Impeachment for Acts Prior to Taking Office?

It may be only an academic question, but one that has been edging  a little closer to the real world: Can the President of the United States can be impeached and convicted for acts committed before Inauguration Day?

The Constitutional provision at issue is Article 2, Section 4:

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.

As a provision for removal from office, there is a fairly natural inference that it is triggered by treason, bribery, or other high crimes and misdemeanors occurring while in office. The phrase “high Crimes and Misdemeanors,” a technical phrase drawn from British Parliamentary history, carries a connotation of official misconduct.  So far as I have been able to determine, all of the 19 cases in which impeachment has been voted in the House have been based exclusively on conduct while in office, although in one case not on official conduct (tax evasion) and in a few cases not exclusively on official conduct (e.g. being drunk on and off the bench.) (Most of these impeachments have been of federal judges.)  Over 60 impeachment attempts have been initiated in the House.  I haven’t been able to determine if any that did not advance to impeachment involved any pre-office conduct. The phrase “or other” at least suggests that even treason and bribery are brought within the misconduct in office connotation of “high Crimes and Misdemeanors.”

This all at least provides the beginnings of an argument that a president may only be impeached for conduct in office. Some commentators have suggested, however, that sufficiently egregious conduct might constitute a separate impeachment category. I am confident that clear evidence of a paradigm case of treason, albeit wholly pre-inaugural, would lead to a vote of impeachment in the House and conviction in the Senate.  Although unprecedented, such a removal would be in no facial conflict with the impeachment clause. Impeachment must in large part be a matter of fitness to hold office, and some out of office conduct shouts unfitness so loudly that it would be in clear a conflict with the purpose of the clause to rule its perpetrator unimpeachable.

Sufficiently substantial collusion in sufficiently egregious means used by a foreign power to affect the outcome of a US election might rise to the strict requirements of the crime of treason. Treason, however, has rarely been prosecuted, and Russia is probably not an "enemy" within the meaning of "adheres to their enemies, giving them aid and comfort" in 18 U.S.C 2381. We have not ever been at war with Russia pursuant to the constitutional declaration of war clause, and we are not currently in even non-war military hostilities with Russia.

There would be many sorts of involvement with Russian interference in the US election that would not count as treason that might yet be grounds for impeachment. That remedy would become more appropriate the more unlawful and the more serious the interference, the greater the degree of collusion of the president’s team, the more closely involved in that collusion the president was personally, and the more clearly implied or understood was a quid pro quo.  

An explicit agreement as to a quid pro quo once in office would, of course, take the conduct out of the purely pre-inaugural category. Even if the president reneged upon the deal, the fact that pay back was still due and owing would be a burden on his presidency of potentially impeachable weight. In fact, any suggestion of quid pro quo, not even rising to the wink-wink level, would extend into the term of office any pre-office collusive culpability. All of the direct evidence may be of pre-inauguration conduct, but a transaction involving a quid pro quo does not come to an end until there is no longer a possibility of payback.

In the event that the degree of complicity and the personal involvement in the complicity fall at some middle level, as seems not unlikely, the question of impeachment will become one of Republican Party politics.  Trump may be a millstone around the GOP neck as the stream of time rounds the bend towards 2018, let alone 2020. Yet the Party would be in terror of igniting the enmity of the core Trump voters, whose loyalty will likely be no more shaken by high treason in the Situation Room than by a shooting in the middle of Fifth Avenue. They would become fierce enemies of what they will see as Brutus-Republicans, and would probably remain so for more than a single election cycle. The best that the party establishment could hope for would be that they would on election day stay home out of disgust.  Republicans might find themselves in the dilemma that they cannot win with Trump and cannot win without the Trump-ests.

In whichever way the Republicans in Congress will jump if they permit a real investigation to take place and that investigation turns up middle level culpability or worse, there will be no appeal and no review.  If he is convicted, Trump cannot go to the Supreme Court, and if he is not impeached or not convicted, those who think this a miscarriage of justice cannot either. The Court will hold the outcome and all related issues non-justiciable as "political questions."  The House is the sole judge of the facts and the law of impeachment as is the Senate of both when it comes to trial.

There is, of course, another way the President can be removed from office. Were he convicted in of any crime and imprisoned, he could be declared “unable to discharge the powers and duties of his office” by the Vice President and Cabinet. This cannot be a conviction in federal court pursuant to the current Justice Department position that a sitting President is not to be indicted. A state court prosecution cannot, however, be ruled out. Were the 25^th Amendment route used following a state incarceration,  The Vice President would then become the Acting President.  This expedient is, of course, also available for medical disability, physical or mental.

Other (newer) posts touching impeachment:

Should President Pence Be Impeached With Vice President Trump in the Wings?
https://lawrencecrocker.blogspot.com/2018/09/should-president-pence-be-impeached.html

Was Trump’s criticism of Sessions for permitting indictments of Republican House members a high crime or misdemeanor?

https://lawrencecrocker.blogspot.com/2018/09/was-trumps-criticism-of-sessions-for.htm

Was Trump’s “Russia, if you are listening, . . . “ Criminal? Impeachable?

https://lawrencecrocker.blogspot.com/2018/08/was-trumps-russia-if-you-are-listening.html