Published by The Lawfare Institute
in Cooperation With
Discussing the viability of launching a formal impeachment inquiry against President Donald Trump is like driving a racecar around a decaying track. The exercise is equal parts furious and tedious, sure to jolt over the same potholes again and again.
In June, concerned that the impeachment option was being appended as a tagline to every major scandal coming out of the White House, I argued that it makes little sense, practically speaking, to bang the impeachment drum prematurely. To help put the discussion on more principled footing, I offered a lengthy meditation on the nature of impeachment as described by the great constitutional scholar Charles Black Jr., who called for restraint and common sense in his unbeatable 69-page handbook on the subject. And this week, Benjamin Wittes and I argued that a formal inquiry is now warranted.
In writing these pieces, I have noticed a small set of fallacies crop up repeatedly among Trump supporters and critics on the subject of impeachment. Any talk of impeaching a sitting president will be steeped in controversy, but here I address head-on some myths that can be done away with.
Myth 1: Impeachment Is a Purely Political Determination
This myth is a two-sided coin. On one side is the argument that Congress can impeach the president for anything, best summed up in 1970 by then-Rep. Gerald Ford, who declared that an "impeachable offense" is whatever a majority of the House of Representatives “considers it to be at a given moment in history." On the other side of the coin is the notion that the House can't be expected to start impeachment proceedings until it is politically expedient to do so.
The idea that impeachment is nothing but politics is sort of right, in the way that a tomato is, according to the Supreme Court, a vegetable—at least where the metric is “ordinary meaning” rather than botanical technicalities.
As a matter of ordinary meaning, the House's decision to impeach a president (or not), and the Senate's decision to convict and remove that president (or not) are political. That is, they are determinations entrusted to one of the two political branches, Congress, and they not reviewable by any court. They could, theoretically, be guided by the crassest of political considerations. This is presumably what John Rentoul meant when he wrote in the Independent on Friday that "the whole process is entirely political," and why Jacob Weisberg suggested in Slate in May that "[w]hether impeachment hearings take place is ultimately a political question much more than a legal one.”
But impeachment and removal decisions are not “just politics” in the sense of being hopelessly unprincipled and partisan. In Black’s words, “We have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts.” Congress is bound by its oath to “support and defend the Constitution,” and interpreting the Constitution is an unavoidable part of that duty. For purposes of impeachment the words of the Constitution will take us only so far, but the fact that Congress is entrusted with taking us the rest of the way doesn’t give it license to do as it pleases, any more than the courts have license to do as they please when parsing equally difficult constitutional questions.
For the more cynical among us, who accept this in theory but believe that Congress is not up to the task of conscientious deliberation, I offer this: U.S. history, which attests to some extent to the opposite proposition. Partisanship be damned, our country enjoys a strong default against undoing national elections. Only two presidents in our history have been impeached, and none has been successfully removed (though President Richard Nixon almost certainly would have been both impeached and convicted had he not resigned). To put that into numerical perspective, for a healthy 35 percent of our history, a U.S. president has coexisted with a House controlled by the opposing party (that’s 80 of the past 228 years since the start of the Washington administration). But only two presidents have suffered the disgrace of impeachment. Those two presidents, Andrew Johnson and Bill Clinton, were Democrats who were each ultimately acquitted by a Republican-controlled Senate.
So when folks mechanically recite the Ford sound bite, step back and consider how extraordinary it is, then, that the majority of the House has so rarely considered impeachment appropriate, and that the Senate has never considered conviction proper (again, putting aside the unfinished business regarding Nixon). That is not some shapeless accident. It is a default made possible by a powerful set of principles that together hold the line against what Black described as the nullification of “the political choice most significant to the American people.”
One could argue, of course, that the default against impeachment arose out of principle but can be dislodged only by politics—that the weight of history will keep the House from opening an impeachment inquiry even when one is necessary, until it is unquestionably politically advantageous. It’s hard to test the proposition, at least before midterm elections. But we should hope that it is inaccurate, that the concerns that helped set a centuries-long default against impeachment reflect Congress’s active recognition of the need to protect the health of our democratic polity, and that the House will fulfill its obligations when it comes to investigating a president who has demonstrated dangerous unfitness for his office. And we should understand that anything less from Congress is a dereliction of its constitutional duty.
