Tuesday, May 30, 2017

Another Anti-Impeachment Talking Point Bites the Dust

by Neil H. Buchanan

Will Donald Trump be impeached?  It is still too early to tell, of course, but given the pace at which damaging disclosures are coming forth, no one should assume that it will not happen.

What we do know without question is that the Republicans in Congress would have impeached and voted to convict Barack Obama, Hillary Clinton, or any other Democrat for doing anything even close to what we now know -- from his own tweets and other statements -- that Donald Trump has done.

But that merely tells us that Republicans are in a bind.  Only a bit of one, however, because such shameless inconsistency only matters to people who have shame, which almost all of these Republicans have repeatedly shown that they lack.  Even those who are perfectly willing to apply different standards to presidents on the basis of partisanship, however, might have their limits.

So the question is: What might be enough to convince a House Republican to impeach, or a Republican senator to convict, Donald Trump?  One way to approach that question is to ask what should be enough to cause Republicans to abandon their current "nothing to see here, Democrats are sore losers" mantra.

But first, an aside.

One of the dubious pleasures of writing for a non-academic readership is that an author receives angry missives from some highly motivated readers.  I described this in some bemused detail last summer in a column that Newsweek accurately titled: "My Inbox is Full of Festering, Delusional, Paranoid Hate."  The intensity of that nastiness turns up to 11 whenever I write anything positive about Hillary Clinton, but criticizing Trump certainly evokes some passionate responses, too.

There are, I am happy to report, also plenty of people who take the time to write positive comments online and even to send messages of thanks to my university email account.  But situated between the incoherent ranters and the appreciative readers, there is another category of correspondent: the angry right-winger who fancies himself (and it is almost always a "he") quite brilliant and who (rather impatiently) wishes to set a wayward author straight.

This is almost always comical.  For example, a colleague of mine wrote a column a few years ago regarding impeachment in a different context, and he used the word "impeach" as a shorthand for impeach-then-try-then-convict-then-remove-from-office, as is common.

He soon received a hectoring email from an aggrieved reader who firmly reminded him that "impeach" has a narrower meaning, going on to insist that this egregious error made my colleague unfit to teach in a law school.  As is common in such emails, my colleague's correspondent continually put scare quotes around the word professor to communicate disdain.

This pattern makes it unnecessary and unwise for a columnist to spend much time reading comments (from any medium), and like most columnists, I tend at most to glance at such things.

Even a cursory engagement with some of those comments, however, does have one upside.  Reading them is enough to make it unnecessary to watch Fox News, because it becomes clear -- simply by noting commonalities among their ramblings -- what the Murdoch-led media is feeding the pro-Trump devotees on any given day.

Because Trump's speaking pattern and tweets tend to mimic the style and level of thinking of an adolescent child, many of his followers (even those who appear to be adults, based on other indicators) tend to adopt his embarrassing habits.  Thus, for example, people (like me) who attack Trump are now assailed as "haters."  Who knew that a 2000 music video would become a lifeline to an unpopular president's minions?

Adopting another adolescent style of taunting, these hater haters also describe Trump's critics as "dumb," "stupid," "losers," and of course "libtards."  And we wonder whether perhaps Trump has coarsened our national discourse over the last few years!

Beyond the immature insults, however, it is interesting that Trump's backers have lately decided (again, I assume because Fox is now pushing this idea) that Trump is not impeachable because he has supposedly not done anything for which a prosecutor could indict him in a criminal proceeding.

Apparently, some lawyers (who, we are to believe, must surely be much smarter than the experts on the other side) have said as much on the fair-and-balanced channel, so it must be true.

All of which means that it might be a good time to stop and ask what actually is required for impeachment and removal of a president.  Is it true that if he cannot be sent to jail for it, he cannot be impeached for it?

This is an important question, because even some anti-Trump politicians and commentators seem to have convinced themselves that the answer is yes.  We thus see some scolding comments along the lines of "we liberals have to accept that impeachment is neither politically realistic nor substantively appropriate," or words to that effect.

