Congress worked. The Senate Watergate Committee uncovered key facts about President Nixon’s misconduct, and the Senate Judiciary Committee forced the appointment of the special Watergate prosecutor. The House Judiciary Committee voted on a bipartisan basis to hold the president accountable. The press worked. Led by two Washington Post cub reporters, probably too young to realize what it meant to take on a president, it was bold in searching out the facts and relentless in reporting them.
Will this happen again if we grapple with the Trump presidency? Will the other checks fall into place, including the courts and the Congress? Will the right-wing press, a mouthpiece for President Trump, find its footing on the truth? Will the bulk of the American people still put country over party and person? The answers to these questions are unknown, but they may be the key to whether America retains its vibrant democracy.
A fair, lawful, bipartisan impeachment inquiry into President Trump involves analyzing, with a clear head and heart, what he has done and what the Constitution requires. It means agreeing that we do not know where it will take us and that we do not know what the votes will be, agreeing to seek and accept the truth no matter what it turns out to be, whether it exonerates or inculpates the president. When we started the impeachment inquiry against President Nixon, nobody knew at the outset whether we had the votes in the committee, much less the House or the Senate, for impeachment. But we went ahead anyway, exploring the law and the facts in a responsible, honest manner.
An impeachment inquiry is not, and should not be, a “gotcha” proceeding. It’s a process for searching for and finding and airing the facts to determine whether they satisfy the constitutional requirements for overturning the results of an election and removing a president from office. As in a trial, you must put your case together fact by fact, legal argument by legal argument, and put it to a jury to decide. You simply work hard and trust the process. That’s how the House Judiciary Committee operated in 1974, and that is how impeachment should operate now. Obviously, you can’t start the process without evidence of significant and egregious presidential wrongdoing, but starting it is not the same thing as deciding the president should be impeached. Once begun, you must be willing to say we can’t impeach if the evidence or the law doesn’t stand up after a proper and thorough inquiry. Similarly, if the evidence and law do stand up, you must then be willing to say that we should impeach.
I know that in these partisan times, saying something like that sounds naïve. It’s clear that I do not like President Trump and that I think there is a great deal of evidence supporting his potential impeachment. But calling for an impeachment inquiry can work if we take what we did in the President Nixon impeachment as a model. I did not like Nixon very much, either, but “likes” and “dislikes” were put aside in favor of a process that was fair and honorable. I believe that we should embark on that process for President Trump—a man who I believe threatens our democracy.
The following chapters explore the constitutional law regarding impeachments, the three major charges against President Trump that I believe currently have the most evidentiary and legal support, and finally several other presidential misdeeds that may or may not warrant further inquiry. I want to add one important caveat: much of what I recount is from news reports and is not the product of a thoroughgoing congressional investigation by a committee using subpoena power. Moreover, new facts and details emerge constantly—facts that may help exonerate or inculpate the president—making it likely that within a matter of days, if not hours, portions of this book will have failed to include important developments—or become outdated. Nevertheless, I believe that the broad outlines of the story of President Trump’s abuses are clear—and mandate that we begin the important work of making sure that no president is above the law.
2
“Great and Dangerous Offenses”: The Standard for Impeachment
The framers of our Constitution knew that someday there would be a president who would threaten the foundations of our democracy. They didn’t know if his name would be Richard Nixon or Donald Trump, or what guise his misdeeds would take, but they knew that the American people would need a remedy. Waiting years until the next election to remove from office a president who engages in grave misconduct would pose a danger to the country. Thus, the framers provided for the removal of a president through impeachment, a centuries-old process with deep roots in British history.
The grounds for impeachment specified in the Constitution are grave ones that strike at the heart of our system of government: “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.”
Treason is defined in the Constitution. It means “levying War against [the United States], or … adhering to their Enemies, giving them Aid and Comfort” (Article III, Section 3). Bribery, although undefined, seemed relatively clear. It was well understood by the framers—and is generally well understood now, though as we will see briefly in Chapter 5, today’s federal criminal law governing bribery is very cramped.
But what are high Crimes and Misdemeanors? The phrase was added late in drafting the Constitution. When the framers first considered an impeachment clause at the Constitutional Convention in Philadelphia, they did not even debate before unanimously adopting a provision allowing impeachment for “malpractice or neglect of duty.” Later, however, some convention delegates had second thoughts. Pennsylvania’s Gouverneur Morris and South Carolina’s George Pinckney pushed to strike the entire provision, arguing there was no need for impeachment, that elections would solve the problem. Virginia delegate George Mason scoffed. “Shall any man be above justice?” he asked. “Above all, shall that man be above it who can commit the most extensive injustice?” James Madison, who played a pivotal role in drafting the Constitution and served later as our fourth president, could think of many reasons for an impeachment provision. It was “indispensable,” he said, arguing that a president might otherwise “pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Morris and Pinckney were beaten back. The impeachment clause would stay in the Constitution. A new version of the provision—closer to the one we know today—was offered, but solely for treason or bribery. Mason proposed adding “maladministration,” but his suggestion was rebuffed as too vague. He then suggested adding “high crimes and misdemeanors” to the impeachment clause.
