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Former Acting U.S. Solicitor General: Want to Know What an Impeachable Offense Is? Look to the ‘Pence Rule’


If President Donald Trump were to actually be impeached and removed from office, as unlikely as the latter is, Vice President Mike Pence would be the one to replace him. Pence is something of an authority on what a High Crime and Misdemeanor is, according to former acting U.S. Solicitor General Neal Katyal.

If you want to know what an impeachable offense is, look to the so-called “Pence Rule” that was uttered in 2008 when Pence was a member of the House of Representatives, Katyal said on Wednesday.

Katyal, speaking about his new book “Impeach: the Case Against Donald Trump” on CNN’s New Day, began by clarifying what the Founders meant by a “High Crime and Misdemeanor.” He used Pence’s past words to do so.

By High Crime, the Founders meant “an abuse of the public trust,” Katyal said. “Whether you look at 1787 or you could even look at the way Mike Pence when he was in the House of Representatives in 2008 put it — in what I call in the book ‘the Pence Rule’ — when a president is putting his interests above those of the American people, that’s what a High Crime and Misdemeanor is.”

“Mike Pence literally said that out loud,” CNN’s John Berman said.

“He did, in 2008. The book begins with that,” Katyal continued. “Americans, I know we have Republicans, and Democrats, and Independents. Just think about this by flipping the identity of the political party. Imagine it wasn’t President Trump […] imagine it was President Obama who was conspiring with a foreign government to get help on his rival — Mitt Romney or whoever. How would you feel about that?”

It turns out that there’s an even longer history when it comes to Pence and impeachment-related remarks.

Pence once penned a column, “Why Clinton Must Resign or Be Impeached,” in which he said, again, that abuse of the public trust by violating the oath of office is an impeachable offense. He said that, to the average American, impeachment might seem like an extreme path to take, but it’s in the Constitution for a reason.

“When a president fails to fulfill his oath of office, as is the case where the law is broken in a big way or a small way (another way of saying high crimes or misdemeanors), the Constitution provides for a mechanism whereby the legislative branch might impeach him,” Pence said. “This may seem drastic to the average American. It is. Our founders intended it to be so because they intended the President of the United States to be the center of the government of the United States.”

Pence then said that Bill Clinton must resign or be impeached because he repeatedly lied to the American people:

Despite his absurd assertions to the contrary, President Clinton’s admission to a sexual relationship with Monica Lewinsky stands in diametric opposition to his sworn testimony in the Jones vs. Clinton case. The President’s responsibility to faithfully execute the laws of the land begins in his own administration. The President committed perjury. Perjury is a crime. President’s who commit crimes should resign or be impeached.

Further, the President’s repeated lies to the American people in this matter compound the case against him as they demonstrate his failure to protect the institution of the presidency as the ‘inspiring supreme symbol of all that is highest in our American ideals’. Leaders affect the lives of families far beyond their own ‘private life’. In the Bible story of Esther we are told of a king who was charged to put right his own household because there would be “no end of disrespect and discord” among the families of the kingdom if he failed to do so. In a day when reckless extramarital sexual activity is manifesting itself in our staggering rates of illegitimacy and divorce, now more than ever, America needs to be able to look to her First Family as role models of all that we have been and can be again.

[Image via Mark Wilson/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.