It turns out, however, that the answer is straightforward, and it is not what Trump's backers want to hear: indictable is not a necessary condition for impeachable.

Indeed, this should not be surprising, because criminal liability can lead to the deprivation of liberty.  We put a high bar on putting someone in jail because personal freedom is a bedrock principle of our constitutional system, and we want to prevent the sovereign from being able to put people away (and in some cases execute them) without serious procedural safeguards.

By contrast, no one has the right to be president (or a judge, or a legislator).  We take elections and appointments seriously (although Trump refused to promise that he would have done so, had he lost in the Electoral College as he did the popular vote), which means that we do not remove people from office lightly.

But removal from office is not a deprivation of liberty.  If the impeachable offenses happen also to be criminal acts, then the wrongdoer can be prosecuted after (or perhaps even before) being kicked out of office.  The two acts -- removal from office and imprisonment -- are hardly the same thing, and it thus should not be surprising that they would have different standards.

So, is Trump currently impeachable, based on what we already know?  Yes.  Yes, he is.  One analysis of this question was offered by Laurence Tribe in a recent op-ed in The Washington Post.

I should note here that I cite Tribe not because he is the definitive source on all matters constitutional.  True, he is a constitutional law professor at Harvard who has had a long and impressive career.  Even so, I (sometimes co-authoring with Professor Michael Dorf, sometimes writing alone) have publicly clashed with Tribe in the past on substantive matters of law.  I would never say that he is always right.

Of course, I would certainly not say that he is always wrong.  The point is that in this instance Tribe makes a very persuasive case.  In part, he focuses on Trump's blatant violations of the "emoluments clause" of the Constitution, which is a perfect example of something that is a constitutional violation that is not necessarily a criminal violation.

Beyond that, however, Tribe's case for impeachment makes the simple and powerful point that the phrase "obstruction of justice" in the impeachment context does not have the same meaning that it does in the criminal context.  As he put it elegantly: "To say that [what Trump has admitted to doing] does not in itself rise to the level of 'obstruction of justice' is to empty that concept of all meaning."

Again, indictable and impeachable do not mean the same thing.  And Tribe's argument ultimately relies on (but, most likely for reasons of space, did not describe) the proper meaning of the key phrase in the Constitution: "high crimes and misdemeanors."

People can understandably be misled by those words to think that we are again talking solely in criminal justice terms.  The word "crime" is right there, after all, and the word "misdemeanor" is most commonly used in the context of a criminal indictment.

We thus can imagine Trump's defenders parsing the words -- which they would immediately attack anyone else for doing, of course -- to find a way to make Trump's actions non-impeachable.  For example, does "high" modify "crimes and misdemeanors" or just "crimes"?  If the former, what in the world is a "high misdemeanor," given that misdemeanors are low-level crimes?

Just as Tribe points out regarding the crime-y sounding phrase "obstruction of justice," however, "high crimes and misdemeanors" has a clear non-criminal meaning in the impeachment context.  Importantly, both the Supreme Court and legal scholars have agreed that the entire phrase "high crimes and misdemeanors" is to be read as a single term of art, not as four separate words to be analyzed separately.

Just as "due process," "cruel and unusual punishment," "equal protection of the laws," and so on mean something more than their constituent words," the phrase "high crimes and misdemeanors" also carries meaning as a constitutional concept.

There are situations in which scholars disagree about whether the "framers' intent" is the proper way to understand a constitutional concept, but this is not one of them.  As an excellent congressional analysis from the Watergate era explains, there is no question that "high crimes and misdemeanors" in the impeachment context was not meant to be co-extensive with the criminal meanings of those words.

Of particular interest is that the framers all seemed to view the phrase as unambiguous, and they treated it as a term of art to reflect its origins in British law.  There was briefly an effort by George Mason to use the word "maladministration," but James Madison objected to that word for being too vague.  Mason then substituted "high crimes and misdemeanors agst. the State" to expand impeachment beyond the two delineated offenses of treason and bribery, and his proposal was adopted.

