Some law faculty talk about impeachment as requiring the commission of a crime, with the problem being exactly which crimes might serve as the grounds for impeachment. Blackmon, for example, reject the idea that there should be any basis other than violation of the criminal code (and only some select part of the criminal code) as grounds for impeachment. His concern is that impeachment based on abuse of power fails to give notice to the President of what might be an impeachable offense, and unduly politicizes impeachment. The latter argument is, I think, disposed of by Mark Graber. Graber argues that much of the history of impeachment proceedings (at least for political offices) was long ago fully politicized. The votes in the House and Senate regarding Jackson, Nixon, Clinton were highly partisan. That is not changing. The process, like almost everything about the Constitution has tenuous connection to the conception of the Constitution and its processes when it was adopted. Politics is there to stay.
Blackmon's argument is that impeachment should be grounded in the criminal law so that the President has adequate notice of what conduct may be impeachable misconduct. That seems to me a somewhat odd approach to impeachment. Two suggestions: the criminal law approach advocated by Blackmon means that he thinks that impeachment is improper (and inappropriate to consider) when a President does any of the following sorts of things, none of which are (I think) crimes: directs the FBI to investigate a political opponent; not to enforce particular laws or not to enforce laws which may benefit or protect some group or person out of favor; redirect funds intended for the welfare or education of a particular state to other uses, depriving the state of those funds, refusing to declare emergencies in states dominated by political opponents; directing the IRS not to investigate or prosecute friends or allies; impound the passports of disfavored persons; refuse to enforce environmental or health standards; directs the Justice Department never to investigate her or himself or family; and so on. That such conduct might violate some statute does not make it a crime. Why would conduct of this sort not be enough for impeachment? I see nothing in Blackmon, or Turley, or their colleagues that explains why perjury in a private lawsuit is impeachable but massive abuse such as the preceding is not. Blackmon says that there is not enough or clear enough notice. I find that deployment a little disingenuous. I have a test for such arguments. Is there less here than would satisfy an indictment for distribution of illegal drugs, or less than would satisfy for asset seizures? No. What is at work is that as social standing rises, so does the standard for enforcement, a tendency I do not care for. Or, to engage more directly, the idea that an impeachment based on abuse of authority would strike out of the blue is hard to believe. That the President would feel inhibited and frightened to act because he or she might be impeached for abuse of authority is, in a word, ridiculous. There is no evidence at all for such a view.
Imagine what takes little imagination - an executive fully devoted to a strong unitary executive theory (in which the President controls all executive activities exclusively) along with a strong departmentalism so that the executive may act on its own views of the Constitution along with a particularist theory of standing and remedies so that each remedy in a lawsuit must be for just the individual plaintiff (so no nationwide class actions, no nationwide injunctions). Blackmon and Turley would leave us with nothing in such circumstances but to wait for the expiration of the tyrant.
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