There are a lot of misconceptions about the Constitution’s remedy for an out of control presidency. Many of them were on prominent display in yesterday’s hearings on Capitol Hill on the topic of Donald Trump’s conduct and whether it lines up with the purpose and intent of the framer’s incorporation of articles of impeachment.
To listen to Republicans and right wing apologists for Donald Trump, you would gather that there exists only an extremely narrow legal avenue under which Trump could be subjected to an impeachment process and removal from office.
This stems from a misunderstanding of the prerogatives of Congress afforded it by the intentions of the framers of the Constitution as well as the history of the legislative device itself. Before we dig into that, let’s look at the bare bones of the reference to impeachment in the Constitution:
“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.” -Article II, section 4
Members of Trump’s party argue that any impeachment proceeding that did not involve precise and specific criminal offenses, would be by definition, illegitimate.
Typical of this is Eddie Scarry, in the Washington Examiner, “Has anyone heard the exact crime or action that Trump engaged in that would justify impeachment? Democrats talk generally about “obstruction of justice,” or Trump’s “conduct,” but the specifics are curiously light, considering the gravity of what they propose.”
Most of the spin from such individuals, whether they be GOP Senators, House members or media flaks, are based on the notion that impeachment requires granularity in respect to the charges and a criminal trial standard of “proof beyond a reasonable doubt.” It requires neither, yet a great deal of the blanket objections from Trump defenders are pretty vague and perfunctory.
Justice Joseph Story in 1833, said in response to this species of claim, “political offences are of so various and complex a character, so utterly incapable of being defined or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.” His point is that it would have been virtually impossible for the framers to anticipate or enumerate every conceivable abuse of office that a president might be liable to commit.
Alexander Hamilton, one of the men intimately involved in the debates at the Constitutional Convention of 1787, writing under the pseudonym “Publius”, in Federalist 65, expounds on the mechanisms that should be instituted in impeaching elected officials. Here, as part of his discourse, Hamilton puts forth a basic outline of the premise behind impeachment itself:
“The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
Of prime importance to note are the phrases, “offenses which proceed from the misconduct of public men” and “the abuse or violation of some public trust”.
Hamilton argues that impeachment should not be so rigidly defined that it leads to inertia. “If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert.”
Impeachment was regarded as an integral part of the Constitution’s system of separation of powers — a vital check in the hands of the legislative branch on believed executive and judicial misconduct.
Michael Stokes Paulsen, writing in Harvard Law Review, outlines the discretion allowed by the framers to future legislators:
The Constitution’s original meaning supports a sweeping power of the two houses of Congress to remove officials for conduct they judge to be: in serious violation of the Constitution; an abuse or misuse of power lawfully possessed; a serious failure to perform the duties of office faithfully and responsibly; a betrayal of the public trust or compromise of vital national interests; corrupt conduct of any of a number of possible varieties; a serious criminal-law offense incompatible with continuance in public office; or other serious non-criminal personal misconduct.
As the debate in the convention began to deal with what provisions might be established to check the actions of a rogue president, not everyone favored the inclusion of an impeachment clause. Governor Morris and Charles Pinckney were reluctant about the prospects and implications of impeaching a president.
For Morris, it was the concern that a president would be circumscribed in his leadership, focusing unduly on the specter of possible impeachment and possibly rendering him “a tool of a faction.” Morris and Pinkney were in the minority.
James Madison saw Article II, Section 4 as “indispensable . . . for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate.”
Elbridge Gerry of Massachusetts (and the elected official credited dubiously with the invention of “Gerrymandering”) – to his credit, maintained impeachment was essential as a check on presidential abuse of power. “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them,” he argued.
George Mason, another delegate, then refuted Morris’ argument that only the president’s assistants should face the impeachment process. “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?” he asked.
This would constitute a rebuke to Donald Trump’s notorious statement that, “Then I have an Article 2, where I have the right to do whatever I want as president.”
