Is Money Laundering Impeachable?

It is conceivable that a “President, Vice President, or Civil Officer of the United States” might be charged with money laundering in connection with his or her official duties, for example, by receiving, disguising, or liquidating a bribe. It would be uncontroversial to include money laundering of this ilk among impeachment counts. Raising more difficult issues would be money laundering in connection with a private business having nothing to do with the officer’s official capacity.  

Depending on the specifics of a transaction involving, e.g., banking, real estate, trading, brokering, commerce, or investment it might not affect or be affected by the officer’s governmental activities.  (What I am asking is akin to the question whether an officer could be impeached for shooting someone in the middle of Fifth Avenue, but I wish to eschew counterfactuals that no serious person would tender.)

Against Impeachment for Money Laundering

The function of impeachment (and it is its only function pursuant to the US Constitution)  is to remove and bar from office. The obvious justification for removing someone from office is for nonfeasance, misfeasance or malfeasance in office. A natural inference is that money laundering unrelated to official duties is not grounds for impeachment.

 “High Crimes and Misdemeanors” as it came down to us from British Parliamentary history does not lend itself to the distillation of a crisp, lawyerly definition. See my post, https://lawrencecrocker.blogspot.com/2019/04/high-crimes-and-misdemeanors-as-term-of.html.  However, the specific charges brought under this formula were overwhelmingly for offenses alleged to be directly and seriously injurious to the state. Business crimes unrelated to matters official were not so charged. What familiarity the framers and ratifiers of the Constitution had with the phrase “high crimes and misdemeanors” would have come largely from the impeachment of Warren Hastings, which was widely reported in the newspaper of the new United States during the Convention and ratification period. It was all about official misconduct in colonial India. 

For those who believe that the Constitution should be interpreted so as to embody the intentions of the drafters, as well as for those of us who take drafter intent only as evidence of the then common meaning of the words and phrases of the document, there are some relevant entries in the Convention records. Although an earlier discussion included “treachery,” “incapacity” and “corrupting his electors”, subsequent entries mention as impeachment grounds only “malpractice and neglect of duty” and, a month later, “malversation, neglect of duty, and corruption.”  So before settling on the final, not very transparent, language the drafters showed that their focus was on conduct in office.

Only once has the House impeached and the Senate convicted for conduct facially unrelated to official conduct: income tax fraud by District Judge Harry Claiborne. In this instance, however, the fraudulently unreported income was that of a bribe to the judge from a Nevada brothel owner.

For Impeachment for Money Laundering

There is an argument that some acts totally unconnected to official duties are nonetheless impeachable because either

(1)    They reveal character rendering the officer unfit for the office.

(2)    People who know of the acts would be affected by that knowledge and, rightly or wrongly, lose confidence in the officer.

“A money launderer is not fit to be fill a position of trust in the government. If she can’t handle her personal financial affairs legally, why should we think she will display integrity in her official acts?”

Money laundering 20 years before the office was assumed might not count. Character can change over decades, and 20 years of honesty can rehabilitate a reputation. Recent, unambiguous, high denomination money laundering, however, should be impeachable whether related or unrelated to public office, and even if it occurred before the office was assumed – or so it is contended.

Yet, popular estimations of reputation and projections of character from non-official conduct are surely less apt, less objective, and more manipulable as grounds for removal from office than are official nonfeasance, malfeasance or misfeasance. 

Conclusion

There are sometimes good reasons to be concerned about judges or high executive branch officials who have engaged in serious, criminal, private transactions. The wise course may well be to remove that person from office. The impeachment clauses of the Constitution do not, however, seem to give the Congress that power.

Appendix on the Justice Department’s Immunity Memoranda

The president could, and surely would, be removed from office via the 25^th Amendment if imprisoned for money laundering. We know, however, that a sitting president cannot be federally indicted as the Justice Department’s currently sees things – guided by Office of Legal Counsel opinions of 1973 and 2000. 

The framers well knew how to write an immunity provision (Article I, Section 6, Clause 1). Congressional immunity is narrow. It protects from arrest for minor crimes, but not for treason or felony, and it protects only while attending session or on the way to or from. (It also gives immunity for any speech in Congress against civil, and potentially criminal actions, even felonious speech, were there such.) 

Yet, the OLC opinions with what could only be called breathtaking judicial activism, were it judicial rather than executive, conclude that the president enjoys a far broader immunity. The OLC weaves the particular constitutional powers of the president together with its own estimation of the disruptiveness of a trial,  and finds that the separation of powers mandates that the sitting president is to be the one and only person beyond the reach of the criminal law.

Anyone who agrees with my conclusion that money laundering is not an impeachable offense will almost inevitably conclude that the Justice Department’s position on presidential immunity must be wrong. Some crimes surely are so bad that a president who has committed one of them must be removed from office. If, because it had nothing to do with the office, impeachment is unavailable, then the criminal process and the 25^th Amendment should be. 

Consider the possibility of a crime committed some time before the election and coming to light shortly after inauguration. You, I, and the FBI might have to sit and watch while the president runs out the statute of limitations. (Equitable tolling? Don’t count on it.)

An indictment of a sitting president by a state grand jury would no doubt give rise to the interposition of the supposed presidential immunity as a constitutional shield against the state prosecution.  If this question were to be decided by the justices of the Supreme Court deliberating behind a veil of ignorance as to the party of the president, I suspect that the presidential immunity defense would fail 9-0. This gives me only very modest hope that it would be so decided even without the veil.