Wednesday, December 04, 2019

Impeachability, Mootness, and Legal Realism

by Michael C. Dorf

Today the House Judiciary Committee will hear from four legal scholars. (The hearing livestreams here, beginning at 10 am). Three, called by Democrats, will surely say that President Trump's various misdeeds--using the prospect of a White House meeting and Congressionally appropriated money for a besieged Ukraine as leverage to pressure the Ukrainian President to announce (but not necessarily conduct) an investigation of Hunter and Joe Biden, as well as obstructing the Congressional investigation of those acts--readily satisfy the constitutional standard for impeachment. The fourth, called by Republicans, will say that the public record does not disclose sufficient grounds for impeachment.

Lest there be any doubt, I agree with the former view. Donald Trump is manifestly unfit for office. His behavior with respect to Ukraine is a particularly good fit for the text of the impeachment clause, because whether or not he technically committed an act of attempted bribery, by abusing public resources for private gain--and at the expense of national security to boot--he clearly committed acts in the same ballpark as bribery, which counts as "other high Crimes and Misdemeanors."

Yet while I have loaded the prior paragraph with words connoting certainty (such as "manifestly" and "clearly"), there is nothing resembling bipartisan agreement in the House or Senate regarding Trump. Why not? From my perspective, that's because some number of Republican Representatives and Senators are all-in for Trump, while some other number privately know him to be an amoral venal scoundrel but fear the wrath of GOP primary voters. So I'm right and they're wrong, right?

Well, yes, but that's not my point today. Instead, I want to focus on the malleability of legal reasoning by stepping back and comparing and contrasting the Trump impeachment with the last one, involving President Bill Clinton.

During the Clinton impeachment, the great majority of Republicans took the view that Clinton's actions--especially perjury and obstruction of justice by pressuring his secretary to commit perjury--were an abuse of office for personal benefit, and thus impeachable. The great majority of Democrats said that Clinton's actions, while grossly inappropriate, were not impeachable because they were fundamentally private; people who have adulterous affairs typically lie about such affairs.

Now the political valences are reversed. Officially, many Republicans say that Trump did nothing wrong, that his actions towards Ukraine were the product of his "deep-seated, genuine, and reasonable skepticism of Ukraine due to its history of pervasive corruption," as the Republican minority report asserts. That's absurd. Never mind that Trump's various efforts to profit from his office dispel the suggestion that he cares about fighting corruption anywhere. Where is the evidence that Trump cared about any corruption in Ukraine that did not supposedly involve the Bidens? The overwhelming evidence from nonpartisan career diplomats cited in the majority report makes abundantly clear that Trump's goal was simply to abuse his office to extract a politically valuable favor from Ukraine.

So much for "he did nothing wrong." Trump's defenders have a somewhat better answer: even if what Trump did was inappropriate, it wasn't impeachable. I think that's wrong, as I've explained, but here I want to note how similar it is to the Clinton defense: Bad but not impeachable.

What's notable, then, is that, once one discounts the preposterous Trump-did-nothing-wrong defense, the two cases are mirror images. Democrats said Bill Clinton's behavior was bad but not impeachable, while Republicans said it was impeachable. Republicans say that even if what Trump did was bad it wasn't impeachable, while Democrats say it was impeachable. It's logically possible for each side not to be acting inconsistently. Perhaps there's some theory of the Impeachment Clause under which Trump but not Clinton was impeachable and another theory under which Clinton but not Trump is impeachable. But what are the odds that Democrats just happen to subscribe to the former while Republicans just happen to subscribe to the latter? The much much more obvious explanation is that Democrats and Republicans see impeachment through their respective partisan lenses.

To be as clear as I possibly can be, I do not mean to endorse then-Representative Gerald Ford's statement that an impeachable offense is whatever Congress says it is. I think that it should be possible to develop standards that are not strictly partisan. But I think it is extremely unrealistic to expect members of Congress in an era of heightened partisan polarization to see past their cognitive biases in applying those standards to a presidential impeachment.

One might expect better from the Supreme Court, but only if one has not been paying attention. Consider Monday's oral argument in NY State Rifle & Pistol Ass'n, Inc. v. City of New York. In light of the fact that NY State revoked the City's authority for the firearms transport ban at issue, the City argued that the case was moot. The Court's more liberal justices expressed sympathy for the mootness contention. Justices Alito and Gorsuch appear to think the case is not moot. CJ Roberts was straddling. Justices Thomas and Kavanaugh were silent. It's possible that one of them could surprise us. Or perhaps CJ Roberts can engineer a compromise. But for now, the case appears to be dividing the Court along ideological lines--but crucially, not along ideological lines that have anything to do with mootness. As a general matter, liberals take a broader view of the courts' ability to adjudicate cases and conservatives take a narrower one. Here the valence is reversed. Why? For the obvious reason that the justices' views about whether the case is moot are being driven by their views about the Second Amendment. Mootness for them is like the scope of impeachable offenses for Congress.