Legal historian Charles L. Black, in his definitive – some might say, “power packed”, mere 74 page analysis of the concepts considered, rejected and adopted by the framers (Impeachment: A Handbook) , observes that at the time the impeachment clause was being devised, it was of general agreement that, “Whatever presidential violation is said to rise to the level of an impeachable offense must be one that a reasonable man might anticipate would be thought abusive and wrong, without reference to partisan politics or differences of opinion on policy.”
There is is, the “reasonable man” standard – a hallmark of centuries of jurisprudence, invoked most frequently in tort law.
Expanding upon the native understanding of the phrase, “high crimes and misdemeanors”, Black contends, based on his study of the framers, that the offenses must:
(1) be “extremely serious,”
(2) “in some way corrupt or subvert the political and governmental process,” and
(3) be “plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.”
Impeachment and the employment of it as a remedy for public officials whose conduct is beyond the pale and in need of censure, is by no means an innovation of the last few centuries. It dates back to the origins of English Common Law, and parliamentary law, as do many of the fundamental provisions of our civil and criminal codes.
The late Constitutional Scholar and professor (Harvard and Stanford), Raoul Berger, referencing the impeachment of the Earl of Suffolk in 1386 on the grounds of embezzlement and negligence, observes that,
“[i]mpeachment itself was conceived because the objects of impeachment, for one reason or another, were beyond the reach of ordinary criminal redress”
The House Judiciary Committee’s 1974 Staff Report on Constitutional Grounds for Presidential Impeachment in summing up what distinguishes “high crimes and misdemeanors” from garden variety general offenses, criminal or otherwise, states that “the crucial factor is not the intrinsic quality of behavior but the significance of its effect upon our constitutional system or the functioning of our government.”
So, a way to think of this is that if, for example, the president happened to be driving his personal vehicle and blew through a traffic light and ignored the summons – that would of course, be considered a violation of the law, but it could be argued that it had only a trivial impact on the conduct of the office or the national interests as a whole. For something of this nature, a reprimand in the form of a censure, would likely be the remedy.
Extorting a foreign leader to provide damaging information, or even just to announce an investigation into a political rival on the other hand, is something that affects every citizen in the United States. The obstruction of justice engaged in, is significant in its effect on the constitutional system and functioning of government.
In terms of the threshold of evidence and the specificity of the charges, House member Justin Amash (I-MI) contends that – “Impeachment, which is a special form of indictment, does not even require probable cause that a crime (e.g., obstruction of justice) has been committed; it simply requires a finding that an official has engaged in careless, abusive, corrupt, or otherwise dishonorable conduct.”
Underlining this, once again we refer to the scholarship of Charles Black:
“Omitting qualifications, and recognizing that the definition is only an approximation, I think we can say that “high Crimes and Misdemeanors,” in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not “criminal,” and which so seriously threaten the order of political society as to make petulant and dangerous the continuance in power of their perpetrator. The fact that such an act is also criminal helps, even if it is not essential, because a general societal view of wrongness, and sometimes of seriousness, is, in such a case, publicly and authoritatively recorded.”
Another avenue of consideration are the protests from GOP members of the hearings on impeachment – among them, their contention that impeachment should be avoided on the basis that resorting to it is such an extreme proceeding that it will inflict damage on the nation collectively and tatter the national fabric, “further dividing the nation” and so forth.
In response to House Speaker Nancy Pelosi’s announcement that the House would move forward with the process, House Minority Leader Kevin McCarthy said the “nation is weaker” because Democrats have put impeachment ahead of “all the other things that the American people want.”
The first rebuttal to that is that if the “nation is weaker”, it is not because Congress has been engaged in full obsession with impeachment, to the exclusion of legislative activity. That has been debunked.
Politfact discloses that “House members have passed or agreed to 389 bills and 151 resolutions since January, when Democrats took control. But McConnell has left many untouched in the GOP-led Senate, having vowed to block their progressive policies as the “grim reaper” to their bills on issues such as election security and background checks.”