Why was he so persistent? He realized—and the framers ultimately concurred—that an impeachment provision that dealt only with “treason” and “bribery” was not broad enough to encompass the various kinds of serious harm a president could inflict on the country. Mason warned there would be “many great and dangerous offenses” and “attempts to subvert the Constitution” that would not be covered by treason or bribery. These needed to be covered.
To drive home his argument, Mason pointed to the notorious contemporary example of Warren Hastings, the British governor general of India who was impeached by Parliament just a few months before the start of the Constitutional Convention. As Harvard Law School professor Cass Sunstein explains in his useful book Impeachment: A Citizen’s Guide, Hastings was accused of a wide variety of misdeeds, in particular personal corruption, maladministration, and “exercising arbitrary power, disregarding treaty obligations, selling favors, and engaging in fraud and corruption in making contracts.”
Mason worried that the behavior Hastings had exhibited and with which the framers were immediately familiar would not be impeachable under the phrasing of the constitutional provision as then written. He also pointed out that the Constitution banned bills of attainder, which the Supreme Court has defined as “legislative punishment, of any form or severity, of specifically designated persons or groups.” Congress, Mason noted, could not punish such wrongdoing by a particular president. Thus, “it is the more necessary to extend: the power of impeachments,” he
argued.
Mason wanted to expand the scope of impeachment to cover more kinds of executive misconduct, the kind that Hastings engaged in and that a bill of attainder would encompass. He ultimately proposed adding to treason and bribery the phrase “other high Crimes and Misdemeanors agst. the State.” The proposal was adopted, though the words “agst. the State” were later dropped.
The framers were practical people. They understood the dangers a president could pose, even in a four-year period. They had lived under a British monarch and had no illusions.
Flash forward almost two hundred years to the President Nixon impeachment proceedings. After much analysis, most Judiciary Committee members decided in 1974 that high crimes and misdemeanors—like treason and bribery—meant “injuries done immediately to the society itself,” as Alexander Hamilton explained in 1788 in Federalist paper No. 65. No criminal conduct, a bipartisan majority of the committee believed, was necessary to satisfy that standard.
This 1974 view is important in understanding what is impeachable, because it represents the only time in American history that the impeachment clause was deployed against a president in a principled and bipartisan way. The 1974 articles represent the one democratically valid example we have of a living, breathing interpretation of high crimes and misdemeanors and reflect the considered and heartfelt opinion of men and women who had real democratic responsibility and accountability as they lived through a constitutional crisis. The articles therefore should be accorded substantial weight.
In July 1974, the House Judiciary Committee approved three articles of impeachment on a bipartisan basis. (See Appendix II.) Article II listed the president’s acts that merited impeachment: he was charged with authorizing illegal wiretaps of journalists and White House staffers and using the information for his own political goals; ordering IRS audits of opponents of his Vietnam War policies (the Enemies List) as retaliation; allowing the creation of a special White House investigative unit (the Plumbers) to break into Daniel Ellsberg’s psychiatrist’s office to smear the man who had leaked the Pentagon Papers; and impeding lawful investigations into Watergate for purposes that had nothing to do with the welfare of the country. President Nixon, the Judiciary Committee said, “has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purpose of these agencies.”
Article I charged that President Nixon “prevented, obstructed, and impeded the administration of justice” with respect to the investigation and prosecution of those responsible for the Watergate break-in. President Nixon’s acts of impeding and obstructing included authorizing hush-money payments and offering presidential pardons to the burglars to keep them from telling the prosecutors the whole story; ordering the firing of the Watergate special prosecutor to prevent him from obtaining White House tapes (later shown to be extremely damaging to President Nixon) and to stymie his investigation; directing perjury by a top aide before a Senate committee; obtaining grand jury information from the Department of Justice and using that information to help aides avoid prosecution; and trying to get the CIA to stop the FBI’s investigation into the break-in, using a phony claim of national security. The very same acts that were impeachable as a cover-up were impeachable as an abuse of power in Article II.
Finally, Article III was adopted, with just two votes from Republicans. It involved, as we have seen, President Nixon’s scorn for the role of Congress in the impeachment process, in particular his failure to comply with subpoenas issued by the House Judiciary Committee for documents and tapes. If presidents could block an impeachment inquiry’s effort to get at the facts, they might be able to block impeachment altogether. All of this was “contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States,” as each of the articles concluded. In August 1974, after the tapes, including Nixon’s Oval Office smoking-gun conversations, were finally released to the Judiciary Committee as a result of a Supreme Court ruling, all the Republicans who had previously voted against the articles announced that they were now prepared to vote for Nixon’s impeachment.
