Reflections on Impeachment

In an interview with Axios, John Dowd, the President's erstwhile lawyer, said "The "President cannot obstruct justice because he is the chief law enforcement officer under [the Constitution's Article II] and has every right to express his view of any case." 1 

That's an interesting proposition for it reveals a couple of things: 1. his lawyers believe Trump has obstructed justice (the grounds for impeachment of both Bill Clinton and Richard Nixon), and 2. they are asserting that the President by virtue of his office is above the law, an assertion that would seem to be applicable more to a dictator than a democratically elected official.

As a review, the impeachment and trial process, emulated by most states for state officials, is that articles of impeachment are first brought to the House Judiciary Committee where it takes but a simple majority to bring them to the full House. The House also needs but a simple majority (50% +1) to vote to send the articles of impeachment to the Senate where the official, be it president, vice-president, any federal official, stands trial. Here the standard for removal is high: a two-thirds majority of elected Senators must vote to convict in order for removal to take place. (Andrew Johnson's conviction failed by one vote.) Conviction on just one of the articles by a two-thirds majority results in removal.

Gerald Ford (perhaps ironically the only person ever to serve as both president and vice-president without having been elected to either office), during his campaign for the impeachment of Justice William O'Douglas, said "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office." 2 

As it happens, I have been doing some research regarding impeachment for a presentation and have been intrigued by past uses of impeachment and the rationale therefore. Historically, of course, the typical way to remove an unpopular official (at least in the eyes of the perpetrator) was assassination, and certainly we've seen far more of that in the United States than impeachment, beginning with Alexander Hamilton's murder by Aaron Burr (although some might argue a duel is hardly an assassination.) Burr was later charged with treason by Thomas Jefferson for entirely different reasons. Note that both assassination and impeachment are political in nature.

Charles I was indicted and convicted by a quasi-Parliament in 1649. He lost his head (literally.) He argued like Trump who surely wishes he were King, that " "no earthly power can justly call me (who is your King) in question as a delinquent … no learned lawyer will affirm that an impeachment can lie against the King." James Madison, author of most of the Constitution, and the delegates specifically included the President in Article II, Section 4, to avoid any ambiguity. Unfortunately, that's where the clarity ended, for the phrase "high crimes, and misdemeanors" has bedeviled everyone since.   George Mason favored impeachment for "maladministration" (incompetence). James Madison argued that impeachment should only be for criminal behavior, arguing that a maladministration standard would effectively mean that the President would serve at the pleasure of the Senate. Others have suggested that using the criminal behavior standard could result in the same as Congress could criminalize all sorts of things. So they compromised and settled on the phrase as it exists. (Treason and bribery are pretty straight forward although Trump is pushing the limits of both, especially if we learn his violation of the emoluments clause could be considered a form of bribery.)

In 1797, William Blount, Senator from Tennessee was charged by the House with conspiring to aid Britain in acquiring territory. The Senate decided the House could not impeach a Senator so they (the Senate) kicked him out themselves. Judge John Pickering was the first to be successfully impeached, convicted, and removed from office. That was for drunkenness and "unlawful rulings." (One has to wonder how standards have changed when a sitting president can make lewd remarks and be practically immune from criticism.) Samuel Chase, Associate Justice of the Supreme Court was impeached, at the behest of the Democrat-Republican party, headed by Thomas Jefferson, for political bias and arbitrary rulings and promoting a partisan political agenda on the bench, charges of which he was clearly guilty. Fortunately, he was acquited, helping to assure an independent judiciary. In another irony, the trial in the Senate was presided over by Aaron Burr as vice-president.

There has been only one impeachment or an elected president. (Andrew Johnson, after all, became president via assassination and Nixon, while he surely would have been impeached and convicted, resigned before that could happen): that of Bill Clinton. It's generally agreed that a sitting president is immune from criminal prosecution (not civil it should be noted unless it's a result of his official duties) 3  To quote Justice Story , “‘The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability." 5 In the Federalist papers, Alexander Hamilton wrote about impeachment that the president "

The President of the United States would be liable to be impeached, tried, and upon conviction of treason, bribery, or other high crimes and misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the King of Great Britain is sacred and inviolable: There is no constitutional tribunal to which he is amenable, no punishment to which he can be subjected without involving the crisis of a national revolution.. 6

Impeachment, ultimately, is a political remedy for official misbehavior, probably not as broad as Ford wished, but much broader than requiring criminal acts. That's something Trump fails to understand. He could be impeached, for example, for running off to the golf course in the midst of a crisis. Thomas Jefferson almost was impeached (an inquiry into his actions had begun) when, as governor of Virginia, he failed miserably in warning citizens of the British attacks. 7 

Given that the impeachment requires that two-thirds of the Senate vote to convict, a very high bar, indeed it means almost by definition that it be bi-partisan. It's also final. There is no appeal. Once convicted the official is out. Period. He could then be indicted for criminal acts should that be desired. Nixon avoided all of that thanks to Ford's pardon. Whether Pence would be equally kind might depend on the nature of the investigations outcomes.

This is just scratching the surface, but Trump and his lawyers would be well-advised to begin reading some history and to start thinking about their options

Sources

1. "Trump Lawyer Claims the "President Cannot Obstruct Justice"," Axios, n.d. https://www.axios.com/exclusive-trump-lawyer-claims-the-president-cannot-obstruct-justice-1513388369-032ba40d-55c3-42d6-bdf9-d6399ed7a2ce.html.


2. Gerald Ford, Remarks in the U.S. House of Representatives in an effort to impeach Supreme Court Justice William O. Douglas (15 April 1970), (Congressional Record, vol. 116, 11913, 1970), accessed April 15, 1970, 


3. "When Five Supreme Court Justices Said a President Can Be Indicted," Just Security, last modified January 2, 2018, https://www.justsecurity.org/44264/supreme-court-justices-president-indicted/.


4. Amar, Akhil Reed (1999) "On Impeaching Presidents," Hofstra Law Review: Vol. 28 : Iss. 2 , Article 1.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol28/iss2/1

Akhil has an illuminating footnote examining the differences between civil and criminal prosecution and why the impact on a sitting president is different. (p. 294)


5. Joseph Story, Commentaries on the Constitution of the United States §1563, pp. 418-419 (1833) See also Breyer's concurrence in  Clinton v. Jones (95-1853), 520 U.S. 681 (1997)

6. Alexander Hamilton, James Madison, John Jay (2007). “The Federalist Papers”, p.524, Filiquarian Publishing, LLC. 

7. “To Thomas Jefferson from John Beckley, enclosing a Resolution of the House of Delegates, 12 June 1781,” Founders Online, National Archives, last modified February 1, 2018, http://founders.archives.gov/documents/Jefferson/01-06-02-0089. [Original source: The Papers of Thomas Jefferson, vol. 6, 21 May 1781–1 March 1784, ed. Julian P. Boyd. Princeton: Princeton University Press, 1952, pp. 88–90.]