IN FOCUS – Impeaching a President for Crimes Committed in a Previous Office

When running for President in 2020, candidate Biden assured voters that there was “an absolute wall between the personal and private, and the government” and “that is why I have never talked with my son or brother, or anyone else in the distant family about their interests, period.”  Well, it appears that may not be true.  It seems as if every day new information comes to light about how President Biden may have abused his powers during his eight years as Vice President from January 20, 2009 to January 20, 2017.

The FBI and the Department of Justice certainly did nothing to unearth these activities while Obama was president, or even while Trump was President.  Indeed, these two federal agencies seem to have spent a great deal of time working to cover up Biden activities.  Meanwhile, while Nancy Pelosi was Speaker of the House until January 20 of this year, the House of Representatives had no interest in pursuing impeachment of Biden.  Only now are the details of the Biden family’s worldwide activities coming out — six and one-half years after Joseph Robinette Biden, Jr. left office as Vice President.

Let’s put aside for a moment all the reasons that House Republicans might want to impeach President Biden for “high Crimes and Misdemeanors” committed while President.  What if the House Republicans wanted to impeach Biden also (or only) for what he did as Vice President.  Could they?  Harvard Law professor emeritus Alan Dershowitz answers that important question:  “No one knows.”  Although the history of impeachments in this country is certainly not clear, the better answer to that question appears to be — Yes, they could.

That was the view of President John Quincy Adams, who believed that an official could be impeached for crimes committed in any public office, at any time for the remainder of his life.  “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office,” he stated on the floor of the House while serving there after he had left the Presidency. (III Deschler’s Precedents of the House of Representatives 648 (1977).)

The three previous Presidents to be impeached — Andrew Johnson, Bill Clinton, and Donald Trump — were all impeached specifically for allegations of actions occurring during their presidency.  However, the issue has come up during the impeachment of other federal officials where at least some of the approved articles of impeachment involved conduct before the official assumed his current position.

In 1826, it was alleged that Vice President John C. Calhoun might have committed impeachable offenses in his prior position as Secretary of War.  A House select committee investigated and recommended that no action be taken, and none was. (J. Cole and T. Garvey, “Impeachment and Removal,” Congressional Research Service, at 15.)

In 1873, it was alleged that Vice President Schuyler Colfax might have been involved in a bribery scandal while Speaker of the House prior to his election as Vice President.  The House Judiciary Committee considered the allegations, and a majority of the committee recommended against pursuing impeachment, arguing that the punishment was “remedial,” and not “punitive.”  The committee report was briefly debated in the House, but no action was taken.  That 1873 committee’s report noted that, “in all cases of impeachment or attempted impeachment under our Constitution there is no instance where the accusation was not in regard to an act done or omitted to be done while the officer was in office.”  (III Hinds’ Precedents of the House of Representatives, §2509-2510 (1907).)

However, after the turn of the 20th Century and up to the present, it appears that thinking about the grounds for impeachment changed.  There are at least two clear cases where the House impeached for conduct occurring prior to beginning in the office the office holder was serving when impeached.

In 1913, Judge Robert W. Archbald was convicted on five articles of impeachment.  Although four of the articles had to do with conduct in his then-current role as a Court of Appeals judge, one had to do entirely with conduct committed in a prior position as a U.S. district judge.

Quite recently, in 2010, Judge G. Thomas Porteous was impeached and removed from office for conduct that included the period before he became a federal judge — during the application process for the judgeship, and during his previous service as a state court judge.  (J. Cole and T. Garvey, “Impeachment and Removal,” Congressional Research Service, at 15.)

Based on the limited number of impeachments where the issue has arisen, there is no absolutely certain answer.  But impeachment is not a legal process — it is a political process.  If the House chooses to impeach, no court can stop it.  If the Senate chooses to convict, no court can stop it.  The two impeachments of President Trump certainly broke new ground in a number of ways.  Those politicians who supported impeachment of Trump for almost no reason whatsoever now resist impeachment of Biden for what appear to be compelling reasons.  With at least two solid precedents for impeachment for prior conduct, if Biden were impeached, those offenses committed by him during his term as Vice President certainly should be included in the Bill of Impeachment and put before the Senate for trial.