Myth 2: Congress Can’t Consider Impeachment Without Evidence That the President Has Committed a Crime
No impeachment myth is quite as inaccurate and tenacious as the notion that an impeachment inquiry must wait until evidence emerges that the president has committed a crime. This argument has been explicitly made by unembarrassed Trumpists such as Ed Rogers in the Washington Post. More importantly, it is the implicit argument underlying the obsessive commentatory over whether President Trump has committed a crime, like obstructing justice or striking a quid pro quo with Russia.
In the current evironment, this line of argument boils down to the notion that talk of impeachment is inappropriate until special counsel Robert Mueller’s Russia investigation concludes.
The consensus view among legal experts is that the president does not need to commit an indictable crime to be impeached (and, conversely, that not all crimes are impeachable offenses). Treason and bribery are crimes, but none of the most important legal authorities on the subject—Charles Black, Raoul Berger, Cass Sunstein, Michael Gerhardt, Richard Posner or Ronald Rotunda, to name a few—believe that only crimes qualify for the last and most important bucket of impeachable offenses, "high Crimes and Misdemeanors.”
How can they be so sure? To start, history is quite clear on this narrow question. As Berger details in his lengthy historical treatment of the topic, the term "high Crimes and Misdemeanors" dates to 14th-century impeachment proceedings, when misdemeanors were not "crimes" at all and comprised only torts and private wrongs.
This history is reinforced by common sense. Black offers a series of hypotheticals designed to demonstrate how ludicrous it would be if the president could not be impeached except for crimes. For example, imagine if the president announced and followed a policy of granting full pardons, in advance of any trial, to any federal agent or police officer who killed anyone in the line of duty in the District of Columbia, “whatever the circumstances and however unnecessary the killing.” As Black points out, this would not be a crime, but “could anybody doubt that such conduct would be impeachable?”
The fixation on whether Trump has committed a crime for purposes of evaluating the appropriateness of his conduct—or, in the alternative, whether he has done something that is unconstitutional beyond question or debate—is symptomatic of a larger issue. As I wrote in June, “The hyper-legal approach to the startling revelations flowing out of the Trump White House seems to have developed special pull under a presidency adrift, presumably because the law strikes us as an anchor that might hold us to shore in hysterical times.” Focus on the question of criminal presidential conduct may also be a residual effect of Watergate, a lurid saga of base criminality that retains such a strong grip on the public memory that it is perhaps perceived not as an example of what it takes for a president to depart in disgrace but as the defining model.
But there is no truth in the idea that only evidence of a crime can trigger an impeachment inquiry. On this crucial point, I can only reiterate what I have already urged:
On my read, law is the North Star of impeachment discourse; it is a helpful reference point that we must always track to ensure we do not get so turned around that we stray into reactionary partisanship. Black himself fully appreciates that we “feel more comfortable when dealing with conduct clearly criminal in the ordinary sense, for as one gets further from that area it becomes progressively more difficult to be certain, as to any particular offense, that it is impeachable.” But to allow Ursa Minor to blind us to the realm of non-criminal, impeachable presidential misconduct is to misunderstand the awesome power inherent in the office—power that includes tyrant potential precisely because the alternative is to neuter the "energetic Executive" of the vitality and range of motion that Alexander Hamilton described as essential to our security and stability as a nation. Black’s extreme hypotheticals are designed to remind us that in the case of a badly behaving president, law is a lodestar, not a refuge; “the limitation of impeachable offenses to those offenses made generally criminal by statute is unwarranted—even absurd.”
Myth 3: Congress Can’t Impeach a President for Exercising His Constitutionally Endowed Authorities
Black’s prescient hypothetical about absurd abuses of the pardon power is worth revisiting in the face of startling claims about the president’s power to pardon as he pleases. Much like the assertion that the president can fire (almost) whomever he pleases, it is a claim sometimes framed in seemingly reasonable terms. For example, this week, Adam Liptak wrote in the New York Times that Trump’s pardon of Joe Arpaio, the former sheriff of Maricopa County, Ariz., “was almost certainly lawful” because the "Constitution gives presidents extremely broad power to grant pardons.” Josh Blackman made a similar assertion here at Lawfare. But characterizing presidential actions that raise delicate abuse-of-power questions as “lawful” just because they are in line with one clause of the Constitution is more confusing than helpful.
