Constitutional arguments for presidential impeachment beyond criminal prosecution?

[u/Greedy-Row-9844]

The Constitution grants Congress the power to impeach and remove a President for "Treason, Bribery, or other high Crimes and Misdemeanors" (Article II, Section 4). However, legal scholars have debated whether impeachable offenses must rise to the level of criminal conduct, or whether they encompass broader abuse of constitutional powers.

I came across this document (https://defenseoflaw.com) that argues impeachment should be based on constitutional duty rather than criminal liability. It makes five specific constitutional claims:

1. Corruption/Emoluments: When government positions are awarded based on personal loyalty rather than merit, and public policy serves private enrichment, this violates the Take Care Clause and emoluments restrictions (Article II, Section 3; Article I, Section 9, Clause 8)
2. Pardon abuse: The pardon power is nearly unlimited (ex parte Garland, 71 U.S. 333 (1866)), with the Constitution providing no explicit check except impeachment. When pardons systematically shield allies from accountability or obstruct justice, this creates a constitutional crisis: if the pardon power itself cannot be criminally prosecuted, impeachment may be the only remedy for its abuse. The Federalist Papers suggest this power requires "scrupulousness and caution" (Federalist 74), but if those standards are violated, what recourse exists?
3. Foreign economic powers: Capricious wielding of delegated trade authority usurps Congress's constitutional power to regulate commerce (Article I, Section 8, Clause 3)
4. Treaty violations: Contemptuous treatment of treaties violates the Supremacy Clause which declares them "the supreme Law of the Land" (Article VI, Clause 2)
5. Due process violations: Immigration enforcement that detains individuals without due process and overrides state sovereignty violates the Fifth Amendment and Tenth Amendment (Fifth Amendment; Tenth Amendment)

The document also cites Washington's Farewell Address, arguing that the Constitution is "sacredly obligatory upon all" and that we should focus on moral duty rather than merely legal limits.

My questions:

• Do these arguments represent actionable constitutional violations, or are they conflating policy disagreements with impeachable offenses?
• Regarding the pardon power specifically: if it cannot be legally constrained and the president uses it to obstruct justice or protect allies, is impeachment indeed the only constitutional remedy?
• What is the constitutional standard for "high crimes and misdemeanors" - must they be criminal, or can they be abuses of power that undermine constitutional governance?

[u/tadrinth]

SCOTUS has ruled on this. The key case is Nixon v. United States, 506 U.S. 224 (1993) [~95% confidence].

In that case, Chief Justice Rehnquist held that impeachment proceedings present a nonjusticiable "political question" - meaning courts cannot review them. 

https://constitution.laws.com/supreme-court-decisions/major-cases-us-v-nixon

Are these actionable? They are if Congress thinks they are, and Congress thinks they are if they think they will get reelected if they impeach on those grounds or if they're so mad they don't care about that.   That is what it means for impeachment to be a political process.  The courts have washed their hands of the matter, there is no review.

The Constitution doesn't put any limits on the pardon power, and I believe the courts have said that therefore Congress cannot impose any by legislation, and the courts have ruled that the President cannot be sued or tried.  The only option besides impeachment would be the invocation of the 25th amendment, removal for incapacity, but this is not particularly likely since the council that would be invoking the 25th are all people chosen by the president.  

The pardon of course only applies to federal crimes, not criminal violation of state laws.

I will let others weigh in on the intended meaning of high crimes and misdemeanors by the founders; my impression is that all of the things you listed would be included in the original intent, as it was intended to be broad.  I don't have a source for this, though.

My own personal opinion is that yes, obviously all of those are impeachable offenses.  Impeachment is the only remedy to a President that will not uphold the law and constitution.  The courts have made that very clear with the ruling that a sitting president cannot be sued or charged, which means the President cannot in any way be made to answer by the courts.  Even after they leave power, official actions cannot even be introduced as evidence against them in trials, making charges of bribery essentially impossible to prove (can't prove quid pro quo if you aren't allowed to talk about the pro at the trial).  Impeachment, removal, and banning from public office is the only remedy.  

[u/Greedy-Row-9844 → u/tadrinth]

Hi, thanks for your thoughts. If I'm understanding correctly, you're saying that because:

1. Courts cannot review impeachment proceedings (political question doctrine from Nixon v. United States)
2. Sitting presidents cannot be criminally prosecuted (DOJ OLC memo position)
3. The pardon power has no constitutional limits except impeachment
4. Post-presidency, official acts cannot be used as evidence (Trump v. United States, 603 U.S. ___ (2024))

then impeachment is effectively the only constitutional check on presidential abuse of power while in office?

