Abuse of Power is a Crime

Listening to the opening arguments of lawyers defending Donald Trump in the ongoing impeachment trial, it became clear that much of the president's attorneys' defense hinges on semantics. Alan Dershowitz, for example, citing precedents from the impeachment trial of Andrew Johnson, argued that a president could only be impeached for "crime-like behavior," and since "abuse of power" is not a statutory crime, it does not meet the constitutional criteria for removal of a duly elected president. This arguments fails for the simple reason that, by any reasonable understanding, abuse of power is a crime. Indeed, it is the most basic crime that might justify the impeachment of a president, if we follow the clear logic of the constitution itself.

While the constitution does demand that the president be removed only on commission of "high crimes," the claim that, in the case of the president, such infractions can only be recognized by consulting the current federal criminal code is absurd. It remains a point of controversy, 222 years after the adoption of the US constitution, whether the president is subject to criminal indictment at all (current Justice Department directives say "no"). Since the criminal code does not regularly apply to the president, it is foolish to expect that it would outline every infraction of which the office was capable. Why would Congress pass a law that cannot be adjudicated?

This reality is acknowledged by the impeachment process itself. If the crimes for which impeachment was legitimate could be found in the criminal code, the power of impeachment would be invested in the courts. Because the crimes for which impeachment is warranted constitute a special class of infraction, the process is entrusted to the legislature.

If the crimes for which the president can be impeached are not violations of the criminal code, what body of law regulates such infractions? The answer is quite simple: the Constitution of the United States itself. The constitution is, by its own account, "the supreme law of the land." When a president is impeached, he is fundamentally being accused of crimes against the constitution. Since all of the President's power is invested in him by the constitution (as Article II, Section 1 declares: "The executive Power shall be vested in a President of the United States of America")  and the oath he took to uphold the same, "abuse of power" is the most basic crime for which he may be impeached.