The Case Against the Democratic House Impeaching Trump
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It took Marbury v. Madison and its progeny to make many, but not all, actions of the other branches subject to judicial review. But this did not eliminate the obligation of the other branches to comply with the Constitution, regardless of whether their actions are or are not judicially reviewable.28 But, because we have a Supreme Court and judicial review, some members of the legislative and executive branches have erroneously concluded that they are free to ignore the constraints of the Constitution. How often have we heard the following: “If it’s unconstitutional, let the courts strike it down”? That is a clear abdication of the responsibility of all government officials always to comply with all provisions of the Constitution.
So it does not follow from the fact (if it is a fact) that impeachment and removal may not be judicially reviewable, that these government actions are completely political and not governed by the rule of law and the text of the Constitution.
Conceptually, the issue of whether impeachment and removal are subject to judicial review is separate from the issue of whether they are entirely political acts unbound by constitutional constraints. In practice, however, Congress would be free to act inconsistently with the Constitution if its actions were final and not subject to judicial review. That is essentially what was done by the Congress that impeached and nearly removed Andrew Johnson for actions that were not within the constitutionally mandated criteria (the vote was one short of the required two-thirds). But just because its decisions to impeach and remove (had there been a two-thirds vote) would have been final because they were not judicially reviewable, it would not make them right as a matter of constitutional law. It would make them lawless and unconstitutional actions that were not subject to judicial review (if the courts were to decide that they lacked the power to review).
I’m reminded of the quip by the late Justice Robert Jackson about the Supreme Court: “We are not final because we are infallible, but infallible only because we are final.”29 A Congress that impeached and removed a president in violation of the language of the Constitution would be “right” only in the sense that it would be final (if there were no judicial review). But it would not be right—or constitutional—in any other sense.
Nor is it completely clear that a wrong decision to impeach and remove a president based on criteria other than those enumerated in the Constitution would necessarily be final. The decision to remove is not self-enforcing. The impeached and removed president would have to accept the legitimacy of such a decision and agree to leave office. What would happen if the president announced that he did not accept as final the unconstitutional decision of the Senate to remove him, because they had failed to charge and convict him of one of the crimes enumerated in the Constitution?
This would generate a constitutional crisis between the legislative and executive branches that would have to be resolved by the judicial branch. But what if Congress insisted that it, rather than the Supreme Court, was the final arbiter of impeachment and removal?
There is no precedent for the Supreme Court reviewing an impeachment and removal, and there is at least one precedent for the high court declining to do so in the case of a removed judge.30 But there is also no precedent for a president being impeached and being removed and challenging his removal in court on the ground that he did not commit a crime specified in the Constitution as a prerequisite for removal.
If the chief justice issued a thoughtful constitutional opinion ruling that the Articles of Impeachment failed to charge a crime, as required by the Constitution, and, if the Senate voted to override that “judicial” finding, the president might well try to appeal the Senate’s override of the chief justice’s ruling to the entire Supreme Court. That would present the issue squarely as to whether the Supreme Court—as distinguished from the chief justice—has any judicial oversight role to play in the impeachment and removal process.
At least two justices—Byron White and David Souter—have suggested that there may be some room for judicial review even in the face of Article I, §3, which gives the Senate “the sole power to try all impeachments.” This is what Justice White said:
Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis.31
White’s view was echoed by Justice Souter:
If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.32
There is no way of knowing how the Court would respond to a legitimate presidential challenge, especially if the president refused to leave office on the ground that his impeachment and removal were unconstitutional. A Supreme Court that inserted itself into the Bush v. Gore election in order to avoid a constitutional crisis might well decide to review a House decision to impeach and a Senate decision to remove a president who is not accused and convicted of a specified constitutional crime.
The Constitution does not provide clear answers to these questions, though Marbury v. Madison and its progeny suggest that the Supreme Court is the final arbiter of the constitutionality of the actions of all branches of government.
In the end, of course, the people are the final arbiters of all governmental actions. The people have the power to vote out legislators and presidents (and, in some states, judges). They have the power to amend the Constitution (though only through constitutionally mandated procedures). The people must accept the legitimacy of the actions of the various branches of government if democracy is to prevail over civil discord.
Were a president to announce that he refused to accept the actions of the Senate in voting for his removal, on the ground that he had not been convicted of an enumerated criterion for impeachment and removal, and that he would not leave office unless the Supreme Court affirmed his removal, the people might well agree with him. But if the high court then affirmed his removal and he refused to leave office, the people would probably not support him.