As to the divisiveness, Trump has already exacerbated and amped up the political and social divide in America and demonstrably so. The train has already left the station on that. Equally, if not more crucial is the reality that taking a pass on the process, with such a rampageous and chaotic chief executive as we are confronted with, would be exponentially more harmful and pose an infinitely greater risk.
Arthur Goldberg, the retired Supreme Court justice, at the time of the House Judiciary Committee’s 1974 hearings that were the analog of the one conducted yesterday by Chairman Jerold Nadler – argued that the Framers understood the potential for disruption of impeachment proceedings but also they realized “that it would be more dangerous for the country to have no remedy against betrayal of the public trust.”
As a House Judiciary Committee staff report put it in 1974, in the midst of the Watergate investigation:
“The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government.” Impeachable offenses, it found, included “undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.”
Everything we’ve examined here – and there was considerable material omitted for the sake of brevity, serves to demonstrate that impeachment as conceived and devised by the framers, does not necessarily require a specific violation of a criminal statute. However, if the Republicans insist on one or two, there are some that are hidden in plain sight.
Complying with Congressional subpoenas of witnesses and documents sent to the White House, is not a matter of option – it is a matter of law.
18 U.S.C. § 1505, provides that “[w]hoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede … the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress” shall face criminal consequences.
Some thread bare assertions have been made that the president is somehow exempt from the above law on the grounds that his office is not specifically mentioned in it and that the absence of his mention confers an exemption.
However, when viewed in context of the obligations of a president to “faithfully execute the law” as he swears an oath to perform, the defense is transparently opportunistic. The statute, in its plain reading, uses the term, “whoever”.
Another one, in which intent can be established pretty concretely on the basis of Trump’s record of conduct, is this, 18 U.S. Code § 1512
(2)cause or induce any person to—
withhold testimony, or withhold a record, document, or other object, from an official proceeding;
otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
In conclusion, I will extend my time to the Republican voices most prominent in the impeachment proceedings against William Jefferson Clinton, some of whom are still here for this go around. They make some pretty strong arguments today, about the imperative of holding Donald J. Trump accountable for his misconduct in office.
At the top of the list, must be none other than Senator Lindsey Graham (R-NC). Graham doesn’t even need to mention the individual he is referring to (President Clinton) in order for his observations to constitute a call for the impeachment and removal of Donald Trump.
He turned the judicial system upside down, every way but loose. He sent his friends to lie for him. He lied for himself. At any time any relevant question come up, instead of taking honorable way out, he just lied and he dug a hole, and we’re all here today because of that.
And I’m not going over the facts again because you have been bombarded with the facts. But if you believe he committed perjury and you believe he obstructed justice, the reason he did it was to fix his case.
Senator Roy Blunt (R-MO), said of the necessity of removing Clinton, “No president can be allowed to subvert the judiciary or thwart the investigative responsibility of the legislature.” Blunt said Clinton’s direction to others to obstruct justice were “serious felonious acts that strike at the heart of our judicial system.” He went on to say, “Violating these oaths or causing others to impede the investigation into such acts are serious matters that meet the standard for impeachment.”
Rep. Mike Crapo (R-ID), “Our entire legal system is dependent on our ability to find the truth. That is why perjury and obstruction of justice are crimes,””Perjury and obstruction of justice are public crimes that strike at the heart of the rule of law — and therefore our freedom — in America.”
But we must return to Senator Graham. As Graham has been one of the most, if not the most voluble about Trump’s fortunes as they relate to the impending impeachment, his words in 1999 are the most damning contradiction to the Lindsey Graham of the present day:
“…you don’t even have to be convicted of a crime to lose your job…your conduct as a public official is clearly out of bounds in your role….Impeachment is about restoring honor and integrity to the office.” –@LindseyGrahamSC on the standards for Impeachment in 1999 pic.twitter.com/KRPu3TPtYm
— Amee Vanderpool (@girlsreallyrule) April 19, 2019