To my mind, there are three possible conclusions one might draw from this juxtaposition. First, one might conclude that law is radically and just about always indeterminate. I think that's a mistaken view. Neither impeachability nor mootness is the sort of issue with respect to which it is impossible to develop legal standards. Sure, the relevant standards will have some fuzziness in hard cases. But there will also be easy cases.

A second view would be that Congress is a political body and so is the Supreme Court, so one should not expect any better from them but that "real judges" can and do apply law more neutrally. I think my friend and co-blogger Professor Eric Segall takes a view like this. It's more or less what he means when he says that the Supreme Court isn't a court. I think there's something to this. The fact that no institution can overrule either Congress with respect to impeachment (because it presents a nonjusticiable political question) or the Supreme Court with respect to mootness or just about anything else gives them greater room to operate than lower courts have in our system. But I also think that the Segall view overstates the difference between the Supreme Court and those other courts.

That brings me to a third view, which is more or less mine. It's that everybody -- legislators, judges, lawyers, and even law professors -- is subject to various cognitive biases, and these biases operate most potently when the law is very indeterminate or, even if the law is reasonably determinate, when the ideological stakes are very high. In such circumstances, the relevant actors will find wiggle room in the sorts of legal tests that might seem more determinate in cases with lower ideological stakes.


  1. "But I also think that the Segall view overstates the difference between the Supreme Court and those other courts."

    Yes. Perhaps, he should set up a scale on "courtness" though it sounds a bit pure forms to me on some level.

    It is not surprising that I lean toward the position set forth here. Basically, I think each branch are humans with biases etc. & act (or should act) differently (the executive and legislative is more similar than the courts).

    But, each should also have certain standards. Impeachment isn't "anything the House wants" -- there is text there and the House hasn't treated it that way. It is not simply a "no confidence vote." Even with TRUMP with House Dems controlling, it took the second Ukraine controversy (the first being Manafort etc.) for the caucus as a whole (including Schiff) to decide it's time.

    Note the Clinton reference. Did all Dems just say he did nothing wrong? Heck no. Put aside that he admitted error (be cynical all you want including on how much he admitted error ... but has Trump admitted error here?). Many Dems were "yeah, he did something bad, it just wasn't impeachable."

    On something much much more impeachable, even admitting Trump did something wrong seems disqualifying for Republicans. Even those not running for re-election or are seen as moderates like Rep. Hurd. We can be realistic about all of that but it is horrible public service. And, there are ways to address that if people care.

  2. One of the things I find fascinating is how interesting I find legal reasoning even though I think it is irrelevant. I am sure I am not alone.

    I have not been a practicing attorney for 15 years, but I still read some legal scholarship as well as some legal blogs. I have no idea why I care at all since I find myself firmly in the judges are all political (though not always partisan) camp and that all legal opinions are post hoc justifications for outcomes rather than legal reasoning that compels an outcomes.

    None-the-less I still find myself interested in the "right" legal reasoning.

    Some interdisciplinary work should be done here with behaviorists, because I suspect not only am I not alone, but I am likely in the majority when it comes to people interest in the law at all.

  3. Sorry to be late to this party. I know Mike wasn’t trying to summarize my what I think are somewhat nuanced views on why the Court isn’t a court (and is a unique institution). It is not for one or two reasons but a perfect storm of life tenure, long tradition of paying minimal attention to prior law in cases the Justices care about, dealing with imprecise text on a regular basis, and not being reviewable by any other court (among other things). I agree with most of Mike’s fine post but just wanted to chime in on this.

  4. First off, Mike, I want to apologize that I had to cancel my subscription to receive Dorf on Law by email, the new job being extremely demanding and more than full-time in fact. Be that as it may, this piece stayed with me for a few days until I formulated an opinion. I agree wholeheartedly with the final passages about cognitive bias and I also agree there are haunting parallels between this impeachment and that of Bill Clinton. However, overall I don't think you will have persuaded anyone who is still on the fence by your analysis. And to me it's extremely fascinating that there are such militant positions out there still jumping up and down for Trump.




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