Trump need not, therefore, have committed treason or have been directly bribed in order to be impeachable.  And such further grounds for impeachment are not limited only to actions for which criminal indictment is immediately appropriate.  Trump, like all presidents, must not "subvert the Constitution," in Mason's words.

And this means that the House and Senate can (and should) view what Trump has already admitted to doing as impeachable offenses.  He has fired an FBI director in order to stop an inquiry into potential criminal (and possibly treasonous) activities by his campaign and associates.  He has had his people lie about why he fired Comey.

And that is only the most blatant attempt to abuse the powers of his office -- which also means, by the way, that the statement that "Trump has the legal right to fire the FBI director" simply does not answer the question of whether the firing is or is not an impeachable offense.  That the same presidential powers can be exercised for legitimate and illegitimate purposes does not remove the latter instances from the realm of high crimes and misdemeanors.

Almost exactly a year ago, I wrote a column under the title, "Is This the Beginning of the End of Constitutional Democracy in the U.S.?"  My motivating thought there was that there are countless ways in which a president can abuse the powers of the presidency to undermine the constitution and the rule of law.  Trump could, I feared, ride a wave of public discontentment into office and then abuse those powers.

That is precisely what has happened.  As I wrote above, Trump has taken actions that Republicans would never have countenanced if taken by a Democratic president.  Beyond the hypocrisy, however, what Republicans need to decide is when Trump's actions move into the realm of impeachable offenses.

Whatever else they may use to justify not impeaching or convicting Trump, however, there is simply no basis for Republicans to rely on the excuse, "Well, he hasn't committed any crimes that we know about!"


Joe said...

The necessary standards are also relevant for the Republican just elected, after a certain incident with a reporter. The House can expel him without criminal prosecution. OTOH, since is it likely he won't be -- even if convicted -- be charged with a felony, realistically, that is probably not likely.

el roam said...

Thanks for the post , many issues and sub – issues , but to the essential one :

Article II. – Section 4 , dictates as follows :

" 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. "

End of quotation :

We must presume , that : Treason and bribery as specific crimes , explicitly mentioned , are surly impeachable . Now , we must presume , that if Treason and bribery are so , than the rest is questionable . And why ?? because , it is mentioning an undefined list , as such , those are discretionary crimes or whatever misdemeanors . That means , that it is up to a judge , or , professional legal expert , to fill the gap , and decide , what in it , constitute an impeachable offence , what is not . And what would be then , the compass or guideline , well : what surly has to do with the president as such , as the president of the US and his functioning as such . This has been Well illustrated in that post of Vikram David Amar , in the site : " Verdict " here I quote :

" those that seriously corrupt or subvert the process of government itself and the country’s faith in the fundamental integrity of its leadership."

And :

" whether the offense is the kind of high misconduct that unfits a person to serve in the White House even though s/he was duly elected."

His article , is very recommended , here :

For the rest , one should to the math …..


Michael C. Dorf said...

Neil's point is clearest once one understands that for over two hundred years (since U.S. v. Hudson & Goodwin, https://supreme.justia.com/cases/federal/us/11/32/case.html), it has been up to Congress to define crimes by statute, rather than up to the courts to recognize common law crimes. This principle is also now understood to be a requirement of due process. Congress could have any number of reasons for not including some conduct in the criminal code that would not apply to impeachment. Suppose that Congress defined "bribery" for criminal purposes as requiring that the bribe have a value in excess of $75,000, simply to keep relatively small cases out of court. (Congress has done exactly this for civil diversity cases.) Now imagine that a president took a $74,000 bribe. Is there any sense at all in saying that he could not be impeached because of the happenstance that the statutory definition of bribery does not cover the conduct? Likewise for "obstruction of justice" and other offenses.

egarber said...

Two things:

1. Another related narrative I run into centers on collusion with the Russians as the trigger point.

To paraphrase, here is a common exchange:

Trump Supporter: "To this day, there is no evidence Trump colluded with the Russians, so you're jumping the gun with all this impeachment stuff."

