Of the 11 articles of impeachment returned against President Andrew Johnson in 1868, nine involved technically criminal violations of the Tenure of Office Act, but the last and most significant two articles alleged general abuses of presidential authority. Johnson escaped conviction in the Senate by one vote, but no serious historian contends that his acquittal rested on the absence of an indictable crime.
Finally, and most pertinently, the House Judiciary Committee approved three articles of impeachment against Richard Nixon: the first for obstruction of justice, the second for abuse of power, and the third for defying House subpoenas during its impeachment investigation. Article 3 obviously did not allege a crime. But even in the first two articles, which did involve some potentially criminal conduct, the committee was at pains to avoid any reference to criminal statutes. Rather, as the committee staff observed in its careful study of the question, “high Crimes and Misdemeanors” is a phrase that reaches far beyond crimes to embrace “exceeding the powers of the office in derogation of those of another branch of government,” “behaving in a manner grossly incompatible with the proper function of the office,” and “employing the power of the office for an improper purpose or personal gain.”
In the end, the best argument against the claim that impeachment requires criminality is not the overwhelming weight of contrary history and precedent, but the sheer dangerous absurdity of the proposition.
The British Parliament invented impeachment and the American Framers poached the institution as a means of saving their respective constitutions from tyranny or catastrophic mismanagement by hereditary, appointed, or elected rulers. It would be daft—and the Framers were not daft—to hobble this “indispensable remedy” by confining it within the idiosyncratic limits of the statutory criminal law available at any given point in time.
Both action and inaction by the chief magistrate, if sufficiently dangerous to the republic, must be impeachable if impeachment is to serve its intended purpose. Even conduct motivated by a sincere and deeply held principle can be a constitutional “high Crime.”
Ben Butler made precisely this point during the Johnson impeachment. Suppose, he imagined, that in 1861, when secession fever broke out, the president had been not Abraham Lincoln, but a man who, whether moved by fear or “an honest, but perverted political theory,” refused to mobilize the Union against the rebellion. Would we say the only remedy in such a case was to allow dissolution of the country because the president’s inaction was no crime?
Or suppose that the nation’s highest court decided Brown v. Board of Education and ordered the desegregation of American schools, and the president ordered out federal troops, not to enforce the order, but to suppress protests by black citizens who sought to take advantage of the order by enrolling in previously segregated schools. Would such defiance of both a co-equal branch and the dictates of common humanity be unimpeachable because it was noncriminal?