It is especially important that we not ignore words in the Constitution that are there to protect the rights of individuals, even if those individuals are government officials who are being subjected to impeachment and removal. It is one thing to use the concept of a living constitution to expand or create rights that were not explicitly included in the text. That is how it has generally been employed in recent times—e.g., gay rights, a woman’s right to choose, restrictions on capital punishment. It is quite another thing to use this concept to diminish or ignore constitutional protections accorded individuals, even government officials. Advocates of eliminating the requirement of a crime for impeachment may argue that this extends the rights of all Americans to honest government officials. But that is dangerous sophistry, which, if accepted, would permit diminution of all constitutional rights for accused individuals, since these rights—such as the privilege against self-incrimination and the right to be secure against unreasonable searches—often make all Americans less safe.
There is simply no way around this textual limitation. A noncrime no more fits into the exclusive list cited by Tribe and Matz than a nonathlete would fit into the Scalia list they quoted. Tribe and Matz use this rule of construction to argue that a president can be removed for conduct that does not constitute a crime. But words have meanings and crime means crime, not something else. They try to escape the unavoidable consequences of a plain reading of the text by subtly substituting the words “offenses” and “misdeeds” for the specific word used in the Constitution: “crimes.” But it doesn’t work. The Constitution specifies “high crimes and misdemeanors,” not “offenses and misdeeds.”
As I’ve said, I do not believe that the text permits totally ignoring the requirement of a “crime.” It may, however, permit inclusion of state crimes, which were the dominant crimes at the time of the framing. It may also permit “common law” crimes, which were permissible until 1812.17 The text would not, however, permit the inclusion of bad, even dangerous, “misdeeds” that did not fit the definition of “crime.”
To their credit, Tribe and Matz urge caution in deploying the nuclear weapon of impeachment:
While evaluating alleged presidential misconduct, Congress must carefully avoid crying wolf. If legislators are quick on the trigger in urging impeachment—or in suggesting that possibility—each subsequent call may be taken less seriously. A nation constantly warned that the president is a despot can grow numb to those accusations especially if prophesies of doom aren’t immediately realized. That’s why Congress should always tread carefully around references to removing the president. When impeachment talk is normalized as an aspect of partisan discourse, it is easily trivialized. Promiscuous invocation can thus prevent the impeachment power from achieving its purpose.18
But Tribe himself did not follow this sage advice when he tweeted in December 2016, less than a month after Trump had won the election, that impeachment should begin “on Inauguration Day.” A week after inauguration, Tribe tweeted that “Trump must be impeached for abusing his power and shredding the Constitution more monstrously than any other President in American history.” Relatively soon after that Tribe wrote an op-ed entitled, “Trump Must Be Impeached,” just four months into the Trump presidency. He insisted that “the time has come for Congress to launch an impeachment investigation of President Trump for obstruction of justice.”19 This would seem inconsistent with the cautionary approach he and his coauthor later suggested. I suspect that he reconsidered his position while researching and writing the book. This is commendable.
But despite the newfound caution, I fundamentally disagree with applying “living constitution” interpretation to erase the explicit words in Article I, §4, that require conviction of a specified crime as a prerequisite to impeachment. Sometimes the Constitution simply gives no escape, even from a conclusion that seems irrational by contemporary standards. Just as the two-thirds requirement may result in a tyrant remaining president, so too may the requirement for conviction of a specified crime cause bad results. But that would not justify ignoring either requirement.
Tribe and Matz bolster their textual arguments with a policy claim: that impeachment is a “forward,” rather than “backward,” remedy: it is not a punishment for past crimes, but a mechanism for preventing future misdeeds by public officials.20 But the Framers required conviction based on past crime as a prerequisite for preventing future misbehavior. They could easily have devised constitutional criteria that were explicitly future-looking and preventive, but instead they chose to require conviction of designated past crimes as a safeguard against relying on unproved and unprovable predictions. All criminal law is based, at least in part, on preventing future harms. As Blackstone wrote, criminal “punishments are chiefly intended for the prevention of future crimes.”21 But we insist on conviction for past crimes as a prerequisite for invoking preventive incarceration.22 We insist on the protection because as Niels Bohr quipped (or was it Yogi Berra?): “Prediction is very difficult, especially about the future.” On a more fundamental level, the current criteria for impeachment are not directed at potential tyrants, but at past criminals. That may be a flaw, but it may not be remedied by ignoring the text of the Constitution.
