Is Fraud an Impeachable Offense?

The fraud litigation currently pending against Donald Trump poses this question:  Is a civil judgment of fraud for private conduct a high crime and misdemeanor under the Constitution?  My tentative answer is yes, if the fraud were especially egregious.

One thought is that the answer is no because only official misconduct should lead to impeachment.  But this cannot be correct.  Consider the example of Dennis Hastert.  Suppose he had become President.  (He was third-in-line to the succession after all.)  If after that the news of his sexual abuse of students came out, then I would think that he could have been impeached for that alone.

Perhaps the only private conduct that can lead to impeachment is a crime. But I think not. Civil liability for something like wrongful death could be impeachable–consider something like what Ted Kennedy did at Chappaquiddick (if that were unknown to the voters). Fraud is an intentional tort that requires proof by clear and convincing evidence.  If the damages from that fraud were substantial (including punitive damages), then I don’t see why that couldn’t rise to such a level that would warrant impeachment.   What do you think?

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11 Responses

  1. Joe says:

    I don’t think “official” conduct alone can be the test — e.g., I think Burr could have been impeached for killing Hamilton in an illegal, but private, duel. Or, more current, if someone “privately” rapes someone, it should be impeachment-worthy.

    The concern is more the timing of the conduct. If it is determined, e.g., a person committed a crime 10 years ago and it’s fairly serious, but the statute of limitations has passed, should it be impeachment worthy? Trump’s alleged fraud here occurred in the past.

    Overall, I think there is a broad understanding the impeachment can cover particularly egregious acts that are not a violation of statutory law. “High crime or misdemeanor” are loose terms; in the beginning, there was also a lot less law on the books.

  2. Brett Bellmore says:

    I’d have to say, yes. Any act, illegal or not, that proves someone unfit for office in the opinion of Congress is a proper cause for impeachment. Perjury and obstruction of justice, (Even in the context of a sexual harassment trial.) thousands of violations of 18 U.S. Code § 793 , and even civil fraud.

    If Congress thinks it proves you’re not a fit holder of the office, they can remove you from it.

  3. Joe says:

    ” Any act, illegal or not, that proves someone unfit for office in the opinion of Congress is a proper cause for impeachment. ”

    Vetoed legislation they deemed necessary. Doesn’t respect the needs of the country. Not fit? At some point, this sounds more like a vote of “no confidence” than a limited impeachment power based on words that sound like some sort of “wrong” is involved.

    • Brett Bellmore says:

      It is as much a vote of no confidence, as removal for committing a wrong. Impeachment is orthogonal to criminal law: It carries no legal penalty, (Just removal for office, and disqualification for future office.) and doesn’t count as a legal action for purposes of double jeopardy.

      • Joe says:

        Yes, that’s the point — the language suggests “a wrong” … not anyone for any number of reasons that is “unfit,” which sounds more like a vote of “no confidence.” That is a thing. Just isn’t a thing that sounds appropriate for OUR constitutional language. The “orthogonal” point doesn’t change that so it doesn’t really add anything to the point.

  4. Curmudgeonly Ex-Clerk says:

    I tentatively think private conduct–even the egregious examples provided in the post–should not be a basis for impeachment (as opposed to disgrace and resignation, or barring that being voted out in the next election). The text is: “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.” Art. II, Sec. 4. I am open to some education on what the Founders meant by the terse phrase “high crimes and misdemeanors,” but I don’t think it is obvious based on the context that we should understand it to embrace wrongs having no relation to public office. Treason is disqualifying in an obvious way, and bribery directly relates to how the public office is being wielded. Absent some contrary evidence, it seems like “other high crimes and misdemeanors” ought to be interpreted in a way that truly makes them “other”–i.e., of like nature as the two specifically enumerated bases for impeachment.

  5. arthur says:

    President Clinton was impeached for perjury and obstruction of justice in the Jones case, which doesn’t really fit within the category of “official misconduct .”

    I would argue that “high crimes and misdemeanors” limits impeachment to actual crimes–but fraud is a crime. There is certainly no requirement that a president be indicted or prosecuted before impeachment occurs, as that didn’t happen in any of the three presidential impeachments (Johnson, Nixon, and Clinton).

    • Brett Bellmore says:

      Actually, it was official misconduct; he had people on the government payroll assisting in his obstruction of justice.

    • Curmudgeonly Ex-Clerk says:

      True enough. I’m inclined to think that Clinton’s impeachment was wrong though. As loathsome as his conduct was, I don’t think it was impeachment-worthy. (Frankly, I wish Jones v. Clinton had gone the other way and halted that circus until he was out of office.)

      • Brett Bellmore says:

        I tend to think that it was the one case where the effort to obstruct justice was unsuccessful. One dry cleaning and Democrats would claim he was innocent of that one, too.

        Remarkable how he knew he could count on his staff to assist in destroying evidence and drafting perjurous depositions… Like they’d been through it before, and were a well oiled justice obstructing machine.

  6. Jordan says:

    Facilitation of war crimes would fit, but. Alberto is no longer in office, just advising the public regarding judicial/legal ethics and Trump’s “Mexican” judge.