Editor's note: Joe Maschman is a Common Cause legal fellow.
The Constitution authorizes impeachment of the president on the grounds of treason, bribery, or “other high Crimes and Misdemeanors.” Although the final category sounds like a catch-all, it’s actually a term of art in English law dating to 1386. It described offenses separate from the ordinary criminal law and encompassed crimes against the state ranging from corruption and maladministration to simply breaking a promise made to Parliament.
In recent days, amid reports of President Trump’s involvement with the FBI investigation of Russia’s meddling in last year’s election, many have wondered whether the president is guilty of obstruction of justice and if such an offense would be impeachable. There is no clear answer. It is important to note that, just as criminal law was historically treated as separate from “high crimes and misdemeanors,” the discussion of the crime of obstruction of justice is separate from the question of impeaching a president for it.
The federal crime of obstruction of justice applies to “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law” in a proceeding or investigation by a government department or agency or the Congress. “Corruptly” is defined as “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.”
To obtain a conviction in federal court, prosecutors must prove those elements beyond a reasonable doubt. To impeach a president however, a less stringent standard applies. An impeachable offense, as then-Rep. Gerald Ford famously asserted in 1970 , is “whatever a majority of the House of Representatives considers it to be at a given moment in history.”
This is not to say we cannot take lessons from the work of previous Congresses. Obstruction of justice was among the articles of impeachment drafted against both Presidents Nixon and Clinton. In Nixon’s case, White House tapes revealed the president giving instructions to pressure the acting FBI director into halting the Watergate investigation. Based partially on that information, the House Judiciary Committee in 1974 included “interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees” as one of its nine articles of impeachment. The committee did not apply the standards from the criminal statute; it chose its own.
There is no magic moment at which an action becomes impeachable, nor a bright line to be crossed when the House must act. Federal criminal statutes do not govern this process. Impeachment is a political question. When members of Congress conclude, based on precedent, the specific facts, and their own consciences, that a public official’s action is impeachable or warrants an impeachment investigation, then - and only then - may proceedings begin.
Office: Common Cause National