As President Donald Trump’s impeachment trial begins, his supporters continue to dispute the charges against him laid out in articles of impeachment.
“So, this is the first time in history where a president has been impeached for a non-crime for events that never occurred,” Sen. John Cornyn (R-Texas) said Sunday on Face the Nation.
On Fox News Sunday, Sen. Lindsey Graham (R-South Carolina) made a similar comment suggesting that Trump’s impeachment doesn’t include an allegation of a crime. And a document filed Saturday by Trump’s attorneys in response to the articles of impeachment also claims the charges fail to allege a crime.
Trump was impeached on two counts – abuse of power and obstruction of Congress. Obstruction has a place in criminal code, but what about abuse of power?
Is abuse of power a federal crime?
Abuse of power doesn’t appear in the crimes section of the U.S. code, so technically, it isn’t a federal crime.
However, according to a House of Representatives manual, less than one third of impeachment articles previously approved by the House were tied to a specific criminal statute or used the words “crime” or “criminal.”
A House committee also approved a charge of abuse of power against President Richard Nixon, although he resigned before a House vote on that and other charges could take place. The House considered an abuse-of-power charge against President Bill Clinton, but it wasn’t ultimately approved.
Is abuse of power a high crime or misdemeanor?
Trump’s filing from Saturday also claimed that the articles of impeachment fail to allege high crimes and misdemeanors. Cornyn echoed this idea on Face the Nation, saying that Trump was “charged with abuse of power, which is not treason, which is not bribery, which is not a high crime and misdemeanor.”
The Constitution says that presidents and other officials can be impeached for “treason, bribery or other high crimes and misdemeanors.” But the document doesn’t explicitly define high crimes and misdemeanors, a phrase that dates back to 14th century British law, where the concept of impeachment originated. At that time, impeachable misconduct wasn’t necessarily criminal, which carried over to American impeachment law.
According to a report from the House Judiciary Committee during Nixon’s impeachment, high crimes and misdemeanors historically involved damage to the state and could include abuse of official power. The report also said high crimes and misdemeanors “had no roots in the ordinary criminal law,” and that misconduct in that area didn’t have to involve a criminal statute.
Going even further back to the Federalist Papers, Alexander Hamilton wrote that impeachable offenses stem from “the abuse or violation of some public trust.” Frank O. Bowman III, a professor at the University of Missouri School of Law, wrote in The Atlantic in October that “one point on which the founding generation would have been clear was that ‘high Crimes and Misdemeanors’ was not restricted to indictable crimes. Their understanding has been ratified by two centuries of American practice.”
Is Trump’s action toward Ukraine a “non-crime”?
Trump’s abuse-of-power charge alleges the president used his office for personal gain by asking Ukraine to announce investigations into former Vice President Joe Biden and a debunked conspiracy theory that Ukraine interfered in the 2016 election. Meanwhile, Trump ordered $391 million in military aid to Ukraine to be withheld. That aid, which was meant to defend Ukraine against Russia, and a White House meeting with Ukraine President Volodymyr Zelensky were both contingent on Ukraine announcing the investigations.
In his appearance on Face the Nation, Cornyn emphasized that the investigations didn’t occur and that the United States eventually gave the aid to Ukraine. However, one government agency determined that withholding the funding did amount to a crime.
Last week, the Government Accountability Office (GAO), Congress’ nonpartisan watchdog arm, released a report concluding that the Office of Management and Budget violated the Impoundment Control Act by denying Ukraine the funds. The Impoundment Control Act does not allow funds to be withheld for policy reasons, as happened with Ukraine’s military assistance before it was eventually given to the country.
So, the decision to withhold funding does constitute a crime, according to the GAO.
Our final verdict
Abuse of power isn’t a federal crime, but articles of impeachment don’t actually have to be tied to the criminal code or a particular statute. Historically, most impeachment articles didn’t list a violation of a specific criminal statute.
Abuse of power also isn’t listed in the Constitution as a specific high crime or misdemeanor, but that phrase has been open-ended since its inception in 14th century British law. Abuse of power appeared as a charge in previous impeachment proceedings.
Although articles of impeachment don’t have to be tied to a specific crime or criminal code, it’s still inaccurate to say that Trump’s action toward Ukraine is a “non-crime.” A recent GAO report determined that withholding funds from Ukraine broke a federal law focused on appropriations.
Contact Big If True editor Mollie Bryant at 405-990-0988 or bryant@bigiftrue.org. Follow her on Facebook and Twitter.
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