Lessons from history
Congress has wide leeway in determining what offenses might be considered impeachable.
As Congress and the public ponder the latest revelations about President Trump — that he allegedly asked FBI Director James Comey to drop an investigation of ousted national security adviser Michael Flynn, and fired Comey after he refused — some lessons might be drawn from recent presidential history.
When the House Judiciary Committee voted to impeach President Richard Nixon in 1974, the central charge was that he had obstructed justice by interfering with government investigations of the Watergate break-in — by lying to investigators, withholding evidence, paying off witnesses and enlisting the CIA to halt the FBI’s probe of the scandal.
Nearly a quarter of a century later, when the House voted to impeach President Bill Clinton, one of the charges was that he had obstructed justice by encouraging witnesses to lie in a sexual harassment suit against him by Paula Jones, a former Arkansas state employee, and by arranging employment for Monica Lewinsky, his alleged ex-mistress, so she would not testify against him in Jones’ suit.
As both cases illustrate, obstruction of justice — interfering in official proceedings with “corrupt intent” — is among the “high crimes and misdemeanors” that can lead to impeachment and the possible removal of the president and other high-ranking federal officials and federal judges.
The episodes also demonstrate that Congress has great leeway in defining an impeachable offense.
“It is solely up to Congress how to interpret (high crimes and misdemeanors) and what the proceedings should be in the House and the Senate,” said David Sklansky, a Stanford law professor.
The allegation against Trump is based on the meeting he had with Comey in February, a day after the White House dismissed Flynn for lying to Vice President Mike Pence about Flynn’s meeting with the Russian ambassador.
According to news accounts of a memorandum Comey wrote about the meeting, the president told everyone else to leave the room, and then asked Comey to end the investigation into Flynn’s dealings with Russia. The White House has denied the accounts.
Zachary Price, a law professor at UC Hastings in San Francisco, said there were parallels between Trump’s alleged conduct and Nixon’s.
“The president is the country’s chief law enforcement officer, in some sense, but he’s using that authority to arguably obstruct an investigation of wrongdoing by him or his close associates,” Price said. “I think it’s up to Congress to decide whether that’s an abuse of office that should count as obstruction.”
Impeachment, Price said, “is a political act that requires a certain legal judgment. The politics and the law go together.”
But some general standards have been developed in more than two centuries of impeachment proceedings, mostly involving federal judges, said Elizabeth Goitein of the Brennan Center for Justice at New York University.
Since 1803, 15 judges have been impeached and eight removed from office — some for abuse of office, some for drunkenness on the bench, and the most recent, U.S. District Judge Thomas Porteous of Louisiana, for bribery and false statements that led to a bipartisan vote to oust him in 2010.
“It has to be conduct that is a violation of public trust and bears on the responsibilities of office in some way,” Goitein said.
“I don’t think there’s any question that if Trump in fact attempted to derail the Russia investigation, that would be an impeachable offense. I’m not saying he will be impeached,” just that it would satisfy the historical standard, she said.
In a criminal case, prosecutors have to prove guilt beyond a reasonable doubt, a demanding standard. In impeachment proceedings, “there is no standard of proof,” Goitein said. “It is up to the individual conscience of each senator” to decide whether to remove an official whom the House has voted to impeach.
Richard Epstein, an NYU law professor who also has a fellowship at Stanford’s Hoover Institution, said Trump’s dismissal of Comey was “stupid” but did not obstruct justice. Even if the president wanted to shut down the Russia investigation, Epstein said, he surely knew that “it not only will continue but intensify” after the firing.
Impeachment requires a majority vote in the House. Removal requires a two-thirds majority vote in the Senate.
As for the two most recent presidents to face congressional inquiries, Nixon resigned before being impeached by the full House. Clinton was acquitted by the Senate, and had earlier settled Paula Jones’ suit for $850,000.
Meanwhile, an investigation into possible Russian connections with Flynn and others in Trump’s presidential campaign escalated dramatically Wednesday when Deputy Attorney General Rod Rosenstein appointed Robert Mueller, the former FBI director and former U.S. attorney in San Francisco, as a special counsel to conduct a probe independently of Congress.