Me: "Even if nothing comes of that question, a bright line has been crossed: 1) the president fired the lead official investigating him, and 2) he admitted in public and to the Russians that he did it to short-circuit the investigation. I don't need to know whether the runner was safe to recognize when somebody throws dirt in the umpire's face and then brags about it... And in this case, Trump abused specific presidential power to do so."

2. As for the Emoluments Clause, does it not make sense to let that one exhaust its way through the courts first? Assuming somebody could establish standing, judicial clarity around the meaning of the clause would seem to be helpful; even a ruling that it's a political question or non-justiciable would be constructive, since it would then be obvious that impeachment is the only avenue. Unlike direct abuse of presidential power (the Comey firing), the EC itself seems in need of clarification.

Joe said...

I think the best argument made was that emoluments would be impeachable even though there are no apparent criminal laws in place blocking it.

As to waiting for the courts to act, realistically, you are not going to get the votes to impeach now anyway. So, you have people arguing that emoluments is one quiver in the bow. Meanwhile, it works it way through the courts. There is a synchronicity there, the force of the argument puts pressure on judges to take the claims seriously, don't just dispose it on political question grounds.

Realistically, something like firing Comey etc. probably has the most bite on the impeachment side. But, emoluments do provide a serious claim. Even so, impeachment would not be my first move there. I would have Congress use the clause to do various things to put pressure on Trump and his family, including disclosure requirements and airing out things by subpoenas and hearings. The responses and developments there very well might factor into the impeachment case.

David Ricardo said...

I would join with commentators (on other sources) and argue that with respect to the Presidency, impeachment and conviction (don’t want those accusatory e-mails) is primarily a political act rather than a response to criminal or indictable acts by the President. I think a good argument can be made that the two impeachments that have taken place in the United States since its inception have been political in nature, not in response to criminal activity by Presidents Johnson and Clinton.

With respect to the impeachment provision in the Constitution, one interpretation that could be made is that the Founders wanted a President removed for what they considered removable offenses, treason and bribery. But they also recognized that there may be actions by the President that warrant impeachment and so made the rest of the provision deliberately obtuse.

So with respect to impeachment of Trump by the Republican controlled House it will not happen until the politics of the situation compel impeachment. When a Republican office holder can take an anti-Trump pro impeachment position without facing a primary challenge then impeachment will take place. We are not there yet, we may never be there.

Shag from Brookline said...

Over at the Originalism Blog Mike (I'm not Rappaport) Ramsey posts editorially on Neil's post. Comments are not accommodated at OB, which surveys other legal blogs in support of just about any version of originalism, even conflicting versions. Perhaps originalists have the benefit of that Saudi Arabia magic orb to determine original intent, original understanding, original meaning, original whatever, of the impeachment clause.

Shag from Brookline said...

Greg Craig, Bill Clinton's counsel for the impeachment process, was interviewed on the Newyorker radiohour last Saturday. Here's the URL for a summary:


which might provide a link to the podcast. Craig made the point that impeachment is political, with impeachment meaning what a majority of the House thinks is impeachable and then two-thirds of the Senate.

If indeed impeachment is political, then for political reasons chances of impeachment are slim while the Republicans control control a majority. This can change not only as a result of the midterm House elections but in anticipation if certain House Republicans believe a political disaster would result in those elections although gerrymander would protect a fair number of House Republicans. Jack Balkin has an interesting post at Balkinization a couple of days ago that, inter alia, takes a look at the possibilities of impeachment. It seems that House Democrats for the most part will not be pushing for impeachment because it's an uphill battle, even if Democrats make inroads in the House in 2018.

My view is that Republicans at some point that is politically strategic will work out a deal with Trump via the 25th A that Trump believes would not constitute him a "loser," but rather a "winner," having done spectacular things for America and it's time to get back to his business empire. Trump would be assured of no criminal charges, perhaps a la Gerald Ford pardoning Nixon, and of course keeping what may be considered emoluments. Trump doesn't seem happy with presidential duties and doesn't like the criticisms he has been subjected to. In his own mind Trump may be able to then claim that he has made America great again. This could be a back room deal on Trump's terms using the mechanics of the 25th A.

Trump in the White House seems to be suffering from "melaniacoly."