Consider the following situation: a president is indicted for treason—either before or after he leaves office. A witness has a video of him planning and confessing to taking up arms against the United States. There is no second witness. It would be absurd to acquit him, especially since a video is far more reliable than a second witness. Convicting him on the basis of the available evidence would serve the purpose of the constitutional protections. At the time of the Constitution, there were no recording devices. If there had been, the Framers would have surely allowed conviction on the basis of one witness and a recorded out-of-court confession. Yet there is not a reasonable constitutional scholar who would permit this guilty traitor to be convicted, because the plain words of the Constitution—two witnesses or a confession in open court—have not been satisfied. A too-clever lawyer might argue that playing the confession in open court is the functional equivalent of a confession in open court, but that would be result-oriented sophistry. A confession in open court is the functional equivalent of a guilty plea, whereas a defendant can plead not guilty even in the face of taped confession. The defendant in such a case cannot be convicted of the crime of treason. He must go free because the plain words—the dead words—of the Constitution demand it.23 The only remedy for this “flaw” in the Constitution is by amendment. Whether Congress would be bound by the constitutional definition of treason in an impeachment proceeding is a complex question of first impression about which reasonable scholars could disagree.
Turning to the second provision—that senators must be under oath—the following questions arise: Why is a special oath required, since they are already under the general “oath of office”? What are they swearing to do when they sit as judges or jurors in a removal trial?
One obvious answer would seem to be that they are swearing to apply the constitutionally mandated criteria for impeachment and removal, and no other. Indeed, the special oath requires them to swear or affirm that “in all things pertaining to the trial … I will do impartial justice according to the Constitution and the law” (emphasis added). This does not sound like a political event, it sounds like a legal trial, governed by the rule of law. Just as judges and jurors swear to apply the law at criminal trials, senators must do the same if they are not to violate their oath. If they were to ignore the textual criteria for impeachment and removal—if they were to act on the Gerald Ford or Maxine Waters lawless “criteria”—they would be acting unconstitutionally and in violation of their oath. (For which, under their criteria, they could be impeached and removed if members of Congress were subject to such procedures.)
Turning to the third item—the requirement that the chief justice must preside in cases involving the trial of a president—it is arguable that his role may include assuring t
hat there is compliance with the words of the Constitution, most especially with the constitutionally mandated criteria for impeachment and removal of a duly elected president of the United States. It would have been easy for the Framers to have made an official of the Senate (one not in the line of presidential succession) the presiding judge.24 If the trial were entirely political, as advocates of the broad view insist, then a political official would be the most appropriate presiding officer. The decision by the Framers to have the chief justice preside over the trial of a president may suggest that the decision was not intended to be entirely political. Indeed, it would be wrong for the chief justice to participate, much less preside over, an entirely political process. Judges are required to stay out of politics.
Supporters of the broad viewpoint to Hamilton’s statement in The Federalist Papers argue that impeachment is proper for “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 (emphasis added), as they relate chiefly to injuries done immediately to the society itself.”25
It is unclear, however, whether this statement, even if deemed authoritative, broadens or narrows the constitutional criteria for impeachment.
One interpretation is that the word “offenses” broadens impeachable acts beyond “high crimes and misdemeanors,” because the word “offenses” is more inclusive than the constitutionally specified criteria. But another plausible interpretation is that “offenses” means “crimes,” and that the mere commission of ordinary offenses or crimes—“low” crimes and misdemeanors—are not enough. To be impeachable, the offenses or crimes must also constitute “the abuse or violation of some public trust.” It is such an abuse or violation, in addition to the explicit criteria, that makes the removal process “political.” Put another way, conviction by the Senate of an enumerated crime is a necessary but not sufficient condition for removal. The added elements of violation of public trust and injury to society are required as well.
An episode from Hamilton’s own life illustrates this distinction. He was accused of having an adulterous affair with a woman and paying money in response to a threat of extortion. He admitted the affair and the payment, but he vociferously denied paying the money from government funds, as some had accused him of doing. Had he done so, his high crime would have constituted “the abuse or violation of some public trust,” but paying his own funds to cover up personal embarrassment may not cause “injuries” to the “Society itself.” In other words, the crime or offense must have a “political,” not just a legal, component. If that is so, then the Hamiltonian requirements narrow rather than broaden the criteria for removal by adding the additional requirements of abuse of public trust and injury to society to the enumerated criteria. Under that interpretation, the impeachment of President Bill Clinton was improper, as I and others argued back then.26
Hamilton’s oft-quoted Federalist Papers essay does not purport to answer these and other questions, but rather to persuade the readers that they should not reject the Constitution based on its imperfections. He argued that it would have been wrong for the Framers to have left the trial of an impeached president to the Supreme Court because it would be unfair to have a president tried by judges for impeachment and then tried again by judges in a criminal proceeding. This would seem to presuppose that impeachment must be based on criminal conduct because, if it were not, there would be less concern about the double jeopardy implications in a subsequent criminal trial.
