Noah Feld­man and

The Case for Im­peach­ment by Al­lan J. Licht­man

The New York Review of Books - - Contents - Noah Feld­man and Ja­cob Weis­berg

1.

As more and more ev­i­dence of col­lu­sion be­tween Don­ald Trump’s pres­i­den­tial cam­paign and Rus­sia has come to light, the anal­ogy to Water­gate has grown ever stronger. In both cases, a bur­glary of the Demo­cratic Na­tional Com­mit­tee, un­der­taken to in­flu­ence the out­come of an elec­tion, ig­nited a bur­geon­ing scan­dal. Trump’s fir­ing of FBI Di­rec­tor James Comey and warn­ings to Spe­cial Pros­e­cu­tor Robert Mueller con­jure Pres­i­dent Nixon’s Satur­day Night Mas­sacre. Trump echoes Nixon in rag­ing against leaks and de­cry­ing the in­ves­ti­ga­tion of his of­fice as a “witch hunt.” There was brief ex­cite­ment about Trump’s sug­ges­tion that he too might have a pres­i­den­tial tap­ing sys­tem (though this seems to have been only a bluff).

Our lex­i­con for po­lit­i­cal scan­dal de­rives largely from Water­gate, so it is al­most im­pos­si­ble to dis­cuss ex­ec­u­tive branch mis­deeds with­out re­fer­ring to it. Phrases like “It’s not the crime, it’s the cover-up” and “What did the Pres­i­dent know and when did he know it?” are em­bed­ded in our na­tional con­scious­ness. We all know where the Water­gate com­par­i­son leads, of course: to con­sti­tu­tional cri­sis and im­peach­ment, the fate Nixon evaded only by his res­ig­na­tion. It is com­fort­ing to Trump’s op­po­nents to think of this out­come as in­evitable, but of course it is not. Whether or not it is “worse than Water­gate,” the Trump-Rus­sia scan­dal dif­fers from it in ways that bear di­rectly on how im­peach­ment might serve as a rem­edy to­day.

Be­cause it has been used so rarely, and be­cause it is a power en­trusted to Congress, not the courts, im­peach­ment as a le­gal process is poorly un­der­stood. There are no ju­di­cial opin­ions that cre­ate prece­dents for how and when to pro­ceed with it. Past cases are sub­ject to com­pet­ing and of­ten con­tra­dic­tory in­ter­pre­ta­tions. Some might even be tempted to ar­gue that be­cause im­peach­ment is ul­ti­mately po­lit­i­cal, it can­not be con­sid­ered in le­gal terms at all.

That ex­treme view can­not be right. Im­peach­ment must be a le­gal pro­ce­dure be­cause it de­rives from spe­cific con­sti­tu­tional di­rec­tives. The im­peach­ment clauses of the Con­sti­tu­tion are sub­ject to in­ter­pre­ta­tion, like all lan­guage, le­gal or oth­er­wise, but they func­tion as law. Mem­bers of Congress have a sworn le­gal duty to ap­ply the Con­sti­tu­tion cor­rectly—in­clud­ing when they are con­sid­er­ing im­peach­ment. Call­ing for the im­peach­ment of Supreme Court Jus­tice Wil­liam O. Douglas in 1970, then Con­gress­man Gerald Ford as­serted that “an im­peach­able of­fense is what­ever a ma­jor­ity of the House of Rep­re­sen­ta­tives con­sid­ers it to be at a given mo­ment in his­tory.” That state­ment ought to be taken as a de­scrip­tion of po­lit­i­cal re­al­ity, not a pre­scrip­tion that Congress may choose to treat any con­duct as im­peach­able.

