Executive Branch

It’s Time: Congress Needs to Open a Formal Impeachment Inquiry

Jane Chong, Benjamin Wittes
Monday, August 28, 2017, 8:36 AM

Last Tuesday, the New York Times published a foggy story noting that Senate Majority Leader Mitch McConnell "has mused about whether Mr. Trump will be in a position to lead the Republican Party into next year’s elections and beyond."

President Donald Trump at Liberty University on May 13, 2017. (Shealah Craighead/White House)

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Last Tuesday, the New York Times published a foggy story noting that Senate Majority Leader Mitch McConnell "has mused about whether Mr. Trump will be in a position to lead the Republican Party into next year’s elections and beyond."

The time for musing has passed. It’s now time to begin a serious conversation about the impeachment and removal of President Trump by opening a formal impeachment inquiry.

The evidence of criminality on Trump’s part is little clearer today than it was a day, a week or a month ago. But no conscientious member of the House of Representatives can at this stage fail to share McConnell’s doubts about Trump’s fundamental fitness for office. As the Trump presidency enters its eighth month, those members of Congress who are serious about their oaths to "support and defend the Constitution" must confront a question. It’s not, in the first instance, whether the president should be removed from office, or even whether he should be impeached. It is merely this: whether, given everything Trump has done, said, tweeted and, indeed, been since his inauguration, the House has a duty, as a body, to think about its obligations under the impeachment clauses of the Constitution—that is, whether the House needs to authorize the Judiciary Committee to open a formal inquiry into possible impeachment.

It’s not a hard question. Indeed, merely to ask it plainly is also to answer it.

The fundamentals of impeachment are simple enough, but they are sufficiently abstract that you might be forgiven for thinking that serious consideration of an impeachment inquiry should remain a ways off. Article II, Section 4 of the Constitution provides that the president “shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” This last bucket of impeachable offenses is broad—but it is not formless. As Charles Black Jr. explains in his classic 1974 handbook on the subject, some acts are not crimes but are sufficiently abusive or ignominious to render an individual unfit for the nation's highest office. On the other hand, as one of us recently wrote in an extended meditation on Black’s analysis, crimes rise to the level of the impeachable offense specifically if they are "subversive of government or political order" or simply so serious as to make a president "unviable as a national leader."

The problem in applying this rubric to Trump’s conduct is not that the president’s behavior raises no serious issues to discuss under the impeachment clauses. It’s the range and diversity of behavior the House Judiciary Committee properly should be considering that overwhelm. This is true even after excluding the merely unpleasant or in any case constrainable aspects of his behavior from the truly unacceptable ones. For instance, at this juncture we are inclined to dismiss from impeachment consideration Trump’s plain tendency toward personal enrichment, which Congress has chosen not to check. If Congress wants to do something about Trump’s obvious conflicts of interest, it has remedies well short of impeachment at its disposal. We think an impeachment inquiry is appropriate only for those blatant misuses of executive authority that no other branch of government—and apparently none of the president’s advisers—is in a position to prevent. Yet even narrowed as such, the House—when it is finally willing to do its job—has what the military would call a target-rich environment.

In our view, Congress should be evaluating at least three baskets of possible impeachable offenses. There is a good deal of overlap between these classes of misconduct, but they are sufficiently distinct to warrant individual attention:

  • His abuses of power, most obviously exemplified by his conduct with respect to the investigations into his campaign’s collusion with Russia;

  • His failures of moral leadership; and

  • His abandonment of the basic duties of his office.

At the extreme, each type of misconduct not only denigrates the presidency but also fundamentally undermines the security of the United States.

