Impeachment
We may be headed towards an impeachment of President Trump; certainly we are in the inquiry or investigative stage. The Constitution specifies that the House investigates and makes the charges; the Senate sits as the jury deciding the case, and the Chief Justice serves as the presiding officer for the trial. The 2/3rds vote decision of the Senate in the affirmative removes the President (or other high official) from office and disqualifies him or her from thereafter holding any office in the federal government. Any criminal or civil charges arising from the conduct in question are dealt with in the state or federal court system thereafter. The standards for removing the President are treason, bribery or other high crimes and misdemeanors; there is no judicial review.
There are two excellent in depth analyses of the history of impeachment by the Impeachment Inquiry Staff of the House Judiciary Committee and by the Office of Legal Counsel of the US Department of Justice from February 1974. https://www.justice.gov/olc/page/file/980036/download and https://ia801902.us.archive.org/14/items/constitutional_grounds_for_presidential_impeachment_-_house_judiciary_comm_staff_report_february_1974/constitutional_grounds_for_presidential_impeachment_-_house_judiciary_comm_staff_report_february_1974.pdf They were prepared in conjunction with the impeachment of President Richard Nixon, who ultimately resigned. Both reports recite many of the same facts and legislative history, but draw somewhat different conclusions, based in part on where they sit – the legislative branch vs. the executive branch --, and their very different bosses (i.e. President Nixon who was being investigated and ultimately charged by the House of Representatives).
Impeachment was first used by the British Parliament in about 1360 to impeach the King’s Chancellor, the Earl of Suffolk. It has been a part of British and American jurisprudence for almost 700 years.
In England, impeachment was key to balancing the competing interests of the King and the British Parliament since Parliament could and did impeach the King’s counselors for malfeasance on the job even though they could not reach the King himself or Queen herself. There were repeated efforts to overthrow or assassinate Kings of England, and in the instance of Charles I, the King was beheaded after a series of serious religious disputes with Parliament. Our Founders thought the avenue of impeachment would be much the preferable option to remove the sovereign where warranted.
Many of the drafters of the US Constitution were intimately familiar with impeachment and debated and discussed it before they wrote it into our Constitution. Our forefathers had just fought a war to be free from the oppression of the English monarchy and did not want to trade in one unaccountable monarchy for another. They set up a system of checks and balances with three separate and co-equal branches of government. Congress was to write the laws; the President was to implement the laws that Congress wrote, and the independent courts were to decide legal cases, including interpreting the laws and striking down as unconstitutional those laws or executive actions which violated the US Constitution. The principal check on the actions of Congress and the President were frequent elections that allowed for replacement of those elected officials who were not executing the people’s will to the people’s satisfaction. An additional check was impeachment, which could be used by Congress against the President, the Vice President, executive branch officials and judges who egregiously failed in their performance of their sworn duties to the nation. The Founders wanted the President and other high officials to be held to account for their behavior, but not held hostage by a Congress with political differences.
The standard for impeachment is treason, bribery or other high crimes and misdemeanors. What does “other high crimes and misdemeanors” mean? It is something more than simple maladministration; the founders rejected that particular phrasing. The US Department of Justice Office of Legal Counsel’s work product concluded it was serious criminal conduct against the laws of the United States. The House Judiciary staff analysis thought it was a broader standard and that the framers were using the term of art refined by four centuries of British parliamentary practice. The framers including Hamilton, Madison, Wilson, Gerry, Randolph, Iredell and many others described impeachment as reaching a broad array of conduct. “In short, the framers who discussed impeachment in the state ratifying conventions, as well as other delegates who favored the Constitution, implied that it reached offenses against the government, and especially abuses of constitutional duties.” House Judiciary Committee Staff Report; see also Appendix 2 of the Office of Legal Counsel memo for a list of grounds for Presidential impeachment as discussed contemporaneously in the state ratification conventions.
