2017-07-23 23:42:26 UTC
People are asking the wrong questions about what the president did.
By Jonathan Cohn
A serious conversation about impeaching President Donald Trump is
underway. But it may be going in the wrong direction already.
Even before Wednesday’s appointment of a special counsel to investigate
ties between the Trump campaign and Russia as well as possible attempts
to conceal them, lawyers were all over television arguing whether
Trump’s actions to date constituted an “obstruction of justice” that
would earn a conviction in a normal criminal proceeding. They
particularly focused on the president’s reported request that former FBI
Director James Comey drop an investigation into Trump’s former national
security adviser, Michael Flynn.
But impeachment is not a normal criminal proceeding, and official
constitutional grounds for removal go beyond whether a president has
broken the law. On the contrary, the Constitution reserves impeachment
and removal for instances of “Treason, Bribery, or other high Crimes and
There’s a reason for that. The document’s framers weren’t out to punish
crime when they wrote the impeachment clause. They were trying to
construct a mechanism for removing a threat to democracy.
The question for Congress ― and eventually, the public ― is whether,
given available evidence, Trump constitutes that kind of threat.
Impeachment is about protecting constitutional democracy.
The Constitution is reasonably specific about how Congress goes about
removing a president. The process begins in the House, with the
Judiciary Committee (or some other committee that Congress designates)
drawing up articles of impeachment specifying the president’s alleged
offenses. If the committee approves the articles, the full House
considers them. On the floor, as in committee, a mere majority is
sufficient for approval.
Such a vote ends the actual impeachment phase, which is roughly akin to
an indictment. The question of whether to “convict” falls to the Senate,
where deliberations can appear more judicial than political ― with the
House sending over “managers” who serve the role of prosecutors, and the
president sending his lawyers to defend him. The chief justice of the
Supreme Court sits as the presiding officer, ruling on procedural
matters, although the Senate can overrule the chief justice by majority
Eventually, the Senate withdraws to closed session to deliberate, and
then returns to vote in public, with a hefty two-thirds majority ― 67
senators, if the full Senate is present ― necessary to expel the
president from office and power.
Yet the Constitution is a lot less specific about which transgressions
actually warrant removal. Bribery and treason are clearly defined
enough, but the phrase “high crimes and misdemeanors” is a different story.
The framers added the phrase to the impeachment clause at the
Constitutional Convention, when George Mason feared that provisions
against bribery and treason alone would not sufficiently contain a
despotic executive, but James Madison thought Mason’s choice of phrase,
“maladministration,” was overly broad.
“I take the idea to be that they wanted to deal with serious offenses
against the state, not petty illegality,” Josh Chafetz, professor of law
at Cornell, explained over email on Wednesday.
The point, Chafetz said, was to deal with transgressions that “had to do
with aggrandizement of the office, trampling on norms of governance,
etc. They didn’t have to do with contempt in a civil case, or other
small-bore offenses that were largely unrelated to office.”
Clintonian and Nixonian offenses are different.
That standard prevailed in the late 1990s, during the impeachment of
former President Bill Clinton. Nobody questioned that Clinton had broken
the law when, during a deposition for a civil case, he lied under oath
about his sexual relationship with a White House intern. He was guilty
But after the House passed articles of impeachment, the Senate fell well
short of impeaching Clinton, mainly because even Republicans came to
agree with Democrats that he was not guilty of any offense that
qualified as a “high crime.” He had lied to conceal the existence of a
private relationship that many people thought should never have become
public in the first place.
The circumstances were very different in 1974, when the House Judiciary
Committee was preparing articles of impeachment for former President
Richard Nixon. Over the course of two years, thanks to a combination of
intrepid journalism and an aggressive special counsel, it became
apparent that Nixon had conspired with his aides to cover up ― and then
suppress the investigation of ― efforts to spy on and sabotage Democrats
in the 1972 election.
A violation of the criminal law is neither necessary nor sufficient to
make something a high crime or misdemeanor. Josh Chafetz, professor of
law at Cornell
To this day, it remains unclear whether Nixon actually ordered the
Watergate break-in that gave the scandal its name. (For a refresher,
read Dylan Matthew’s comprehensive guide to Watergate at Vox.)
But recordings captured Nixon telling his aides he wanted the FBI to
back off investigation of a crime ― and not just of any crime, but of an
attempt to tamper with a presidential election. They were also evidence
that Nixon was using his control of federal law enforcement to shield
himself and his associates from accountability.
