We’ve been hearing for weeks now a claim that I’m sure will come up in President Trump’s impeachment defense: that he committed no crimes, he was just exercising the powers of his office. Alan Dershowitz, for one, argues that at least criminal-ish behavior is necessary for removal from office.
This view is certainly at odds with the founders, who viewed the misuse of power, even under color of law, as grounds for abolishing an entire government. The Declaration of Independence lists 27 grievances. Let’s look at Grievance #4:
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
Jefferson does not deny that that George has the authority to name the place for legislative bodies to meet. There was no law against naming inconvenient places, so that wasn’t a crime. Jefferson is accusing George of abusing a power that he legally possesses.
Of the 27 grievances, most involve actions that would be proper in other circumstances. None of them met Dershowitz’s rubric of being tantamount to bribery or treason.
It was the intent of George’s actions that warranted his removal ,“pursuing invariably the same Object,” namely the extension of royal power at the expense of legislative power. They were not “criminal” acts in the sense that they violated some specific law, but they undermined the rule of law itself. Since there was no legal mechanism for removing a monarch for abusing his powers, the Continental Congress had no alternative but revolution. Impeachment corrects this deficiency in Britain’s unwritten constitution. It is a constitutional remedy for abuse of power. Alexander Hamilton confirms this in Federalist Paper #65, where he discusses the Senate’s power to try impeachments:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Note carefully what Hamilton says here: abuse of a public trust is sufficient grounds for impeachment.