The pardon clause is only 20 words and places almost no limits on the president’s pardon use—but that doesn’t mean the rest of the Constitution has nothing to say about it. Consider Article II, Section 3, which provides that the president “shall take Care that the Laws be faithfully executed.” The Founders clearly believed the pardon power and other sweeping executive authorities must be used in accordance with the president’s “take Care” obligation—and provided Congress with the firepower to ensure it. James Madison was a proponent of giving the president absolute authority in removing executive officers not because this would protect the president from impeachment but because it would subject him to it; Madison specifically argued that this concentration of authority would ensure that if the president allowed his officers "to perpetrate with impunity high crimes or misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses," he could be impeached.
The more general point here is that the sweeping nature of the president’s power doesn’t insulate his use of that power from congressional scrutiny. The opposite is true: By definition, a generous dose of power comes with serious potential for abuse, and impeachment may sometimes be the only way to protect the country against a president who exploits his office to commit such abuse.
It is a mistake of the highest order to confuse the president’s immense authority with the idea that he cannot be called to account, or kicked out of office, for improperly exercising it. But it’s not a mistake the Founders made. Much like James Madison, James Wilson argued that the executive authority must lie with one man alone because this would ensure his accountability, not shield him from it. "[W]e have a responsibility in the person of our President; he cannot act improperly, and hide either his negligence or inattention; he cannot roll upon any other person the weight of his criminality; no appointment can take place without his nomination; and he is responsible for every nomination he makes." Wilson concluded that “far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.”
Myth 4: Presidents Can Be Impeached at Any Time for Any Sufficiently Egregious Unconstitutional Conduct
Ben and I received significant pushback for our claim that, for the time being, “we are inclined to dismiss from impeachment consideration Trump’s plain tendency toward personal enrichment, which Congress has chosen not to check.” We reasoned that “[i]f Congress wants to do something about Trump’s obvious conflicts of interest, it has remedies well short of impeachment at its disposal.” In response, Laurence Tribe, for example, tweeted, “Excluding [Trump’s] Emoluments Clause violations because Congress could halt those w/out impeachment is fallacious.”
But note what Ben and I are not saying: We are not saying that financial conflicts are not a big deal, that they do not pose a serious threat to U.S. national security, or that they cannot be a basis for impeachment in the future just because Congress has other tools in its toolbox. We are not saying that Trump is not violating the Emoluments Clause, or that an impeachment inquiry cannot be launched if evidence emerges that he has taken secret improper actions for personal profit and to the detriment of the country. We merely pointed out that Congress has not done anything about Trump’s blatant financial conflicts, or moved to provide the public essential information about the unknown ones, and that this matters. It prevents Congress from credibly claiming, based on the current facts, that it perceives his financial dealings as conduct for which an impeachment inquiry is warranted today. If Congress wants to prevent the president from concealing his tax returns, it can pass a law. Ditto if it wants to oust Jared Kushner and Ivanka Trump from the White House staff. Congress has all manner of tools to enforce its interpretation of the Emoluments Clause to the extent that it disagrees with the president’s.
The question of whether the president’s conduct qualifies as treason, bribery, or “high Crimes and Misdemeanors” is more contingent and dynamic than is appreciated. The temptation is to think of it as a two-dimensionsional figure on the page: either the thing the president did is sufficiently egregious and subversive of the Constitution to qualify as an impeachable offense, or it is not. But it is properly understood in three dimensions; the impeachable offense is a ball that the president sometimes tosses back and forth with Congress. If, as Black argued, an impeachable offense is one “that a reasonable man might anticipate would be thought abusive and wrong,” then Congress’s own behavior in ratifying that conduct matters, because it narrows the band of clearly abusive and wrong conduct. The result is what we have now: The Justice Department is investing hundreds of hours defending Trump’s right to profit from his business ventures while in office—and Congress is funding that defense. How legitimate could it be, then, for that same Congress to declare that the activities it has refused to clearly prohibit and that it is funding the Justice Department to defend are impeachable offenses? Shouldn’t it at least stop paying for the defense first?
Trump may well be violating the Emoluments Clause at this very moment. But if Congress intends to undo a national election, it must do it without opportunism or deceit. It’s not enough that the president has done or is doing a very bad thing if Congress has all but signed off on the conduct. This is where the political nature of impeachment reasserts itself: Congressional complicity in the president’s unconscionable pursuit of personal enrichment, or in obscuring it from public view, makes it difficult, even impossible, for Congress to turn around and impeach him for it.