The le­gal lim­its of the im­peach­ment power are sub­ject to de­bate.1 Yet it is clear both his­tor­i­cally and log­i­cally that im­peach­ment was de­signed to deal with abuses com­mit­ted while in of­fice, not prior crimes. Any wrong­do­ing of Trump’s be­fore he as­sumed the pres­i­dency must be con­sid­ered sep­a­rately from of­fenses he may have com­mit­ted in of­fice. The for­mer, how­ever se­ri­ous it might be, is not a ba­sis for im­peach­ment; and the pres­i­dent is pre­sump­tively pro­tected from pros­e­cu­tion by pres­i­den­tial im­mu­nity un­til he leaves the White House.2

1Two books pub­lished in the 1970s by im­por­tant con­sti­tu­tional law pro­fes­sors ad­dress these is­sues in de­tail: Charles L. Black, Im­peach­ment: A Hand­book (Yale Univer­sity Press, 1974), parts of which are avail­able online at law­fare­blog.com/im­peach­able-of­fense; and Raoul Berger, Im­peach­ment: The Con­sti­tu­tional Prob­lems (Har­vard Univer­sity Press, 1973). Black wrote with Nixon in mind; Berger was in­spired to write by the at­tempted im­peach­ment of Douglas in 1970.

2

The Supreme Court has never defini­tively held that a sit­ting pres­i­dent could not be in­dicted, and in­deed a mem­o­ran­dum writ­ten for in­de­pen­dent pros­e­cu­tor Ken­neth Starr ar­gued to the con­trary. (See Char­lie Sav­age, “Can the Pres­i­dent Be In­dicted? A Be­tween this be­fore-and-af­ter di­vi­sion lies an un­ex­plored gray area: Can a pres­i­dent be im­peached for at­tempt­ing to steal an elec­tion while he was not yet in of­fice? On the one hand, ac­tions taken by a can­di­date are not tech­ni­cally an abuse of an of­fice that he does not yet hold. On the other hand, crimes com­mit­ted in pur­suit of the pres­i­dency could count as “high” in the sense that they are con­nected to the pres­i­dency even if they are not com­mit­ted in of­fice. The de­ci­sion would lie with Congress, which could sim­ply re­ject the dis­tinc­tion. The prob­lem did not arise in Nixon’s case, be­cause his dirty tricks (in­clud­ing the Water­gate break-in) took place while he was in of­fice, run­ning for a sec­ond term. It is prob­a­bly safest to as­sume that if Trump col­luded with Rus­sia dur­ing the 2016 elec­tion, that would not qual­ify as a high crime or mis­de­meanor. Nev­er­the­less, he would be im­peach­able for any of­fi­cial acts dur­ing his pres­i­dency re­sult­ing from the dis­tor­tion of the elec­toral process—such as ob­struc­tion of jus­tice or pay­back to Rus­sia. In his case, far more than Nixon’s, the is­sue re­ally is the cover-up, not the crime.

Ob­serv­ing such le­gal niceties is cru­cial in think­ing about re­mov­ing a pres­i­dent for un­der­min­ing the rule of law. Yet Ford was ac­cu­rate in de­scrib­ing the

Long-Hid­den Le­gal Memo Says Yes,” The New York Times, July 22, 2017.) But most schol­ars agree that the pres­i­dency would be im­prop­erly ham­strung by a crim­i­nal charge, which could in the­ory even lead to the pres­i­dent be­ing in­car­cer­ated. de­ci­sion to im­peach as in­her­ently po­lit­i­cal. The ques­tion of whether pro­ceed­ings to re­move Don­ald Trump be­gin in the House be­fore the 2018 midterm elec­tions does not fun­da­men­tally de­pend on the se­ri­ous­ness of the charges or the pres­i­dent’s of­fenses. It de­pends on whether some group of Repub­li­can mem­bers of Congress is pre­pared to break ranks and sup­port the process— some­thing that did not oc­cur un­til the later stages of Water­gate. If that does not hap­pen, the ques­tion of whether im­peach­ment moves for­ward will likely de­pend on whether Democrats regain con­trol of the House in 2019.

2.

Al­lan Licht­man tells us in The Case for Im­peach­ment that nearly alone among po­lit­i­cal pun­dits, he fore­saw vic­tory for Don­ald Trump. Af­ter he won, Trump sent a note to con­grat­u­late him on his fore­cast, but did not men­tion what Licht­man con­sid­ers to be his other big pre­dic­tion: that Trump would be im­peached be­fore his term was up. This was based on what Licht­man calls a “deep anal­y­sis of Trump’s past and proven be­hav­ior.” In short, it was re­al­is­tic to as­sume that Trump would not change, that he would con­tinue to break laws and thereby put him­self at risk of im­peach­ment.

