First Thoughts on the Articles of Impeachment

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By Frank Bowman

I read the newly announced articles of impeachment against President Donald Trump from two perspectives – as a student of impeachment and as an old prosecutor.  Several things stand out immediately.

First, the choice to frame these articles as abuse of power and obstruction of Congress’s impeachment investigation is sound. Abuse of power has been one of the impeachable “high Crimes and Misdemeanors” of Anglo-American constitutional practice since the 1300s, and it has recent powerful precedent in the case of Richard Nixon. Obstruction of an impeachment investigation was not only the basis of one of the articles voted out of the Judiciary Committee against Nixon, but such behavior may strike even more deeply at the heart of constitutional order than other presidential abuses. If, as is now the case under the Justice Department’s self-imposed rule, sitting presidents may not be indicted, the only check on egregious presidential misconduct is impeachment. And when, as is now the case under the Barr Justice Department, prosecutors decline either to investigate presidential misconduct or to assist in the enforcement of congressional subpoenas, a president who misbehaves and then brazenly stonewalls congressional inquiries becomes an elected king unless Congress can impeach him for his defiance of their authority.

Second, I am very pleased that the Judiciary Committee avoided the temptation to call Trump’s behavior in relation to Ukraine “bribery.”  For a period, the term was in vogue among House members, the thought being that it is a freestanding textual basis for impeachment – “treason, bribery, or other high crimes and misdemeanors – and that it would be easier to explain to the average person.  But the most obvious lesson of the testimony of the four law professors at last week’s Judiciary Committee hearing was that the definition of bribery for purposes of impeachment is uncertain, and an article on that ground would open an array of technical questions that merely confuse the issue.

Third, I understand the decision not to base any individual article expressly on Trump’s dalliance with Russian election interference in 2016 or the second volume of the Mueller Report relating to obstruction of the investigation into Russian meddling.  Although the substance of Mueller’s evidentiary presentation was very strong – the report contains overwhelming evidence of presidential obstruction – the report failed as a persuasive document and Mueller failed as a persuasive witness before the Judiciary Committee. For at least half the public, it’s old news and not sufficient for impeachment. 

Moreover, one of the few points on which Judiciary Committee Republicans were correct on Monday was that Democrats are constrained by the calendar.  Given that the Senate is deeply unlikely to convict Mr. Trump regardless of the charges brought against him, the task of the House must be to make the best case they can without dragging the trial into the late spring and summer when the country’s attention should properly be on the election.  Reviving aspects of the Mueller Report as the centerpiece of a separate article of impeachment would take time – more witnesses, more constitutional explanations – time the Democrats realistically don’t have.

Fourth, considering these articles as if they were charging documents in a criminal case, the Democrats have elected for “notice pleading,” a short, simple description of the charge and underlying conduct.  The Nixon articles, by contrast, were what a white collar prosecutor would call a “speaking indictment.”  That is, they laid out a story of misconduct replete with many details and many particular bad acts.  That was appropriate in Nixon because he was impeached, not for one bad incident, but for a long-running pattern and practice of misbehavior and cover-up. The narrow scope of the case against Trump favors the simpler form.

Finally, both articles nonetheless include language framing Trump’s Ukraine misconduct as part of two larger patterns – “previous invitations of foreign interference in United States elections” and “previous efforts to undermine United States government investigations into foreign interference in United States elections.”  These phrases permit House Managers presenting the case in the Senate to bring aspects of the Mueller investigation and related matters into the conversation.  On the optimistic assumption that at least some Republican (and wavering Democratic) senators remain persuadable, placing Ukraine in the larger frame of Trump’s persistent malfeasance advances the objective of demonstrating that the Ukraine extortion was not an one-time anomaly, but an exemplar of a pattern of conduct sufficiently serious to merit conviction and removal.

A wonderful guide to impeachment from the BBC

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Readers may enjoy a BBC podcast program that just came out earlier this week on the history of impeachment from ancient times to the modern day. https://www.bbc.co.uk/programmes/m000bm83

It’s truly marvelous.  The very best thing of its kind I’ve heard.  A combination of live voices, recorded material from the past, actors recreations, and a terrific narrative line.  It’s good enough that I would recommend it to anyone, regardless of their existing degree of knowledge about impeachment who wants a thorough and immensely engaging hour-long primer on the subject.  I may, of course, be biased because I have the honor of joining former Representatives Elizabeth Holtzman and William Cohen, John Dean, author Brenda Wineapple, former Clinton staffer Sidney Blumenthal, and former Sen Chuck Hagel as the live voices on the program.  But I don’t think that unfairly skews my appraisal of its merits.

If you’re interested in impeachment and have about 50 minutes to listen, you really should.

1941 – A Parable

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By Frank Bowman

Return with me now to April 1941. Germany has overrun France and all of western Europe. The British saved their army the previous year with a fighting withdrawal from Dunkirk. But their cities are being blasted from the air by the German Blitz and their ocean supply lines are being strangled by German U-boats. The freedom of the last island bastion against Hitler’s tyranny hangs by a thread.

In March, the U.S. Congress had passed the Lend-Lease Act, permitting America to lend or lease (rather than sell) military supplies to any country deemed “vital to the defense of the United States.”  Britain is cash-strapped and desperate for the gusher of food, arms, and equipment America’s farms and factories could provide under the terms of the new bill.