This week’s New York Times revelation ― that Comey has a memo, written
contemporaneously, about Trump urging him to back off the Flynn
investigation ― suggests Trump may have engaged in behavior strikingly
similar to Nixon’s, although he has denied wrongdoing. More such
evidence may emerge, whether through congressional testimony or the
special counsel investigation now getting underway.
It still might not be enough to win a conviction in court, given the
technical definition of “obstruction of justice” and how it would apply
to the president, who occupies a unique position overseeing federal law
enforcement. But, as Harvard Law Professor Noah Feldman wrote this week
at Bloomberg View, it could still be an “obvious and egregious abuse of
power” ― the kind that would have eventually led to Nixon’s removal from
office, had he not resigned first.
“A violation of the criminal law is neither necessary nor sufficient to
make something a high crime or misdemeanor for impeachment purposes,” he
said. A small crime is not automatically an impeachable offense, he
argued. Alternately, he said, someone could do something immoral that,
while technically legal, could disqualify them from staying in office.
Impeachment always comes down to politics.
In the end, it wasn’t principle that drove Nixon from the presidency. It
was politics. He resisted resignation as long as he could, relenting
only when a group of loyal Republicans told him, in person, he didn’t
have the votes to survive the coming impeachment proceedings.
And so it will be now. Trump’s ability to survive the coming
investigation and what it produces will ultimately depend on whether
Republicans are willing to stand by him.
So far, by and large, they have ― shielding him from inquiries on
everything from Russia to his tax returns ― perhaps because they believe
his continued presence in the White House offers their best opportunity
to pass their legislative agenda, or perhaps because they are not yet
ready to openly challenge a party leader who retains the enthusiastic
support of so many Republican voters.
For better or worse, this, too, is how the framers wanted it.
“The trappings of legality serve to discipline the proceedings and to
prevent them from becoming merely a tool of partisan warfare,” Nicholas
Bagley, law professor at the University of Michigan, said on Wednesday.
“At the same time, the House and the Senate ― not judges ― are charged
with carrying out this judicial-style process. The Constitution’s
drafters knew that political considerations would influence legislators’
judgments. The open-endedness of the ‘high crimes and misdemeanors’
phrase affords legislators a lot of room to designate those offenses
that, under the circumstances, warrant impeachment.”
Of course, political conditions change. If the special counsel produces
even more powerful evidence of Trump’s wrongdoing, public outrage might
become too overwhelming for this Republican Congress to ignore.
But a lot depends on whether the conversation about Trump’s future in
office focuses on the right question: whether, through his actions, he
has seriously undermined the rule of law or democratic process.
Trumpers scream, "Where is the evidence Trump broke the law?! And, what
specific laws might he have broken?! You leftist scumbags are making a
mountain outta' a mole hill!! Fuck you!!!"
If it is perceived that Trump's actions have "undermined the rule of law
or democratic process," it will not necessarily be nailed down to a
specific law being violated, but more likely, as it was in the process
of impeachment in the Watergate scandal, depend largely on that
perception by congress and the public. It came down to politics and
perception then, and it's probably heading the same direction with
Trump's alleged wrongdoings.
In the end, as the article deftly points out, that despite whether
illegalities are legitimized by the letter of the law, or by the
congressional and public's interpretations, the most important action is
to defend the framework of our founding fathers - to preserve the tenets
of our Constitutional democratic process.
That being so, any American who claims he or she really loves the letter
and spirit of that process, Left or Right, who might also make it a
habit to claim to "love" America so very much - even more than the
opposition - has a moral or patriotic obligation to support official
investigations that will help determine the facts and fallacies.
Any American who dismisses such investigations as useless, as a "witch
hunt," because they are convinced Trump and cohorts can be trusted with
their claims of innocence, that ultimately, if their faith is so high
it'll all amount to nothingness, they should therefore welcome the
investigations to determine that the "Left" has conducted a witch hunt -
and delight in making them the laughingstock.
It would seem that if his followers are correct, the investigations will
backfire and perhaps strengthen Trump's hand, and theirs. So, it would
seem, if they are correct it's all BS from the Left, it'll be a juicy
barbecued chicken picnic that's awaiting them as the investigations
Wings, drumsticks, or breasts? Or...shock, sadness, and great
embarrassment for his supporters? Finger-lickin' good or ass-kicking bad?