Licht­man dismisses the cru­cial dis­tinc­tion be­tween of­fenses com­mit­ted be­fore and af­ter in­au­gu­ra­tion, cit­ing the doubt­ful author­ity of then Sen­a­tor Jeff Ses­sions of Alabama in the im­peach­ment hear­ings against a Louisiana fed­eral judge, G. Thomas Por­te­ous, in 2010: “I do not be­lieve that ev­i­dence of acts com­mit­ted be­fore con­fir­ma­tion should be with­held from con­sid­er­a­tion in the im­peach­ment process.” That view al­lows him to fo­cus ex­ten­sively on Trump’s al­leged crimes be­fore tak­ing of­fice, start­ing with vi­o­la­tions of the Fair Hous­ing Act in his first job, which in­volved keep­ing black ten­ants out of his fa­ther’s seg­re­gated rental prop­er­ties, and con­tin­u­ing through such by now well-known scan­dals as Trump’s non­char­i­ta­ble “foun­da­tion” and his none­d­u­ca­tional “univer­sity.”

Yet the view that prepres­i­den­tial of­fenses are im­peach­able is an out­lier among both con­sti­tu­tional schol­ars and leg­is­la­tors. (Judges may be dif­fer­ent from pres­i­dents, since past crim­i­nal ac­tiv­ity could im­pinge on their abil­ity to de­liver jus­tice fairly.) In the cases of Nixon and Bill Clin­ton, the House Ju­di­ciary Com­mit­tee took care to frame ar­ti­cles of im­peach­ment around acts that took place while they were in of­fice.

Licht­man is wrong that col­lu­sion dur­ing the cam­paign be­tween Trump and Rus­sia could lead to im­peach­ment for trea­son. He states flatly that Trump could even be im­peached for fail­ing to re­port trea­sonous con­duct if it could be shown that he knew about col­lu­sion with Rus­sia on the part of his aides. Trea­son is, of course, one of two of­fenses spec­i­fied in the im­peach­ment clause of the Con­sti­tu­tion, along with bribery. But it is de­fined else­where in the Con­sti­tu­tion as giv­ing aid and

com­fort to a for­eign power at war with the United States.3 As­sum­ing that trea­son as an im­peach­able of­fense means the same as it does as a crim­i­nal of­fense, the pres­i­dent or any other of­fi­cial could be charged with it only dur­ing a state of war.

When he pro­poses ar­ti­cles of im­peach­ment for Don­ald Trump, Licht­man over­reaches fur­ther, clas­si­fy­ing con­duct as im­peach­able when it is not an abuse of power but an act or pol­icy he con­sid­ers bad and danger­ous. He de­votes a chap­ter to the claim that Trump’s lies, in­clud­ing lies be­fore tak­ing of­fice, are grounds for im­peach­ment. An­other chap­ter ar­gues that Trump’s “war on women,” in­clud­ing his al­leged misog­y­nist con­duct, is im­peach­able.

Most strik­ingly, Licht­man as­serts that Trump’s pol­icy on climate change is a “crime against hu­man­ity” wor­thy of im­peach­ment. There would be no faster way to dis­credit the idea of im­peach­ment legally and po­lit­i­cally than by treat­ing wrong­headed pol­icy as a ba­sis for it. At the Philadel­phia con­ven­tion, James Madi­son ob­jected to a pro­posal that would have made “mal­ad­min­is­tra­tion” suf­fi­cient grounds for im­peach­ment. The term was “so vague,” he said, that it would be “equiv­a­lent to a ten­ure dur­ing plea­sure of the Se­nate.” The long-term con­se­quences of treat­ing pol­icy dis­agree­ments as grounds for im­peach­ment are ter­ri­fy­ing to con­tem­plate for the sta­bil­ity of a pres­i­den­tial sys­tem of gov­ern­ment. A far more cau­tious ap­proach to the topic, one thor­oughly grounded in con­sti­tu­tional his­tory and past prac­tice, may be found in Cass Sun­stein’s ex­cel­lent Im­peach­ment: A Cit­i­zen’s Guide. Sun­stein ad­vo­cates a neu­tral, non­po­lit­i­cal ap­proach to im­peach­ment, urg­ing us to imag­ine our­selves be­hind a veil of ig­no­rance, know­ing noth­ing of the pres­i­dent’s poli­cies but only of the ac­tions for which he is to be im­peached. In ful­fill­ment of that goal, Sun­stein says noth­ing di­rectly about the cur­rent oc­cu­pant of the of­fice. The name “Don­ald Trump” does not ap­pear in his book.