To start, it should be apparent to the reasonable member of Congress that abuse of power is the most prominent and problematic motif running through the Trump presidency. The country received a strong reminder of the point this weekend, when the Washington Post reported that Trump allegedly asked his attorney general to drop the criminal prosecution of Joe Arpaio, the former Maricopa County, Ariz., sheriff who was convicted of criminal contempt last month for flouting the order of a federal judge to stop detaining people he merely suspected of being undocumented immigrants; when the Justice Department refused, Trump decided to pardon him if and when his own department won a conviction. As the country’s chief executive, Trump is tasked with taking care that the laws be faithfully executed, but he has instead consistently undermined or explicitly threatened to undermine their fair administration—and sometimes for his personal advantage. That Trump sees the top officials within the Justice Department, and the FBI more specifically, as his personal lackeys is reflected in his most dramatic decisions, such as the firing of FBI Director James Comey, but also in his pettiest, like publicly berating the department’s highest officials in interviews and on Twitter when their actions do not further his political interests. For instance, he has insulted Jeff Sessions for recusing himself from the Russia investigation and for not investigating Hillary Clinton's emails and Ukraine's alleged attempts to sabotage the U.S. presidential election.

Against this backdrop, the ongoing investigations into possible collusion between members of Trump’s campaign and Russia are significant, and not just because the underlying allegations bear on the legitimacy of our democratic processes. Much of Trump’s most shameful conduct comes down to efforts to discredit and derail those investigations. Continued media coverage of Russia-related developments is also obviously a flashpoint in Trump’s bellicose relationship with the press and a key reason for his insistence on deriding mainstream news outlets as “fake news.” It is also on the subject of L’Affaire Russe that Trump has most nakedly trampled on the independence of the Justice Department. Some of the revelations about Trump’s behavior on this front have taken the form of credible but as-yet-unverified allegations; most notably, former FBI director Comey testified under oath that Trump asked him to pledge his loyalty and also expressed the “hope” that the bureau would drop its investigation into former national security adviser Michael Flynn. But Trump himself has also admitted to interference: Shortly after firing Comey under an obvious pretext, Trump conceded on national television that he was motivated by his belief that the allegations underlying the Russia investigation amounted to “a made-up story.” The Comey firing was one of the most astonishing and abnormal acts of Trump’s presidency and, combined with the events surrounding it, may well on its own merit the formal start of an impeachment inquiry. James Madison argued that the president could be impeached for "the wanton removal of meritorious officers," an issue subject to controversy even then but that should be a good deal less controversial where the removal is orchestrated to protect the president and his close associates from investigation and follows a pattern of abusive interactions with law enforcement.

Notwithstanding the recent public fixation on questions of technical legality, the power of the president is in some respects so sweeping that the relevant question is not whether he is constitutionally authorized to do certain things but whether he forfeits all benefit of the doubt as to his viability as a national leader when he does. This point logically follows from Edmund Randolph’s argument for the inclusion of an impeachment clause during the Constitutional Convention; Randolph pointed out that because of the nature of the position, "The Executive will have great opportunities of abusing his power." Trump has fully demonstrated his willingness to exploit those opportunities for personal and political ends. Among other things, in July, shortly after it emerged that his son had met with a Russian lobbyist for dirt on Hillary Clinton during the presidential campaign, Trump asserted the "complete power to pardon” and reportedly began asking about his power to pardon family members, associates and himself.

The second category of potentially impeachable conduct, Trump’s failures in moral leadership, is potentially treacherous terrain. That’s because without a disciplined approach, the inquiry becomes squishy and subjective and could well open the door to unprincipled incursions on executive power—and simply the undoing of democratic electoral outcomes. As Black cautioned, “General lowness and shabbiness ought not to be enough” for impeachment. But two points are worth making here. First, we have at least some objective metrics for gauging moral failures and their implications for a president’s unfitness for the office. Consider Trump’s flagrant lies to the American people and attacks on the free press. Trump’s record on these issues is by now well established, and a reasonable member of Congress can readily understand these two kinds of moral degradation as fundamentally incompatible with the obligations of his office.

As to demonstrable lies, the list is so long that mainstream outlets have taken to curating interactive archives on the topic. Some of these lies bleed into abuses of power themselves. In March, without any evidence, Trump claimed that his predecessor, Barack Obama, had wiretapped him in Trump Tower; he then jeopardized a critical U.S. partnership when he falsely claimed that British intelligence had helped with the supposed illegal eavesdropping. As to attacks on the press, Trump has not only dismissed mainstream news outlets as “fake news” but also has done so in terms that have caused members of the press to fear retribution, whether it’s tweeting a video of himself violently punching a physical representation of CNN or condemning journalists as “very dishonest,” “sick people” who have it out for America at his Arizona rally last week. It is against this steady diet of lies and bully tactics that we must assess other evidence of his moral feebleness. For instance, in February, he publicly blamed his generals for the death of Navy Seal William Owens during a botched raid in Yemen, and this month he equivocated in denouncing the white supremacist violence that took the life of Heather Heyer and injured almost two dozen others in Charlottesville, Va.

