Michael J. Gerhardt is Samuel Ashe Distinguished Professor in Constitutional Law at the University of North Carolina-Chapel Hill. His books include Impeachment: What Everyone Needs to Know®.From Gerhardt's Q&A with Isaac Chotiner for The New Yorker:
What do you think the post-Mueller debate around Trump and impeachment is capturing or failing to capture about the proper way to think about the subject?--Marshal Zeringue
I think that much of the public debate doesn’t understand impeachment properly. There are arguments made, positions taken, but they’re not really well tailored for the impeachment process.
One of the essential things about impeachment is that it does not have to be based on an actual criminal violation, and it does not have to track the elements in a federal criminal statute or state criminal statute. It’s perfectly well within the power of Congress, in particular the House, to frame impeachment on the basis of things that are not themselves criminal.
A lot of the discourse has been focussing on whether or not whatever the President did is actual criminal misconduct. Yes, a criminal statute violation, like perjury, for example, could be a basis for impeachment, but you don’t need the technical criminal violation. A President lying to the public—that could be a basis for impeachment. Or a President trying to interfere with an investigation. Those things could be understood as abuse of power, and they don’t have to be criminal.
It still seems like there’s a distinction that could be made. You could say that the way the President has behaved about Russia—everything from calling for Hillary Clinton’s e-mails to be hacked to firing James Comey or telling Don McGahn to fire Mueller—rises to the level of impeachment. Or you could say that Donald Trump, more generally, is acting like an immoral person and is lying to the American people. Forget Russia: he should be impeached because he is not fit to be President. Those seem like two different things to me, even though neither of them is necessarily based around a specific crime.
Well, I think you’re right to raise those two things. I think each of those, separately, could be a credible or permissible basis for impeachment. And it could also be argued that, if there were a technical violation of the criminal statute, such as obstruction, that could also be a basis for impeachment. The classic definition of impeachable offense would be a serious abuse of power or...[read on]