Sun­stein does pro­vide twenty-one hy­po­thet­i­cal cases, of­fer­ing his view of whether im­peach­ment would be ap­pro­pri­ate for each. Some of these clearly re­fer to cur­rent events, such as one in which a “pres­i­dent is elected as a re­sult of a se­cret plan with a na­tion that is un­friendly to the United States .... There is no quid pro quo, but the pres­i­dent’s elec­tion has un­ques­tion­ably been fa­cil­i­tated by an ex­plicit plan.” (An­swer: yes to im­peach­ment.) In an­other, “a pres­i­dent makes a host of er­ratic de­ci­sions, and they lead to do­mes­tic and in­ter­na­tional tur­moil.” (An­swer: yes, but only just.)

These in­trigu­ing cases—some of them very hard to judge—show the com­plex­ity of the im­peach­ment ques­tion. They point the way to the kind of care­ful ap­pli­ca­tion of law to facts that is re­quired to make a con­sci­en­tious eval­u­a­tion.

3Ar­ti­cle III, Sec­tion 3: “Trea­son against the United States, shall con­sist only in levy­ing War against them, or in ad­her­ing to their En­e­mies, giv­ing them Aid and Com­fort. No Per­son shall be con­victed of Trea­son un­less on the Tes­ti­mony of two Wit­nesses to the same overt Act, or on Con­fes­sion in open Court.”

3.

Are im­peach­ment pro­ceed­ings against Don­ald Trump war­ranted? Ar­ti­cle II, Sec­tion 4 states: “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.”

The es­sen­tial terms and phrases here have his­tor­i­cal mean­ings some­what at vari­ance with con­tem­po­rary us­age. The words “crimes” and “mis­de­meanors,” for ex­am­ple, do not dis­tin­guish acts of dif­fer­ent grav­ity, as they do in crim­i­nal law, but were in­tended as syn­onyms. More im­por­tant, the ad­jec­tive “high” does not mean “very bad,” but rather that the crimes are com­mit­ted by high gov­ern­ment of­fi­cials in the course of their du­ties. This was a stan­dard English us­age dat­ing back at least to late me­dieval and early mod­ern im­peach­ments, and well un­der­stood by the Framers.

Crimes and mis­de­meanors are thus “high” when they re­late to the pres­i­dent’s ex­er­cise of the dis­tinc­tive du­ties of his of­fice. They may be crimes in the sense that they are found in the statute books—but high crimes and mis­de­meanors may go be­yond the US Code. High crimes and mis­de­meanors are pres­i­den­tial ac­tions that con­tra­dict, un­der­mine, and dero­gate democ­racy and the rule of law. They are ac­tions that weaken the lib­erty and equal­ity of in­di­vid­u­als and the ca­pac­i­ties of other branches of gov­ern­ment.4 The ju­ris­dic­tion

4There was a highly tech­ni­cal de­bate in the 1970s be­tween Raoul Berger and the his­to­rian Clay­ton Roberts over whether high crimes and mis­de­meanors in Stu­art Eng­land had to be acts al­ready un­der­stood as un­law­ful un­der some le­gal source or could be purely po­lit­i­cal acts. See Clay­ton Roberts, “The Law of Im­peach­ment in Stu­art Eng­land: A Re­ply to Raoul Berger,” The Yale Law Jour­nal, Vol. 84, No. 7, p. 1419 (June 1975). The two agreed, how­ever, that high crimes and mis­de­meanors did not have to be statu­tory or com­mon-law crimes. And both ac­knowl­edged that the House of Com­mons fre­quently im­peached politi­cians for acts not oth­er­wise crim­i­nal. Roberts ar­gued that such im­peach­ments were not ac­cepted by the House of Lords. of im­peach­ment, Alexan­der Hamil­ton wrote in Fed­er­al­ist No. 65, cov­ers

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.

