Liberal Constitutional Law Prof: 'Violation of Criminal Law' Not Required for Impeachment

One of the nation’s most prominent constitutional law professors emphasized that one of the biggest myths about impeachment is that it “must involve a violation of criminal law.” 

After calling for President Barack Obama’s impeachment on the pages of Breitbart News for his lawlessness on illegal immigration, former Alaska Governor Sarah Palin said that more Americans, many of whom have been led to believe by politicians and the media that only criminal offenses are impeachable, would be in favor of it once they found out what impeachable offenses actually are. 

Writing in the Washington Post, Jonathan Turley, the George Washington University law professor who has “testified in Congress about impeachment and served as lead defense counsel for Judge Thomas Porteous in his Senate impeachment trial,” said that “serious misconduct or a violation of public trust is enough” for impeachment.

“While there’s a high bar for what constitutes grounds for impeachment, an offense does not have to be indictable,” Turley, the liberal law professor, wrote. “Madison saw impeachment as ‘defending the community against the incapacity, negligence or perfidy of the chief magistrate.’ And the founders emphasized that impeachments were about what happened in the political arena: involving ‘political crimes and misdemeanors’ and resulting in ‘political punishments.'”

Turley said that if “the president were to openly defy clear federal authority and order unlawful acts, he would move from the realm of using arguable discretion to that of being a danger to the system as a whole.

Last week, Rep. Paul Ryan (R-WI) said that Obama’s lawlessness on illegal immigration did “not rise to the high crime and misdemeanor level.” Mainstream media bloggers like the Washington Post‘s Aaron Blake declared that Ryan “nailed” the impeachment question. In a CNN poll in which a majority of Republicans and a third of Americans favored impeachment, nearly 80% of Americans thought only “very serious crimes” constituted impeachable offenses. 

But as Andrew McCarthy, the former federal prosecutor and author of Faithless Execution: Building the Political Case for Obama’s Impeachment, recently noted, politicians and reporters–and the public they are supposed to serve–are not aware of what “high crimes and misdemeanors” are for the purposes of impeachment.

“Contrary to some less than informed opinion, ‘high crimes and misdemeanors’ – the legal standard for impeachment – refers not to indictable criminal offenses but to profound breaches of the public trust by high-ranking officials,” McCarthy wrote in National Review. “Once the standard is understood, it becomes easy to see that the president and his underlings have committed numerous, readily provable impeachable offenses.”

Turley has previously said that “Obama is really the president Richard Nixon always wanted to be” because “he’s been allowed to act unilaterally in a way that we’ve fought for decades.”

Impeachment critics have argued about whether it would be smart politics or if the political will is present to impeach Obama. But they have often misunderstood the “high crimes and misdemeanor” standard, as Turley points out. 

Palin has said illegal immigration was the tipping point for her, and more Americans would share her views if Obama grants millions of work permits to illegal immigrant adults–in contravention of federal law–by executive action. And she, along with Rush Limbaugh and Mark Levin, criticized House Speaker John Boehner (R-OH) for declaring that the impeachment option was off the table, even before Obama enacted more executive amnesty. 

Rep. Steve King (R-IA), though, said more Republicans would be “activated,” and Congress would have to consider impeachment, if Obama goes forth with his planned executive amnesty “by the end of summer.” And even though Republicans have called the White House’s impeachment concerns nothing but a fundraising “scam,” White House senior adviser Dan Pfeiffer insisted again on Sunday that it would be “foolish” to discount the threat of impeachment after Obama unilaterally changes the country’s immigration laws.