I raise these issues not only because they are fascinating and testing hypotheticals—I am, after all, a retired law professor who spent half a century constructing such hypotheticals—but also because this president (and perhaps others) might well refuse to leave office if Congress voted to impeach and remove him based on “offenses” that were not among those enumerated in the Constitution. He might even refuse to leave if the Supreme Court refused to review the actions of Congress, or affirmed them on technical grounds. Finally, there is even a risk that if the Supreme Court explicitly ruled that Congress had the power to impeach and remove a president for offenses that were not enumerated in the Constitution, this president might say that he will abide only by his own interpretation of the Constitution, which requires that he be convicted of an enumerated crime.
The Constitution is fragile and imperfect, as is democracy itself. Both require the legitimacy of the governed. Recall that presidential candidate Al Gore acceded to the Supreme Court’s highly controversial ruling stopping the recount and giving the presidency to George W. Bush. Had he refused to accept that ruling, as some urged him to do, there would have been a major crisis. That is why Congress must comply with the text of the Constitution—especially with the enumerated criteria for impeaching and removing a president, regardless of whether its decisions are or are not subject to judicial review. It is also why the Supreme Court should remain the final arbiter in the event of a reasonably challenged removal.
On the basis of the constitutional text and the facts we currently have in the public record, the case against impeaching and removing President Trump is quite strong.
In the essays and interviews that follow this introduction, I lay out arguments agains
t charging President Trump with, or impeaching him for, obstruction of justice based on actions he took or may take that are authorized under Article II of the Constitution, which sets out the powers of the president as the head of the executive branch of our government. These include the power to fire members of the executive branch, such as the director of the FBI, for any or no reason. They also include the power to pardon anyone for any or no reason. He may not, of course, solicit or receive a bribe for taking any such action. The very act of soliciting or accepting the bribe—for any reason—would be a crime. Nor could he lie to prosecutors, tell witnesses to lie, pay hush money to potential witnesses, or destroy evidence—all of which President Nixon was accused of. (President Clinton, as well, was charged with lying under oath.) But a president who does none of these things cannot, in my view, be charged with a crime for merely exercising his Article II powers to fire or pardon, regardless of his motive for doing so. Nor can his motives or state of mind in taking constitutionally authorized actions be questioned as part of a criminal or impeachment investigation. These restrictions do not place the president above the law, because they are required by the law, for the same reasons members of Congress and the judiciary cannot generally be charged or questioned for their legislative or judicial actions.33 This is a controversial position, and I have been much criticized for taking it. But many commentators, who initially disagreed with this argument, are now assuming its validity and arguing that President Trump should be investigated for other misdeeds. My arguments in support of the position are set out in the essays that follow.
Even more controversial, but in my view equally correct, is my position that under our constitutional structure, the president, as head of our “unitary executive” branch, may direct the attorney general and the director of the FBI as to who and what to investigate and/or charge with crimes, as well as who not to investigate and charge with crimes. I do not personally approve of the president having such powers and I would favor a constitutional amendment limiting or even eliminating them. But I believe that the Constitution, as written and interpreted for generations, gives the president those powers and precludes him from being charged for exercising them—even for exercising them wrongly or in a self-serving manner. There is a difference between what we believe the law should be, and what the law is, especially when it comes to charging a president with a crime or impeachable offense.
I wrote about this problem during the impeachment of President Clinton:
The time has come to recognize that the Framers of our Constitution made a serious mistake by creating the single office of attorney general to serve two conflicting functions. We must bring ourselves into the twenty-first century by breaking these two functions into two discrete offices, the way the rest of the democratic world has done. We can begin without tinkering with the Constitution, by simply having Congress create an Independent Office of Public Prosecution within the Justice Department. The director of that office would be a civil servant appointed for a fixed term by the president with the consent of the Senate. By tradition, that person would be outside of politics and an eminent lawyer of great renown and acceptability to both parties. He or she would not be answerable to the attorney general on issues of prosecutorial policy or on specific cases, and would be removable only for good cause.
It is not certain whether the Constitution would have to be amended to accomplish this change. Article II grants to the president the responsibility to “take care that the laws be faithfully executed,” but that responsibility may be delegated—as it has been—to the attorney general.
If Congress were to pass, and the president sign, a law creating a permanent, nonpartisan office of Director of Public Prosecutions, I believe it would be held constitutional.
If this legislative solution did not pass constitutional muster or did not work for other reasons, it might be necessary to amend the Constitution so as to create an independent prosecutorial office. The Constitution should never be amended except as a last resort, after all other reasonable legislative and administrative solutions have been tried. But the problems of our current Justice Department and its conflicting roles are so serious, and so likely to get even worse, that we must begin to consider new methods for dealing with them.34
But until the law is changed, a president should not be charged or impeached for exercising his current constitutional authority to direct the Justice Department or FBI who to investigate and who not to investigate.