This def­i­ni­tion of­fers sup­port for im­peach­ment pro­ceed­ings against An­drew John­son in 1868 and Richard Nixon in 1974. Hamil­ton’s ex­e­ge­sis of­fers less sup­port for the im­peach­ment of Bill Clin­ton in 1998. Clin­ton was im­peached for pro­vid­ing false tes­ti­mony while in of­fice to a grand jury about his sex­ual re­la­tion­ship with Mon­ica Lewin­sky and thereby ob­struct­ing jus­tice in re­la­tion to a civil suit from Paula Jones. Con­ceiv­ably it could be main­tained that the affair with Lewin­sky was an abuse of the pres­i­den­tial of­fice, and that the false tes­ti­mony was there­fore an im­peach­able of­fense. But the bet­ter read­ing is that the charges were es­sen­tially for pri­vate con­duct that did not im­plic­itly harm “so­ci­ety”—which was a large part of the rea­son Clin­ton was ac­quit­ted by the Se­nate.

What might con­sti­tu­tion­ally grounded ar­ti­cles of im­peach­ment against Don­ald Trump look like? The most clearcut one would be based on pub­lic cor­rup­tion, in­clud­ing con­flicts of in­ter­est and re­ceipt of for­eign emol­u­ments. Be­liev­ing—in­cor­rectly—that the pres­i­dent “can’t have a con­flict of in­ter­est,” Trump is us­ing his of­fice to en­rich him­self and mem­bers of his fam­ily. His “win­ter White House,” Mar-aLago, is a pri­vate club that he owns and that charges a $200,000 ini­ti­a­tion fee for mem­bers to get ac­cess to him, his head-of-state guests, and his staff. Mem­ber­ship fees go as high as $350,000 at his Bed­min­ster, New Jersey, golf club, where Trump spent his Au­gust va­ca­tion. One of his first acts as pres­i­dent was a di­rec­tive re­vers­ing a 2015 de­ci­sion by the En­vi­ron­men­tal Pro­tec­tion Agency un­der the Clean Water Act that would have sig­nif­i­cantly raised water costs at these and other golf cour­ses in which he has in­vested more than $1 bil­lion over the past ten years.

Trump has pro­vided free ad­ver­tis­ing for prop­er­ties he owns by vis­it­ing them on more than seventy-five days so far, ap­prox­i­mately a third of the days he has been in of­fice. Mean­while, busi­ness­peo­ple from around the world are ad­mit­ted to meet­ings in the Oval Of­fice with the im­plicit pos­si­bil­ity of present or fu­ture gain from deal­ings with his fam­ily’s busi­nesses.

When for­eign of­fi­cials stay in a Trump ho­tel or part­ner with the com­pany he still owns, they are also giv­ing him an emol­u­ment—that is, a pay­ment—in vi­o­la­tion of Ar­ti­cle I, Sec­tion 9, Clause 8 of the Con­sti­tu­tion. The clause says that “no Per­son hold­ing any Of­fice of Profit or Trust un­der [the United States], shall, with­out the Con­sent of the Congress, ac­cept of any present, Emol­u­ment, Of­fice, or Ti­tle, of any kind what­ever, from any King, Prince, or for­eign State.” This ar­chaic term rep­re­sents a pro­found con­cern of the founders that, as Hamil­ton wrote in Fed­er­al­ist No. 22, “one of the weak sides of re­publics, among their nu­mer­ous ad­van­tages, is that they af­ford too easy an in­let to for­eign cor­rup­tion.” One of Trump’s lawyers, Sheri Dil­lon, has claimed an ex­emp­tion from the emol­u­ments clause for what she calls “fair value ex­change.” In other words, if Trump doesn’t over­charge cus­tomers, the pay­ment is not an emol­u­ment but sim­ply part of a busi­ness trans­ac­tion. No such ex­cep­tion ap­pears in the Con­sti­tu­tion, and the word “emol­u­ment” in the eigh­teenth cen­tury cov­ered fees for ser­vices, not just gifts. But even if such an ex­cep­tion were to be read anachro­nis­ti­cally into the word, ev­i­dence sug­gests that com­mer­cial ex­changes with sit­ting heads of state nec­es­sar­ily re­flect the value of po­lit­i­cal in­flu­ence.

