By Philip Bobbitt
March 12, 2019
IDEAS
Bobbitt is a co-author, with Charles L. Black Jr., of Impeachment: A Handbook.

Impeachment should be a matter of decision according to law. That ought to be a truism, because the purpose of impeachment is to protect the Constitution which specifies legal bases for impeachment: “Treason, Bribery or other high Crimes and Misdemeanors.”

If the president were to execute a particular foreign policy decision in exchange for financial benefit to him by the affected country or if he were to offer a district judge a promotion to the circuit bench in exchange for a favorable ruling in a trial, either would amount to bribery. However this is a highly fact-specific inquiry. The prosecutors of the impeachment trial would have to show that the president acted on the basis of self-interest and not because he thought the foreign policy should be changed on its merits or because he thought the judge really should be elevated.

Treason is even more narrowly defined by the Constitution. Article III, Sec. 3 provides that treason consists in levying war against the United States or in adhering to their enemies. Construing this text, Chief Justice John Marshall concluded in the Burr case, “there must be a war, or the crime of levying it cannot exist.” Treason is only applicable in wartime.

Because bribery is so difficult to prove and the grounds for treason are so narrow, nine days before the Framers signed the Constitution, George Mason expressed the concern that all “attempts to subvert the Constitution” were not covered and he pressed for the addition of a final, broad category that would serve as the basis for impeachment. He suggested, “maladministration.” James Madison, however, objected that “so vague a term will be equivalent to a tenure during the pleasure of the Senate.” Mason therefore withdrew “maladministration” and substituted the phrase, “other high Crimes and Misdemeanors. Thus the option of a vote of confidence of the kind found in so many parliamentary systems was considered and rejected by the Constitutional Convention.

This history suggests that certain kinds of differences with the president, such as disagreement with his policy views or frustration with his public rhetoric or lack of confidence in his performance cannot form the basis of impeachment. But if not policy differences or political disagreements, what are “other high Crimes and Misdemeanors”? The key to construing this otherwise elusive phrase lies in the word, “other”. The “high” crimes that serve as the basis for impeachment must be crimes like treason and bribery. They must be extremely serious constitutional crimes, acts that are subversive of our basic political and governmental processes.

Suppose the president were to move to Saudi Arabia so he can have four wives and were to propose to conduct the office of the presidency by email from there. This would not be a crime; I doubt it could be made a crime. But it is certainly a constitutional crime, an act of such gross and wanton neglect of duty that it would provide a basis for removal.

Perhaps the best short definition of the grounds for impeachment is that the offense must be a crime against the perpetuation of the fundamental constitutional well-being of the United States. This may sound uncontroversial, but in our current political and cultural environment the clarity of that conclusion has been clouded by number of claims.

Perhaps most insidious of these is that impeachment is a “political question,” not a legal one. After all, the Congress is a political body.

The Constitution, however, specifies legal grounds, not political ones as being the only basis for impeachment and removal. The text does not say that the president can be removed whenever one half of the House and two thirds of the Senate want to do so.

The Federalist Papers repeatedly assert that only a crime against the safety and integrity of the State can serve as a predicate for impeachment and removal. It is important that the Senate is commanded by the constitutional text to “try” the case referred to it by the House; that Senators must take a special oath to apply the law of the Constitution to the matter; and that the entire proceedings are presided over by the Chief Justice in special convocation. In Federalist #65, Alexander Hamilton is at pains to show that the Senate can in fact act in, “their judicial character as a court for the trial impeachment.”

A second widely repeated fallacy is that the grounds for impeachment are whatever the House takes them to be by voting an indictment. But if the grounds for impeachment were whatever the House chose, then an official could be impeached for failing to take a religious oath — in direct contradiction of Article VI. “High Crimes and Misdemeanors” could be interpreted so as to function as a Bill of attainder or as an ex post facto law, both of which are prohibited by Article I, Sec. 9.

A third fallacy is that the commission of a crime is a necessary condition precedent to impeachment, or conversely that any serious statutory crime can serve as the basis for impeachment. On the contrary, as the House Judiciary Committee concluded in 1974, “the crucial factor is the significance of its effect upon our constitutional system…”

How do these rules play out in the current context? Was the hacking of the Democratic National Committee in 2016 legally comparable as a predicate for impeachment to the Watergate burglary of the DNC in 1972? Of course it was, although we don’t as yet know whether the president or his campaign was implicated. But we should bear in mind that even if Donald Trump did not know about the cyber burglary or direct persons to conduct or facilitate it, if he contrived to use his office to thwart an investigation into the hacking, the Watergate precedent applies. After all, there was no evidence that Nixon knew about the burglary beforehand.

What about the digitalization of disinformation by Russian agents in 2016? If implicated in this activity, could President Trump be impeached for the activities of candidate Trump? George Mason observed during the Constitutional Convention that a president, “who has practiced corruption & by that means procured his appointment in the first instance,” might properly be impeached.

Article I, Sec. 9 of the Constitution contains the emoluments clause that prohibits any federal officeholder from accepting any payment or gift of any kind from a foreign state without the consent of Congress. Can a violation of this provision serve as a predicate for impeachment? The answer turns on whether the violation of the clause affects US policy – – say, leniency towards Saudi Arabia or Russia because of payments or promises of rewards made to the Trump Organization that are not provable bribes are clearly earnings outside the president’s salary.

Can the president be impeached owing to his promise or his grant of pardons? Suppose a president were to announce and follow a policy of granting full pardons, in advance of indictment or trial all federal agents or police who killed anybody in the line of duty in the District of Columbia, whatever the circumstances and however unnecessary the killing. Such an act is not unequivocally unconstitutional, given the sweep of the president’s pardon power yet no one should doubt that such a policy would be a breathtaking abuse of executive authority of the kind and on a scale that plainly, corrupts or subverts the political and governmental process.

Unless the Congress rigorously adheres to the legal standards specified by the Constitution, impeachment will be perceived as little more than a partisan tool for undermining elected officials and overturning election results. In the last 20 years we have drifted toward making impeachment a political decision, determined by polls and calculations of partisan advantage. That course should be reversed before it further undermines the Constitution that the impeachment clause is meant to protect.

We must reclaim for impeachment the status of a legal process in which we are guided by careful and rigorously argued attention to text, history, structure, doctrine, prudence and “ethos” — the concern for the primacy of the rule of law.

 

Contact us at editors@time.com.

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