All of this reflects a broader principle: Although we do not purport to know precisely the threshold at which moral decay constitutes an impeachable offense, presumably there is some point at which it does. For example, what if, after labeling the press enemies of the people and ginning up anger at reporters, President Trump then waxed triumphant when a reporter was actually murdered and, say, went to her funeral and spat on her grave? Would anyone really doubt that such moral failings alone could be impeachable? The question here really is where that line lies and whether Trump has crossed it. This is a question Congress should be thinking about in a formal, structured setting.

The third category of potential offenses comprises all the ways Trump has simply neglected or repudiated his constitutional duties and thereby degraded the executive branch’s ability to effectively respond to threats and protect and pursue U.S. interests. Like moral failure, such abandonment is a tricky subject, and we must reject glib generalizations when discussing it as a basis for impeachment. After all, the Founders rejected mere “maladministration” as a basis for impeachment when drafting the Constitution. But at some point, a dysfunctional executive comes to embody, in the words of Black, such a “gross and wanton neglect of duty” that it could serve as grounds for impeachment and removal.

The most obvious kind of abandonment boils down to failure to make appointments, a task critical to ensuring the executive branch’s efficacy and accountability. To date, seven months into the Trump presidency, most key executive-branch positions remain empty and their nominees unnamed, including those he is legally obligated to fill; to date, 62 percent of the almost 600 positions that require Senate confirmation lack a nominee. Even while threatening “fire and fury” against nuclear North Korea and threatening military action in Venezuela, Trump has deliberately gutted the State Department, leaving the country rudderless on the world stage.

Count us as skeptical that delays in making appointments could become a stand-alone basis for impeachment, except in the most egregious cases of blatant refusal, and the macro numbers in any event indicate that Trump, while behind, is not wildly out of range of his modern predecessors. There is a far more ominous form of delinquency Congress must consider, and that is abandonment as an outgrowth of Trump’s extreme incompetence. He is sufficiently deficient in judgment and discretion that he requires perpetual, and very public, babysitting; in many respects, he appears to have relinquished the job, but his advisers also live in constant fear of what will happen if he shows up to do it. Political scientist Dan Drezner has even been keeping a tally of times Trump’s advisers are quoted talking about him as though he were a toddler. In fact, the only way to mitigate the damage Trump has proven capable of doing, particularly in the foreign policy arena—whether by way of an improvised threat to North Korea, Venezuela or Mexico, or an an indefensible tweet at odds with his own administration’s diplomatic objectives—is for his advisers to counteract him, either by downplaying him or flat-out contradicting him. The result is not a president but a poltergeist, who does little more than make noise and threaten damage. He has all but abandoned the office for purpose of substantive leadership and governance but is sufficiently present to make a mess. At some point, surely that amounts to more than “maladministration” but to the “gross and wanton neglect of duty” that Black described.

In sum, Trump has embarrassed the presidential office in innumerable ways, and members of the House and Senate are obliged to organize these incidents in their heads and get a handle on their constitutional significance. There is a wrong way and a right way to go about this task. The wrong way is to treat the launch of an impeachment inquiry as a matter of political popularity or opportunism. On this view, the relevant vectors might include polls on Trump’s approval ratings, the results of next year’s midterm elections, and worldwide Google searches for "impeachment" (which soared when Trump fired Comey from the FBI in May and has otherwise ebbed and flowed with the news tide). The right approach is to commit to a clear-eyed and ongoing assessment of Trump’s words and actions against the obligations of the office and to trace out the effects of his misconduct on the security and welfare of the United States.

In 1833, Justice Joseph Story explained that impeachment is not limited to "crimes of a strictly legal character" but also "has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law." This is a near-perfect description of Trump’s wide-ranging abuses and the challenge that now lies with Congress: The order that the positive law is unable to provide is now its to impose.

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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