These kinds of con­flicts are among the most rou­tine and en­demic forms of po­lit­i­cal cor­rup­tion in many coun­tries. In Italy, Sil­vio Ber­lus­coni is es­ti­mated to have earned prof­its of more than a bil­lion eu­ros from his terms as prime min­is­ter; he did this by al­low­ing his tele­vi­sion net­work Me­di­aset to charge slightly more for ad­ver­tis­ing than its state-owned com­peti­tor, RAI.5 Trump is us­ing his pub­lic of­fice for pri­vate gain in a sim­i­lar way. Ac­cord­ing to The Wall Street Jour­nal, the Trump In­ter­na­tional Ho­tel in Wash­ing­ton, D.C., has raised its rates more than 50 per­cent in the months since he was elected, and now charges con­sid­er­ably more than com­pa­ra­ble ho­tels.

In any case, Trump has al­ready re­ceived for­eign emol­u­ments that go be­yond any fair ex­change, in­clud­ing valu­able in­tel­lec­tual prop­erty rights from the Chi­nese gov­ern­ment for his busi­ness and his daugh­ter’s—rights he was de­nied be­fore he be­came pres­i­dent. Was this for­eign emol­u­ment a re­ward for Trump drop­ping his ini­tial hints at aban­don­ing the US gov­ern­ment’s long­stand­ing one-China pol­icy? Is Trump’s friend­li­ness to­ward Philip­pine Pres­i­dent Ro­drigo Duterte re­lated to his li­cense to build a $150 mil­lion Trump Tower in Manila? Is his be­nign view of

Re­cep Tayyip Er­doğan’s crack­down a con­se­quence of his deals in Turkey? There is no way to dis­en­tan­gle per­sonal and pub­lic in­ter­est in these and other in­stances. The pres­i­dent’s un­prece­dented re­fusal to in­su­late him­self from for­eign pay­ments un­der­mines the in­tegrity of his for­eign pol­icy, even if self-in­ter­est plays no part in his con­scious de­ci­sion-mak­ing. Trump could eas­ily have avoided this pit­fall by sell­ing busi­ness as­sets and putting his wealth in a blind trust for the du­ra­tion of his pres­i­dency, as his pre­de­ces­sors have done.

A sec­ond plau­si­ble ar­ti­cle of im­peach­ment flows from Trump’s un­der­min­ing democ­racy by cov­er­ing up dis­tor­tion of the elec­toral process and, po­ten­tially, re­ward­ing a for­eign state that in­ter­fered in it. Sub­vert­ing the 1972 elec­tion and cov­er­ing it up after­ward was the core of the im­peach­ment case against Richard Nixon. Even if col­lu­sion dur­ing the cam­paign is not it­self treated as im­peach­able, post-in­au­gu­ral ac­tions taken as a re­sult of ben­e­fits re­ceived from Rus­sian-or­ches­trated leaks would count as im­peach­able of­fenses. Trump’s ef­forts to ob­struct jus­tice or to com­pen­sate Vladimir Putin for help­ing him get elected would cer­tainly fall into this cat­e­gory.

Ev­i­dence for this charge is not suf­fi­cient at present. But it con­tin­ues to emerge on a daily ba­sis, much of it pro­vided by the pres­i­dent’s own tweets and in­ter­views. Trump’s ac­knowl­edg­ment that he fired James Comey be­cause he would not drop the FBI’s in­ves­ti­ga­tion of the Rus­sia scan­dal is as close to a pres­i­den­tial con­fes­sion of ob­struc­tion of jus­tice as we are likely to see. Trump re­port­edly dic­tated his son’s mis­lead­ing, in­com­plete state­ment about his meet­ing with a se­nior Rus­sian lawyer and sev­eral other shad­owy fig­ures with in­tel­li­gence con­nec­tions to re­ceive com­pro­mis­ing in­for­ma­tion on Hil­lary Clin­ton. Pres­sure on At­tor­ney Gen­eral Jeff Ses­sions to re­sign for fail­ing to act as a kind of per­sonal lawyer to Trump and re­ports of ef­forts to un­der­mine Spe­cial Coun­sel Robert Mueller point in the same di­rec­tion. Or­der­ing the fir­ing of Mueller might be one of the few ac­tions that would prompt mem­bers of the Repub­li­can Party to con­sider im­peach­ment.