There was a great concern from our Founders about bribes, emoluments and other illicit involvement in the development of treaties and other arrangements with foreign governments (at that time the key issues were our relations with Britain and France and to a lesser degree Spain). One of the very first impeachment cases was of a US Senator working covertly with Indian tribes to advance the interests of the British against the Spanish in Florida. In our own time, there is great concern about Trump’s undisclosed, under the table dealings with Russia, Saudi Arabia and other Middle Eastern nations, their campaign interference, their impacts on the US elections, their inaugural committee contributions, and the President’s subsequent diplomacy, arms sales, decisions, and policy making with our allies in NATO, the EU and the G-7.
Writing 50 years after the ratification of the Constitution, “Impeachment, as Justice Joseph Story wrote in his Commentaries on the Constitution in 1833, applies to offenses of "a political character": Not but that crimes of a strictly legal character fall within the scope of the power . . , but that it has a more enlarged operation, and reaches, what are aptly termed political offenses growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty, they must be judged of by the habits and rules, and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations, of foreign as well as domestic political movements; and in short, by a great variety of circumstances, as well those which aggravate as those which extenuate or justify the offensive acts, which do not properly belong to the judicial character in the ordinary administration of justice.” Or to put it in 21st Century terminology, it’s fundamentally a political judgment reached by experienced and diverse political practitioners.
President Andrew Johnson was impeached but not convicted for firing Secretary of War Stanton against the express directive of Congress; the larger dispute was over Reconstruction and Johnson’s laissez faire policies towards white supremacy violence and oppression of Southern blacks after the Civil War. President Nixon resigned to avoid impeachment and conviction after breaking into Democratic campaign headquarters and then paying off the Watergate burglars to ensure their silence and lying to Congress about all of it. President Clinton was investigated for a failed investment in the Whitewater real estate development during his tenure as Governor of Arkansas; President Clinton was impeached but not convicted for his sexual behavior with a White House intern, then lying about it under oath – an utter travesty and abuse of the impeachment process.
Applying the broader standard to the President’s alleged conduct, it seems to me that taking emoluments from foreign and domestic governments is clearly impeachable and the sort of misconduct envisaged by the Founders as warranting impeachment, while paying off a porn star and a Playboy centerfold during a political campaign, while illegal is not within the ambit of impeachment as envisioned by the Founders. Likewise, the President’s alleged fraudulent statements to banks to get loans for his businesses prior to assuming the Presidency may be unlawful acts but are not likely to be impeachable offenses, while taking away immigrant children from their parents and leaving them in inhumane living conditions may well be the sort of extreme misconduct in office, justifying impeachment of the Executive as envisaged by the Founders. The depth and extent of Trump’s involvements with President Putin are still unknown, but depending on the facts could be impeachable offenses; however Manafort, Stone and the President himself are not cooperating nor likely to cooperate with the investigations, leaving crucial facts unknowable. The potential obstruction of justice counts seem to be growing daily as the President stonewalls Congressional investigations and hearings. Then Attorney General Kleindienst opined that the refusal to produce relevant documents or to allow Administration witnesses to testify in an impeachment inquiry under the guise of executive privilege was in and of itself grounds for impeachment. Office of Legal Counsel, Appendix III The difficulty quite frankly is that most Congressional Republicans are in lock step with the President, making an impeachment by Democrats in the House an exercise in futility at this point in time. We do not yet know enough about the details of Trump’s call with the new President of Ukraine allegedly seeking dirt on one of his political opponents in exchange for releasing Congressionally approved foreign aid and military assistance, but it may well be a tipping point, as there is likely a transcript of the call, and this is at least a second offense if not more.
Prepared by: Lucien Wulsin
Dated: 9/19/19
I cannot begin to imagine the horror of our Founders as they would look upon the current state of American democracy, but let us at least take encouragement from their courage and ultimate successes facing far more daunting challenges in their time.
For an excellent article describing the constitutional parameters and proper use of impeachment, see https://harvardlawreview.org/2018/12/to-end-a-republican-presidency/