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 without favor or prejudice, is "seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office." When that standard is met, however, the Constitution calls the House to action. In such cases, a decision not to impeach has grave consequences and sets an ominous precedent. As Representative William Cohen remarked in President Nixon's case, "It also has been said to me that even if Mr. Nixon did commit these offenses, every other President … has engaged in some of the same conduct, at least to some degree, but the answer I think is that democracy, that solid rock of our system, may be eroded away by degree and its survival will be determined by the degree to which we will tolerate those silent and subtle subversions that absorb it slowly into the rule of a few."

V.The Criminality Issue

It is occasionally suggested that Presidents can be impeached only if they have committed crimes. That position was rejected in President Nixon's case, and then rejected again in President Clinton's, and should be rejected once more.

Offenses against the Constitution are different in kind than offenses against the criminal code. Some crimes, like jaywalking, are not impeachable. Some impeachable offenses, like abuse of power, are not crimes. Some misconduct may offend both the Constitution and the criminal law. Impeachment and criminality must therefore be assessed separately—even though the commission of crimes may strengthen a case for removal.

A "great preponderance of authority" confirms that impeachable offenses are "not confined to criminal conduct." This authority includes nearly every legal scholar to have studied the issue, as well as multiple Supreme Court justices who addressed it in public remarks. More important, the House itself has long treated "high Crimes and Misdemeanors" as distinct from crimes subject to indictment. That understanding follows from the Constitution's history, text, and structure, and reflects the absurdities and practical difficulties that would result were the impeachment power confined to