A third im­peach­ment ar­ti­cle, less clear-cut than the first two, could be based on Trump’s sys­tem­atic at­tacks on demo­cratic process and in­sti­tu­tions. This would in­clude his re­fusal to dis­charge obli­ga­tions of his of­fice while at­tack­ing the con­sti­tu­tional sep­a­ra­tion of pow­ers.

Con­sti­tu­tional dis­obe­di­ence was at the cen­ter of the im­peach­ment case against An­drew John­son. In de­fi­ance of his con­sti­tu­tional duty to ex­e­cute the laws, John­son was in­ten­tion­ally fail­ing to en­force the laws that were sup­posed to guide Re­con­struc­tion—in par­tic­u­lar the law de­signed to force the south­ern states to let African-Amer­i­cans vote and to rat­ify the Four­teenth Amend­ment. The Repub­li­can-con­trolled Congress, aim­ing to pro­tect Abra­ham Lin­coln’s holdover sec­re­tary of war, Ed­win Stan­ton, en­acted the Ten­ure-of-Of­fice Act, which re­quired leg­isla­tive per­mis­sion for the pres­i­dent to dis­miss fed­eral of­fi­cials con­firmed by the Se­nate. An­tic­i­pat­ing pos­si­ble dis­obe­di­ence by John­son, the law an­nounced that vi­o­lat­ing it would con­sti­tute a “high crime and mis­de­meanor.”

The Ten­ure-of-Of­fice Act, which in­ter­posed a leg­isla­tive veto on the pres­i­dent’s Ar­ti­cle II author­ity to dis­miss gov­ern­ment of­fi­cials, was al­most cer­tainly an un­con­sti­tu­tional vi­o­la­tion of the sep­a­ra­tion of pow­ers. John­son as­serted as much in ve­to­ing the bill, but Congress over­rode the veto. John­son then pro­ceeded to fire Stan­ton, who locked him­self in his of­fice, claim­ing pro­tec­tion un­der the act. The House im­peached John­son, charg­ing him with vi­o­lat­ing the law and, more forthrightly, with block­ing rat­i­fi­ca­tion of the Four­teenth Amend­ment by fail­ing to en­force Re­con­struc­tion. John­son con­tended that he could not be im­peached for fail­ing to fol­low an un­con­sti­tu­tional law. The House im­peach­ment man­agers re­joined that only the Supreme Court, not the pres­i­dent, could de­clare a valid law un­con­sti­tu­tional.

John­son’s Se­nate ac­quit­tal, by a sin­gle vote, hinged in part on his as­ser­tion of his in­de­pen­dent right to obey the Con­sti­tu­tion. At the same time, the ac­quit­tal was the re­sult of po­lit­i­cal com­pro­mise. John­son with­drew his op­po­si­tion to the Four­teenth Amend­ment, which was then rat­i­fied by the re­main­ing south­ern states. The im­peach­ment process there­fore vin­di­cated the prin­ci­ple of pres­i­den­tial fi­delity to the law and the sep­a­ra­tion of pow­ers—at least on one plau­si­ble read­ing.

Don­ald

Trump’s pat­tern of chal­leng­ing the in­de­pen­dence of the ju­di­ciary was set dur­ing the cam­paign with his at­tacks on the judge han­dling the civil law­suits against Trump Univer­sity, whom he called “Mex­i­can.” Af­ter Trump was sworn in, he at­tacked a fed­eral judge in Seat­tle who ruled against his travel ban as a “so-called judge.” In April, he threat­ened to “break up the 9th Cir­cuit,” be­cause of its rul­ing block­ing his ad­min­is­tra­tion’s ef­forts to deny fed­eral fund­ing to sanc­tu­ary cities.

