom wrote impressively about impeachment – as a guide, one credible view is that the offense must be “political” in nature, in the sense that it harms the institutions of the government.

So one way of thinking about the meaning of the Impeachment Clause of Article II is that, because it identifies treason, bribery, or “other” high crimes and misdemeanors, the impeachable offense, if not treason or bribery, must at least be like or in the same class as those offenses.  And treason and bribery are both serious crimes against the state.  Notably, when the House impeached Bill Clinton, it did so on the grounds of perjury and obstruction of justice – both, also, crimes against the state.  This, as Black wrote, is a kind of ejusdem generis approach to the list of impeachable offenses.

There are, of course, serious grounds for objecting to the claim that an impeachable offense must be a crime, even one against the state.  Black dealt with this problem comprehensively, taking a broader view of the ejusdem generis canon as applied to treason and bribery.  After all, this would mean that if a president committed a murder of a private citizen, or a rape, or abused a child, these would not be impeachable offenses because they are not crimes against the state.  Of course, one response to this is that impeachment is not a means of replacing criminal prosecution.  A president could still be criminally prosecuted (though it is unclear whether this could happen while he remained in office) for his crimes, whether or not he can be impeached for them.

But another, more fatal, consequence of limiting impeachable offenses to crimes against the state would be that conduct that is not criminal (such as civil fraud, though some fraud may also be criminal) would also not be impeachable.  Berger has more to say on the history related to this phrase, but it appears that the phrase “high crimes and misdemeanors,” as originally understood, could refer to conduct that is not an indictable “crime.”  In other words, some serious crimes are impeachable offenses and some are not, and not all impeachable offenses are indictable crimes.

Perhaps the better, broader view, then – and the one that accords with the understanding offered by Black (and, somewhat less clearly, Berger) and, I would argue, Hamilton – includes a crime against the state, as well as other serious (not petty) misconduct or malfeasance in office that harms the institutions or processes of government and undermines public confidence or trust in the officeholder.  And impeachment practice has been consistent with this idea.

For example, when Andrew Johnson was impeached, it was for abusing his power by violating the Tenure of Office Act (which was later held unconstitutional).  According to the list compiled by the FJC, in 1873 Judge Mark Delahay was impeached for intoxication on the bench.  Judge John Pickering was impeached on similar grounds (including mental instability) in 1803.  In the modern era of impeachment, the grounds for impeachment have almost always been crimes against the state (e.g., bribery, tax evasion, obstruction of justice).  The one possible exception to this was Judge Samuel Kent, who was impeached in 2009, but who resigned before the Senate could try him.  Some of the grounds for his impeachment were plainly crimes against the state – false statements and obstructing an official proceeding – but he was also impeached on grounds of sexual assault.  Those listed sexual assault victims, though, were both federal employees, and the articles of impeachment specifically referenced this fact.  This is important, because it connects otherwise private conduct to his office and the judiciary as a public institution.  So in practice, private conduct unconnected to one’s office or to the processes or institutions of government has apparently not been used as a basis for impeachment.

Clearly, defrauding the United States would be an impeachable offense, as it would constitute a serious crime against the state.  And perhaps defrauding a private person while serving as president might also qualify, as it could constitute serious misconduct or malfeasance if office that undermines public trust in the officeholder.  But defrauding a private person before taking office?  That, I think, is a much tougher sell.  Still, consistent with Magliocca’s suggestion, you can get there if you interpret Article II as allowing impeachment for any serious misconduct – before or after taking office, public or private – that significantly undermines public trust or confidence in the president and that brings dishonor to the office.  If that’s the standard (though I am doubtful of that), then the claims against Trump, if proven, would likely qualify.

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