Who Needs Crimes?

Either Lindsey Graham was wrong in 1998, or he is wrong today.

David MacMillan
Dec 29, 2019 · 5 min read

When I laid out the overview of Trump’s actions with respect to Ukraine in my November 26 article “The President is Not a Crook”, I wanted to provide a detailed timeline of the undisputed facts. With so much obfuscation and confusion about the basic elements of the case, it seemed important to have things presented things out in a clear way, without unwarranted speculation.


The piece has received broadly positive response. Some, however, have questioned not the facts surrounding Trump’s actions, but the propriety of the House Democrats in going through with impeachment. I’ve already written about Speaker Pelosi’s anticipated strategy going into the Senate trial, but the question of the impeachment’s legitimacy remains important, particularly with the abundance of Senate and House Republicans insisting that the impeachment is “phony” or otherwise meaningless.

One reader, upset by the whole process, argued that impeachment without a definite crime was illegitimate and smacked of the British parliamentary system. Robert Jeffrey Schundler writes:

It may come as a shock, but our Founders never intended the people to pick the President. The Electoral College was designed so that no candidate would ever receive a majority of the votes, and so the House of Representatives would pick every President and Vice President from among a handful of candidates receiving Electoral College votes. The two-party system which emerged, however, meant that all the votes are generally split between just two candidates nominated by entrenched political institutions, meaning that one candidate will receive a majority of votes and thus bypass the House…something that was never the Founders’ intent.

Of course, this is about how a president is elected, not how a president is removed. The balance of powers in our constitutional republic is like a federal game of rock-paper-scissors. The Executive Branch appoints members of the Judiciary Branch and determines which Legislative actions it wants to enforce. The Legislative Branch provides statutory direction to both the Executive and Judiciary and has the sole power to remove members of either the Executive or the Judiciary in instances of misconduct. The Judiciary has the final authority to weigh the acts of both other branches against the Constitution. It is a careful balance to ensure that no one branch may seize absolute power (despite Trump’s attempts to do exactly that).

Funny, but this is entirely at odds with what now-South Carolina Senator Lindsey Graham said twenty years ago. I distinctly remember him saying something about how a crime was not necessarily a prerequisite for impeachment:

Of course, you don’t need to agree with Lindsey. I don’t. You really should have some sort of crime before impeaching any public figure. President Trump has committed crimes, but they are encompassed in abuse of power, one of the same articles of impeachment levied against Bill Clinton. Trump’s criminal abuse of power includes bribery, extortion, violations of campaign law, and treason. The reason they aren’t named and described specifically is that impeachment is a remedy under Constitutional law, not under federal criminal statutes. Congress has the power to determine what constitutes criminal activity in the first place — that is one of its powers under Article I — and that power comes from the Constitution.

Schundler also argues:

I have to take a step back here and be fair. People on the far right really do believe that there is a deep-state conspiracy dedicated to obstructing and impeding Trump. They really do believe that Trump has done nothing wrong, and that every criticism levied against him (even by fellow Republicans) is somehow a disaffected longing for a Clinton presidency. In the face of such disinformation, I can understand why people would draw these kinds of conclusions.

But understanding this nonsense doesn’t mean we have to accept it. Trump has been clouded by criminality long before he took the oath of office on January 20, 2017. His business interests are a conglomeration of criminal mismanagment and outright fraud. He reaps immense profits from undue influence and refuses to divest his assets. He openly called for foreign assistance in the 2016 election, benefited from foreign attacks, and openly committed crimes to impede the investigation into those attacks.

To any impartial observer, Trump’s actions before and after taking office have at least given grounds for investigation. Reasonable minds may differ on which of Trump’s acts would actually warrant impeachment, but it is a fantasy to pretend that he is above reproach. Many have already called for impeachment investigations, not because of “Trump Derangement Syndrome” or irrational hate, but because he’s just so covered in dirt and scandal.


This leads us to yet another objection, one repeated by Bill Rutherford.

One of the most ridiculous lines of argument by Republicans in the House Intelligence and House Judiciary committees came in the different ways they questioned the fact witnesses and the expert witnesses. Repeatedly, Jim Jordan and others badgered the fact witnesses, demanded that they name and describe crimes Trump had committed. Rather than being silent, the fact witnesses repeated Trump’s actions and said it wasn’t their job to decide which things were or weren’t crimes.

Of course, once expert witnesses testified that Trump’s actions did constitute bribery, extortion, high crimes, and misdemeanors, the Republicans didn’t want to hear any of it. Instead, Matt Gaetz demanded that the expert witnesses “raise a hand” if they had personal knowledge of the facts:

So, asking fact witnesses for expert testimony and asking expert witnesses for fact testimony. Seems like a winning approach.


David MacMillan is a freelance writer, paralegal, and law student in Washington, DC. He writes about science, politics, and culture as he finishes his book about his departure from creationist science denial.

David MacMillan

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Anyone with really good ideas will always be looking for better ones. Writing about law, fundamentalism, and science denial…book to follow.

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