Justice  /  Explainer

When Is an Offense Impeachable? Look to the Framers for the Answer

Delegates to the constitutional convention were especially concerned about corrupt conduct used to gain the presidency.
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There are more serious crimes than violating campaign finance laws. Some offenders face jail time, while others catch a break.

But the campaign finance violation President Trump’s former lawyer accused him of on Tuesday — arranging to pay hush money to influence an election — may nonetheless be precisely the sort of offense that the drafters of the Constitution meant to cover in granting Congress the power to impeach and remove a president.

“At the constitutional convention, the framers repeatedly expressed anxiety about the president seeking to obtain office through corrupt means,” said Joshua Matz, an author of “To End a Presidency: The Power of Impeachment.”

“In fact,” he said, “that was one of the principal reasons they included an impeachment power in the first place.”

Mr. Trump is unlikely to face criminal prosecution while he is in office, as the Justice Department’s longstanding policy and something approaching a scholarly consensus say that the Constitution does not permit criminal proceedings against a sitting president. And political realities will probably protect him from impeachment proceedings, at least as long as Republicans control the House of Representatives.

But legal scholars said that committing crimes aimed at undermining the integrity of an election could well satisfy the constitutional standard for impeachment, which is set out in Article II, Section 4: “The president, vice president and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors.”

When the framers met in Philadelphia in 1787, they singled out one offense in particular as worthy of impeachment: a candidate’s interference with the Electoral College.

“If the president bribes members of the Electoral College in order to obtain office, it was clear from the debates that that was thought to be an impeachable offense,” said Cass R. Sunstein, a law professor at Harvard and the author of “Impeachment: A Citizen’s Guide.”

“That’s an exception to the general proposition that it has to be abuse of the authority you have by virtue of being president,” he said. “It was an effort to protect the sanctity — and I think sanctity is the right word — of the process by which someone becomes president.”