Trump’s par­don of Ari­zona sher­iff Joe Ar­paio on Au­gust 25 was an even more con­crete man­i­fes­ta­tion of this dis­re­spect for ju­di­cial in­de­pen­dence and the rule of law. Ar­paio had been con­victed of crim­i­nal con­tempt for will­fully vi­o­lat­ing a fed­eral court or­der to cease un­con­sti­tu­tional detention of sus­pected un­doc­u­mented im­mi­grants. By par­don­ing him, Trump not only sig­naled his ap­proval of an elected pub­lic of­fi­cial openly flout­ing the Con­sti­tu­tion. He thwarted the ju­di­ciary’s author­ity to say what the law is and to en­force its judg­ments. The par­don, though for­mally within Trump’s ex­ec­u­tive author­ity, in fact un­der­cut the very con­sti­tu­tional struc­ture that cre­ates pres­i­den­tial power in the first place. Such chal­lenges to ju­di­cial in­de­pen­dence can­not be dis­missed as mere ex­pres­sions of pique. They are an im­por­tant fea­ture of ris­ing au­thor­i­tar­i­an­ism in Poland, Turkey, and else­where. The same is true of at­tacks on free­dom of the press and Trump’s at­tempts to con­strain the First Amend­ment. Declar­ing the press “the en­emy of the peo­ple,” Trump has un­law­fully ex­cluded me­dia out­lets he dis­likes such as CNN and The New York Times from of­fi­cial brief­ings. That vi­o­lates the con­sti­tu­tional man­date that the gov­ern­ment treat the press neu­trally re­gard­less of its view­point. Mem­bers of his ad­min­is­tra­tion have pres­sured Time Warner, CNN’s par­ent com­pany, to fire jour­nal­ists—an­other clas­sic strat­egy for de­struc­tion of me­dia free­dom in places like Turkey, Rus­sia, and Venezuela.

These are not the only pos­si­ble ar­ti­cles of im­peach­ment. An­other is defama­tion—start­ing with a tweet in which Trump falsely ac­cused Barack Obama of tap­ping his phones. Be­cause pres­i­dents while in of­fice are im­mune from civil law­suits re­gard­ing their of­fi­cial acts, im­peach­ment is the only im­me­di­ate rem­edy for a pres­i­dent who makes un­sup­ported charges of crim­i­nal­ity against his pre­de­ces­sor. Trump also made defam­a­tory at­tacks on James Comey in a re­cent New York Times in­ter­view, ac­cus­ing Comey of ly­ing to Congress un­der oath and of at­tempt­ing to black­mail him by threat­en­ing to ex­pose the dossier on him pre­pared be­fore the elec­tion by a for­mer MI6 of­fi­cer.

Fi­nally, there are of­fenses Trump has pro­posed com­mit­ting but has not yet com­mit­ted. In ad­di­tion to the pos­si­bil­ity of dis­miss­ing Mueller, he has sug­gested that he might pre­emp­tively par­don aides or rel­a­tives. If such par­dons were is­sued in or­der to pro­tect Trump him­self, they would amount to a clear ef­fort to ob­struct jus­tice. Un­like a self-par­don, which would be in­ef­fec­tual be­cause no judge would re­gard it as valid, par­dons of oth­ers would al­most cer­tainly be re­spected by the courts. The proper rem­edy for abuse of the par­don power is im­peach­ment—as Madi­son specif­i­cally pointed out at the Vir­ginia rat­i­fy­ing con­ven­tion.

It is strik­ing how much of the ev­i­dence sup­port­ing the case for Trump’s im­peach­ment comes from his own words: not tes­ti­mony un­der oath or sub­poena, but ad­mis­sions he has vol­un­teered. While hardly truth­ful by na­ture, Trump finds it hard to sup­press a streak of can­dor about his own mo­tives. Licht­man cites Nixon’s ad­vice to Ron­ald Rea­gan, of­fered by let­ter dur­ing the Iran-con­tra scan­dal: “Don’t ever com­ment on the Iran–Con­tra mat­ter again. Have in­struc­tions is­sued to all White House staffers and Ad­min­is­tra­tion spokes­men that they must never an­swer any ques­tion on or off the record about that is­sue in the fu­ture.” This would be equally good ad­vice for Don­ald Trump, were he ca­pa­ble of tak­ing it.

—Au­gust 30, 2017

Don­ald Trump

Don­ald Trump with Ari­zona sher­iff Joe Ar­paio at a cam­paign rally in Iowa, Jan­uary 2016

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