The New York Review of Books

Noah Feldman and

The Case for Impeachmen­t by Allan J. Lichtman

- Noah Feldman and Jacob Weisberg


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 lawfareblo­­e-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.


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.


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.”


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.


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

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