The three articles lay out the facts and patterns of behavior that demonstrate the meaning of “high crimes and misdemeanors.” In my opinion, the definition we can glean from those articles and the Nixon impeachment process itself is that high crimes and misdemeanors covers egregious and grave abuses of power that threaten the rule of law or the liberties of Americans.
This is not very different from the definition advanced by many scholars, as we shall see later.
Many looking at the phrase “high crimes and misdemeanors” jump to the conclusion that a president must have committed a crime in order to be impeached, a view most recently advocated by Professor Alan Dershowitz, in The Case Against Impeaching Trump. Dershowitz was my professor at Harvard Law School. He and I have maintained a friendly relationship over the years, though we often diverge politically. His thesis, however—and I say this with all the respect due a former Harvard instructor—is wrong.
Professor Dershowitz is a defense counsel par excellence, whose verbal gymnastics in support of President Trump are matched by those of Rudolph Giuliani, the president’s widely televised lawyer, who regularly asserts that a president cannot commit crimes. According to Giuliani, a president cannot obstruct justice because a president cannot commit a crime as long as he is acting within his powers as president—assertions that echo President Nixon’s infamous statement: “Well, when the president does it, that means that it is not illegal.” Moreover, according to Giuliani, a president cannot be indicted while in office. In these two advocates, President Trump has found a get-out-of-impeachment-free card: he can be impeached only for crimes, but a president cannot commit crimes. Presto.
The framers would be appalled.
It is entirely predictable that President Trump’s supporters would want to create significant obstacles to his removal from office. Professor Dershowitz seeks to transform impeachment into a criminal proceeding, importing the trappings of a criminal trial into the process, including a requirement that a president’s guilt be proven beyond a reasonable doubt. He argues that the Constitution’s “explicit words … require conviction of a specified crime as a prerequisite to impeachment.” In fact, no words require that, nor has any impeachment proceeding against a president ever raised that as a condition.
The framers, as we have seen, struggled to strike a balance between making impeachment too easy, and thereby weakening the presidency, and making impeachment available to remove a dangerous president. After several attempts, they arrived at the solution we have today: three specified grounds for impeachment (treason, bribery, and other high crimes and misdemeanors), a vote of a majority of the House of Representatives to impeach, and a two-thirds vote of the Senate to convict. We don’t need to make the impeachment process harder than they did. As it is, the process of impeachment is so difficult and cumbersome that no president has ever been removed through impeachment alone. President Nixon would have been the exception to the rule, but he short-circuited the process by resigning.
The weight of evidence against Professor Dershowitz’s opinion is great. Still, it is important to expose the flaws in his thinking, because the claim he makes crops up repeatedly from those defending a president who faces possible impeachment.
His argument—that a president must commit a crime to be impeached—is not true. I know that from my own experience as a member of the House Judiciary Committee that voted to impeach President Nixon, a proceeding that rejected the position that a crime was needed for impeachment. It also runs counter to the history of impeachment in England and the American colonies, the debates surrounding the adoption of the provision at the Constitutional Convention, the opinions of those who ratified the Consti
tution, and other writings of that time. Furthermore, many major constitutional scholars believe no crime is required for impeachment.
Making it impossibly hard to impeach and remove a president also runs directly counter to the objectives of the framers, who wanted impeachment available and usable to protect America’s democracy. They were worried that a president could become a tyrant and/or sell out the country to foreign interests.
Mason and Madison, as detailed above, were emphatic about the need to have a usable impeachment process. Others at the convention also explained the need for the power. Virginia’s Edmund Randolph, who later became our nation’s first attorney general, warned that “[t]he Executive will have great opportunities of abusing his power …” Impeachment, he believed, was a tool to save us from that abuse. There was no mention by any of these men of the need for crimes to impeach.
Former president Gerald Ford, when he was House minority leader and led the effort to impeach the great Supreme Court Justice William O. Douglas, famously proclaimed that an “impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” As with Professor Dershowitz, I do not agree with President Ford or believe the House or Senate may remove a president on a whim.
The constitutional grounds for impeachment must both exist and be proven to a majority of the House of Representative and two-thirds of the Senate before impeachment and removal can occur. So I am happy to say that there is something on which I completely agree with Professor Dershowitz. “If the formal process of [presidential] removal is to have legitimacy,” he says, “it must be done in strict compliance with the provisions of the Constitution.”
Where Professor Dershowitz and I disagree is on the meaning of “other high crimes and misdemeanors.” The term may seem clear on its face, but it is not. He incorrectly construes it to mean a crime, although his error is understandable: Treason and bribery are generally understood to be crimes, and “high crimes and misdemeanors” sounds, too, as if it refers to criminal behavior. If, however, Professor Dershowitz had studied the history of the term’s entry into the Constitution, he likely would have discovered his mistake.
The Case for Impeaching Trump Page 3
