With the big impeachment circus now going on in the House of Representatives, perhaps you have begun to wonder, what is the alleged crime? I know that I have. Should anybody care about that?

There is a very good reason to care. The Constitution specifies the potential grounds for impeachment: “Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4). Treason is a crime. Bribery is a crime. “High crimes” are obviously crimes. “Misdemeanors” (probably, the better reading is “high Misdemeanors”) are also crimes. So all the possible categories of impeachable offenses specified by the Constitution are crimes. To meet the Constitutional test, you have to have a crime.

As you probably know, the only crimes in our system are those that have been specifically defined in a statute passed by Congress (for a federal crime) or a state legislature (for a state crime). There is no such thing as a criminal prosecution against someone just because what he did seems really, really bad. There must be a criminal statute that was violated. Treason? That is defined and prohibited by 18 U.S.C. Section 2381:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years. . . .

Bribery? That’s covered by 18 U.S.C. Section 201. It’s long, but here’s an excerpt:

Whoever— (1) directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—(A) to influence any official act; . . . shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both . . .

If you ever should peruse a federal indictment, you will without exception find that the particular criminal statute alleged to be violated is always named, with a citation to the numbered provision of the U.S. Code.

In both the Nixon and Clinton impeachments, they seemed to take seriously this requirement of a crime as the necessary predicate. Admittedly, neither of the two documents cites U.S. Code sections the way an indictment normally would. On the other hand, the large majority of the allegations of wrongdoing closely track the contours of well-known crimes defined in the Code.

Here are the Nixon Articles of Impeachment, from 1974. Let’s consider the first several items from Article I:

making false or misleading statements to lawfully authorized investigative officers and employees of the United States;

That would be a violation of 18 U.S.C. Section 1001 (“[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully . . . (2) makes any materially false, fictitious, or fraudulent statement or representation; . . . shall be fined under this title, imprisoned not more than 5 years. . . .”)

2. withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;

That would be a violation of 18 U.S.C. Section 1519 (“Whoever knowingly . . . conceals, covers up, . . . with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States . . . shall be fined under this title, imprisoned not more than 20 years. . . .”)

3. approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;

This time it’s 18 U.S.C. Section 1622 (“Whoever procures another to commit any perjury is guilty of subornation of perjury, and shall be fined under this title or imprisoned not more than five years, or both.”)

And so forth. Or consider the Clinton Articles of Impeachment from 1998. This time the principal alleged wrongdoing is giving false testimony under oath, unquestionably the crime of perjury. From Article I of that document:

On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following. . . .

Here the applicable criminal statute is 18 U.S.C. Section 1621 (“Whoever— (1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify. . . that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; . . . is guilty of perjury and shall . . . be fined under this title or imprisoned not more than five years, or both.”)

I will now admit that the Articles of Impeachment in 1868 for President Andrew Johnson did not allege a crime. There, the principal alleged wrongdoing was the firing of Secretary of War Edwin Stanton, in violation of a statute that had just been passed by Congress called the Tenure of Office Act, which prohibited (but not with criminal penalties) the firing of cabinet officers without the consent of the Senate. Johnson was acquitted (one vote short of required two-thirds majority to convict).

Many (for example Adam Levinson here) have argued that the Johnson acquittal stands as precedent for the proposition that anything not a crime is not an impeachable offense. That may be too strong a statement. There aren’t really enough instances of impeachments, let alone court rulings on contested issues, to stand as meaningful legal precedent. To me, it is more significant that every basis specified by the Constitution requires a crime, and in 230 years, Congress has never removed a President from office in the absence of alleging a crime, and in the two recent cases has at least paid strong lip service to the need to allege a crime in accordance with the constitutional text.

Anyway, here we are in the midst of impeachment mania, and we have completely lost track of the whole idea that there might be a need for an actual crime. I’ve spent some quality time here this afternoon trying to find some intelligent promoter of impeachment who has even ventured a plausible attempt to specify what criminal statute is alleged to have been violated. No success. What I have found instead are various people arguing that no crime is necessary for impeachment. For example, here is Elizabeth Drew at USA Today on October 28, “You don't have to break a law to be impeached”:

The tactics some Republicans are using to defend President Donald Trump against being impeached (or indicted) by the House and convicted (or removed from office) by the Senate include confusing the public about what these terms mean. One thrust is to suggest that for a president to be impeached, he must have committed a crime. . . . Graham’s definition of impeachment as necessarily involving a crime goes against the history of the Constitution's impeachment clause and undermines the very point of the exercise, which is to hold a president accountable for abuses of power between elections.

What about the text of the Constitution, Elizabeth? And another point: If the test is “abuse of power,” there is always plenty of basis for political opponents to accuse any President of that. To make alleged “abuse of power” the test is to make it so that any Congress in the hands of the opposite party from the President can always remove the President and undo the results of an election they don’t like. Whoever goes down this road is not going to like it when the shoe is on the other foot.

I have spent some time looking through the federal criminal code (Title 18) and can’t find anything that I think is applicable. Can you? Among those who have come to the same conclusion that I have is Alan Dershowitz. From an interview with Stuart Varney on November 11:

Take the worst, worst, worst-case scenario — the president abused his foreign policy power to gain political advantage. How many presidents have done that over time? It's not among the listed impeachable offenses. It's not a crime. . . . It's not any kind of a crime. It may be a political sin — that's a good reason for deciding who to vote for — but it's not a good reason for removing a duly-elected president.

And meanwhile, the Bidens are stone cold crooked and need to be investigated. The people trying to get Trump for saying so are becoming complicit in obvious thievery at the highest levels of the Obama/Biden administration.