What if President Trump were to be impeached for colluding with Russia during the presidential campaign? If there were proof of such collusion—and to date I have seen none—that would be a serious political sin. An American should not collude with a foreign power, especially a hostile foreign power, in an effort to enhance his candidacy. But once again, there is a dispositive difference between a political sin and a high crime and misdemeanor. There is no such crime of collusion in the context of an election. Collusion may entail other crimes, such as election law violations or accessory to crimes such as hacking. But collusion itself is simply not a crime. Consider the most extreme hypothetical: assume, absurdly, that candidate Trump called Vladimir Putin and said the following: “Hey, Vlad. Do I have a deal for you!” I want to be elected president, and you want to get rid of the Magnitsky sanctions, which I don’t like anyway. You should help me get elected by giving me dirt you already have on Hillary Clinton because, if I’m elected, there’s a better chance to get rid of the sanctions, which I disapprove of.” Of course, no such conversation occurred and no such deal was made. But if it had been, one can search the federal criminal statutes for a crime that would cover this political sin. Politicians often seek contributions and support from individuals who expect to benefit from the election of their candidate. There are, of course, limitations on what a foreign government can contribute to a campaign, but these limitations are vague and subject to constitutional scrutiny, especially in the context of information rather than cash. Perhaps some election laws could be stretched to fit this conduct, but such stretching would raise serious constitutional issues. Obviously if one varies the facts a little bit, there would be a crime. For example, if a candidate asked Putin to get dirt on his opponent by hacking emails, that would be a crime. But merely passing along dirt that has already been obtained would not be. That is true even if the dirt had been obtained illegally through hacking. The person doing the hacking would be guilty of the crime, but the campaign would not be guilty for using the fruits of the hacking, any more than the New York Times and the Washington Post would be guilty of publishing the stolen Pentagon Papers or the materials stolen by Chelsea Manning and Edward Snowden. So, based on what we now know, it would seem clear that President Trump could not be charged criminally with colluding with Russia, even if there were evidence he did so.
But what if he were impeached for the political sin of colluding with a hostile foreign power? Such impeachment would raise the issue dramatically of whether Congress could go beyond the criteria for impeachment and removal. I think the answer is no, but there are those who disagree. This would be a good test case because, plainly, collusion with Russia would be a breach of the public trust and fulfill Hamilton’s criteria for impeachment (if Hamilton intended those criteria to be a substitute for, rather than an addition to, the enumerated criteria). Or take a more extreme example. Assume Putin decides to “retake” Alaska, the way he “retook” Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to “its” original territory.35 That would be terrible, but would it be impeachable? Not under the text of the Constitution. (It would, of course, be different if he did it because he was paid or extorted.) Such a dramatic event might appropriately result in a constitutional amendment broadening the criteria for impeachment, but it would not justify ignoring or defying the words of our current Constitution.
The Framers of the Constitution did not provide an impeachment remedy for an incompetent, nasty, even tyranni
cal president—unless he committed a designated crime. Perhaps they should have, but Congress is not authorized to “correct” constitutional errors or omissions through unconstitutional actions in impeaching and removing a president who has not committed a designated crime. Perhaps the Framers should have required a majority vote rather than a two-thirds vote to assure that a tyrannical president is removed. But the remedy lies in amending the Constitution, not violating it. The appropriate response to executive tyranny is not legislative tyranny.
As I write these words, more information seems to be emerging from both sides regarding improprieties during the campaign. I doubt we have heard the last of the allegations from either side. The bottom line is that the 2016 presidential campaign was deeply troubling for many reasons. That is why, from day one, I proposed that instead of appointing a special counsel to investigate crimes, Congress should have appointed a nonpartisan commission of experts to investigate the entirety of the 2016 election, including allegations of Russian interference, the impact of Comey’s ill-advised public statements, the bias of some FBI agents, and other possible improprieties that do not rise to the level of indictable or impeachable crimes. I continue to urge the appointment of such a commission, since many in the public are losing faith in the Mueller investigation and in the hyper-partisan congressional committee investigations. The public has the right to know everything that happened during the 2016 presidential campaign in order to prevent recurrence in future campaigns. A nonpartisan commission is a far better way to learn the whole truth than any of the investigations currently being conducted.
In making the case against impeaching President Trump, I do not mean to whitewash anyone’s conduct. I simply want to make sure that whatever actions are contemplated or taken are consistent with the United States Constitution, the rule of law, and civil liberties. Unlike the political case against impeaching President Trump that James Comey is making—voting him out is more democratic than impeaching him—my case against impeaching President Trump is constitutional. There is simply no evidence in the public record that he has committed any of the crimes enumerated in the Constitution as a prerequisite for impeachment and removal.