In any event, recourse to the “legislative history” or intended “original meaning” is inappropriate when the words are unambiguous. The plain meaning must prevail over all other interpretative mechanisms, since it was the word, not the intentions behind them, that were voted on and accepted. Tribe and Matz acknowledge that it would be difficult to determine, and certainly rely on, the original understanding of the Framers or others who participated in the creation of our Constitution:
Few delegates at the Convention addressed impeachable conduct at all, as we don’t know whether the views of those who did are representative of all thirty-nine men who signed the Constitution. Further, if we look beyond Convention Hall to gauge original meaning, the definition of impeachable conduct was barely discussed at most state ratifying conventions. That absence is telling. Given the diversity of state impeachment practice, it’s likely that Americans around the country had divergent understandings of the Impeachment Clause that they ratified.27
This assessment would seem to bolster the conclusion that we are bound by the words ultimately adopted and ratified. These words include explicit, constitutionally mandated requirements for impeachment and removal. These requirements suggest that the following scenario may be possible. If the House of Representatives were to impeach a president on grounds that are not included in the constitutional criteria, the president’s lawyers could file a motion in front of the chief justice to dismiss the “indictment” (impeachment is widely seen as analogous to indictment), on the ground that the Bill of Impeachment is insufficient as a matter of constitutional law, and that removal on such grounds would violate the oath required of senators. If such a motion were to be made, the chief justice might be obliged to decide it, and under principles of law that hark back to Marbury v. Madison and its progeny, the chief justice is bound to apply the Constitution to any act of the legislature. If the chief justice were to conclude that the Bill of Impeachment did not state a constitutional claim, he would be required to dismiss it.
This may sound far-fetched but, if so, the question then arises: What role is the chief justice supposed to play, if not the traditional role of a judge in a criminal, or even civil, trial? That role includes not only ruling on the admissibility of evidence and other procedural issues, but also making a legal determination as to whether the constitutional criteria have been met.
We will probably never know the answer because it is unlikely that the House of Representatives will impeach the president without charging him with criminal conduct. But if that were to occur, and if the president were to challenge that decision by way of a motion to the chief justice, there is no way of knowing how the chief justice would decide the matter—or whether Congress would abide by the ruling of the chief justice.
A variation on this scenario is the following: the Articles of Impeachment do charge a high crime, say obstruction of justice, for firing the director of the FBI, who was investigating the president. The president offers a constitutional defense to that crime: that Article II authorized the president to fire any person in the executive branch for any reason and separation of powers precludes the legislative branch from questioning any such executive action. Or the president argues that the admissible evidence of the charged crime is insufficient as a matter of law. Would the chief justice be obligated to rule on these dispositive motions? If the trial is entirely “political,” as some urge, then the answer may well be no. (This raises the question of how a trial, which is a quintessential legal proceeding, could be entirely political.) If the trial is governed by the rule of law and the text of the Constitution, a different answer would seem to follow.
The argument made by those who insist that impeachment and removal are entirely political decisions, uncabined by legal constraints, sometimes takes the form of the following syllogism:
(A) A decision by the House to impeach a president or by the Senate to remove him is non-reviewable by the judicial branch, (B) therefore, these decisions are political in nature and not legal; (C) because they are political, not legal, the House and Senate are not bound by the text of the Constitution as to the criteria for impeaching and removing.
That argument begs the crucial question, and is entirely circular, as evidenced by the following counter-syllogism:
(A) The criteria for impeachment and removal are clearly set out in the text of the Constitution—just as is the requirement for a two-thirds vote by the Senate for
removal; (B) therefore, if the House and Senate try to impeach or remove for an offense not specified in the text (or if the Senate decides to remove by a simple majority), they would be violating the Constitution and their unconstitutional actions would be reviewable by the judiciary; (C) because they would be reviewable by the judiciary, impeachment and removal are not entirely political acts ungoverned by law.
Neither of these syllogisms answers the critical questions, which are necessarily matters of degree: Which provisions of law, if any, are applicable to impeachment and removal proceedings? If some are applicable, may they be enforced in a presidential removal trial by the presiding chief justice? Are any aspects of a removal trial judicially reviewable?
The fallacy implicit in the first syllogism is the assumption that if a congressional action is not judicially reviewable, it necessarily follows that it is not governed by law and is, therefore, entirely political. That is certainly not how the Framers of the Constitution, who did not explicitly include judicial review of congressional actions as part of our system of checks and balances, saw it. They believed that Congress was obligated by the oath of individual members to comply with the Constitution, regardless of whether its actions were or were not reviewable by the courts. Congress is bound not to enact legislation that violates the Constitution and, if it does, the president is bound not to sign it. That would be the case even if there were no Supreme Court or judicial review.
The Case Against the Democratic House Impeaching Trump Page 3
