Perspective: An Argument Against Impeachment

Jun 4, 2019

In first year criminal law classes we learn there are two kinds of crimes: malum in se and malum prohibitum: bad in itself and bad because prohibited. Malum in se crimes are inherently immoral. Murder, arson, rape are examples. They all envision direct action by a person harming a person.

The vast amount of malum prohibitum crimes are crimes merely because they are prohibited by statute. The act itself is rarely immoral.  These are what I call paperwork crimes: e.g. not filing a tax return, not having a license, or jay-walking.

Obstruction ranges from actively getting in the way to physically making a legal act more difficult. Burning trash is a legal act. The burning is made illegal by labeling the trash “state secrets.”

Collusion is defined as an agreement to defraud another or to do or obtain something forbidden by law. For example, husband and wife agree to lie about adultery to get a divorce.

Malum prohibitum comprises the vast majority of federal crimes: no injury or harm has to be proven. These crimes are easy to prove and do not involve proof of harm.

I do not believe high crimes and misdemeanors -- needed for impeachment --  means malum prohibitum crimes. Telling someone he shouldn’t investigate you is not a crime.  Talking to someone about possible embarrassing pictures is not harmful. No matter how these charges are clothed, the actions do not rise to malum in se. They are not inherently immoral.

Impeachment is an extraordinary event. It transcends the public official involved and should not be treated as a remedy for refusal to supply documents. That denigrates its importance. I believe only the inherently immoral, malum in se, justifies impeachment. Being an asinine jerk is not immoral.

Democrats, get off it, and get on with trying to win an election.

I’m Karl Winkler and that is my perspective.