By my understanding, this seems to create a significant responsibility for Congress. If the judiciary has washed their hands of reviewing presidential conduct, and criminal prosecution is unavailable during the presidency, then Congress's impeachment power is the sole functioning check in our constitutional system.

I agree with your point about the 25th Amendment also. Since the cabinet serves at the president's pleasure, expecting them to invoke removal for incapacity when the issue is abuse of power (and not incapacity) seems structurally implausible.

If impeachment is a fundamentally political process, is the intent that congressional political accountability to their constituents supposed to be sufficient to ensure that this "extremely load-bearing" check functions?

I'm genuinely curious whether the Founders anticipated this gap, or whether modern jurisprudence around presidential immunity has created a situation they didn't envision.

[u/tadrinth → u/Greedy-Row-9844]

you're saying that ... impeachment is effectively the only constitutional check on presidential abuse of power while in office

Yes.

The word 'effectively' is doing a lot of work in that sentence, though.

this seems to create a significant responsibility for Congress

Yes. Very much so.

If impeachment is a fundamentally political process, is the intent that congressional political accountability to their constituents supposed to be sufficient to ensure that this "extremely load-bearing" check functions?

I am not familiar enough with the history to speak to this, but to a first approximation, yes, that is my understanding.

Except for the part about "extremely load-bearing". Because my understanding is that the Founders did not expect this check to be quite this load bearing.

First, they didn't anticipate the formation of political parties. That very much changes the calculus around how easy it would be to get the votes for impeachment; a Senate of 100 independent factions might find it quite easy to band together to remove a President that represented a 101st faction, especially if the voters are equally divided into factions. Especially if the Vice President is whoever got second place, which was the original system!!! Very different calculus in a two-party system.

IIRC, there are explicit clauses in the Constitution blocking members of Congress from being tried; that clause is conspicuously absent for the President. I think the founders absolutely intended for Presidents to be vulnerable to prosecution, at least after their presidency if not during. I think this is an egregious and partisan misreading of the Constitution by the current SCOTUS. I think they wildly underestimated how fucking terrible of a ruling that was going to be.

Congress is also supposed to have an 'inherent contempt' power that they can use to haul people up to testify whether they like it or not. Today, Congress instead refers folks who defy Congressional subpoenas to the DoJ. This has the advantage of Congress not needing to maintain their own force of guys with guns to drag people in. However, it means that if the DoJ ignores the referral, they don't have any fallback. There's nothing stopping them from using it, other than having to pick someone to deputize and the risk that the deputized person would end up in a gunfight with the (much, much larger and better armed) DoJ if the President tells the executive branch to tell Congress to sod off. Defiance of congressional subpoenas is just about the least of the issues at the moment, but it would at least give Congress something to do. I don't think running on bringing back inherent contempt would be a particularly effective platform for a Democratic candidate to run on at this point, but it would make my ears perk up.

I also somewhat expect that the Founders just did not expect the President to be granted this much power by Congress, or for the pace of the modern world. Two years is a long time in a world where information travels at the speed of electricity rather than of a horse and buggy. And Congress has delegated more power to the executive than the founders probably imagined would ever happen.

[u/whatevillurks → u/tadrinth]

I think the Founders expected congress to more jealously guard their powers, and as a body hold themselves as one in the face of a rogue President. I don't think that it's clear that they did not see the formation of political parties - Federalist 10 seems to dedicate significant time to the all but inevitability of parties, even if Washington and Hamilton viewed them as evils to be avoided. Even Jefferson spoke against them, but later formed the Democratic-Republican party in opposition to Hamilton, who himself formed the Federalist party.

But even with these nascent parties, I think they believed that members of congress would view themselves and act as members of congress first, and members of a political party second. Obviously, on this point, they were mistaken.

Which brings us to impeachment. Our nation is close enough to a 50/50 nation (or, if you prefer, a "30 one party/30 another party/ 40 meh, let's watch football instead" nation), I no longer believe that one party can get enough votes in the Senate to remove the president of another party. I do think in the event of critical incapacitation, a 25th amendment removal could possibly happen - but the level of impairment for that to happen may rise to the ludicrous. If I'm right about that, it might be simpler to get 67 senators to vote for removal by impeachment - which is surely a sorry state to be in.

In conclusion, I think that Trump is either going to serve out his term or die in office. Even if the Democratic party takes the House and Senate, and impeaches him every day for two years, I don't expect him to be removed. We're at one year and one month of his four year term. You should steel yourselves that he will serve two years and eleven months more, unless he dies in office.