But somehow the aid is mysteriously held up. Prime Minister Churchill calls President Roosevelt on the newfangled transatlantic telephone.

CHURCHILL: Mr. President. A great pleasure to speak with you. This island is in grave danger of being starved out of the war against the Nazi menace. We need supplies to carry on the fight. It had been my hope that the generosity expressed in the magnificent Lend-Lease Act would by now be filling the holds of convoys of merchantmen steaming across the Atlantic. I am told, however, that there have been unaccountable delays.

ROOSEVELT:  You’re right. We’re generous. I’m generous. The most generous. Do a lot for you, I guess you call it England. Or Britain. Or whatever. More than anybody. A lot more than those Frenchies.

CHURCHILL: Our gallant French allies suffered greatly and …

ROOSEVELT: Gallant! Ha!  Buncha frog-eating losers. But we’ve been very, very good to you Brits. I wouldn’t say it’s reciprocal necessarily because things are happening that are not good.

CHURCHILL: Mr. President, I’m sure any issues that impede our two great democracies standing shoulder-to-shoulder against Hitler’s barbarism can be resolved with frank discussions between our military and diplomatic experts.

ROOSEVELT: Don’t know what you got against Hitler. He says nice things about me. Regardless, General Marshall and all my generals, and Cordell Hull and all his Deep State crowd at the State Department say I should let you have the aid. But I’d like you to do me a favor, though.

CHURCHILL: Anything to advance the common cause of the free peoples of the world.

ROOSEVELT: You remember that Wilkie guy I beat in 1940. Greatest victory in history. Biggest crowds. Everybody says so. Well, anyway, Wilkie’s married, but I hear he’s got action on the side. Van Doren’s her name. I hear she wrote letters to some dame in London, spilling it all. If I had those letters, that’d fix his wagon for 1944.

CHURCHILL:  Mr. President, I’m not sure…

ROOSEVELT: Oh, and one other thing, Doug MacArthur.  He’s out in the Philippines now. May need him as a general if the Japs get frisky. But he’s got White House fever. Some people say his wife had shady dealings with bankers in your Singapore colony before the war.

CHURCHILL: We looked into that. There was nothing to the rumors.

ROOSEVELT: Just announce you’re reopening an investigation. That’ll do fine.  Until then, good luck with those U-boats.

***

This fictional dialogue reads like farce because we cannot imagine Franklin Delano Roosevelt extorting personal political favors as the price of keeping Britain free and an ally against spreading dictatorship. Indeed, it is impossible to envision any of the historical moments that defined America and tested its presidents and insert into the frame a personality as ignorant, as rude, as shallow, as self-interested, and as unprincipled as Donald Trump.  But the analogy between my farce and Trump’s real-world extortion of a Ukraine besieged by expansionist Russia is far too close for comfort.

Precisely because it is impossible to imagine an American president from our rightly storied past acting like Donald Trump does every day of our frighteningly diminished present, his enablers and acolytes are forced to pretend that events which undeniably happened never happened at all. 

Or worse, as the evidence becomes so overwhelming that even some Republicans grudgingly admit the facts of Trump’s conduct, some defend him with an unpardonable libel on every one of his predecessors – that it is normal, or at least unexceptional, that an American president should leverage the massive power of the United States to against an imperiled democracy for personal gain.

Donald Trump will pass. That’s certain.  What is achingly uncertain is whether he –and those who cling to him – will warp our conception of ourselves so far that we can never recover the essential decency that is the core of the American identity and the true source of our power among the nations.

[Historical footnotes: Wendell Wilkie reportedly did have an extramarital affair with a Ms. Van Doren. The reference to “shady dealings” by Gen. McArthur’s wife is my invention; so far as I know, Mrs. McArthur never had any connections in Singapore and was rigorously correct in her private life.]

A comparative look at American & Brazilian impeachment practice

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What follows is another in a series of contributions from the terrific students in my Georgetown Law Center seminar on “Impeachment Power and the American Constitutional Balance.” __ F. Bowman

By Hugh Rosenberg

Donald Trump has been embroiled in scandal after scandal. Many of them could have justified his removal from office. Yet, he remains president. Only now, in the wake of the disturbing Ukraine call, is there real movement towards impeachment. Despite this momentum, it remains improbable that Trump will be removed. A number of factors support this prognosis: the high bar to conviction set by the requirement of a 2/3 majority in the senate, the vague standard of impeachable conduct that the Constitution provides, and features of American politics and society extrinsic to the Constitution.

To better understand how impeachments can be brought to completion, it will prove beneficial to survey the impeachment processes of different countries around the world, Brazil’s specifically, in comparison to that of the United States. Brazil stands above the rest as the undisputed champion of impeachment. Since 1990, it is by far the most prominent country – no disrespect to Ecuador, Paraguay, and Peru intended – to have removed two Presidents through the impeachment process. Technically Brazilian President Fernando Collor de Mello resigned before proceedings were completed, but his trial continued and he was found guilty by the Senate.[1] The United States on the other hand, has never convicted a President in a Senate impeachment trial in its 230-plus year history, although the specter of the process and nearly-guaranteed outcome prompted Nixon’s resignation.

Without looking at the respective Constitutions, one might assume that the reason for this disparity is that the procedure for impeachment in Brazil is much less rigorous than that of the United States. In fact, the opposite is true. Removal of a President from office in the United States requires a simple majority in the House of Representatives to impeach and a super majority in the Senate to convict. According to the Brazilian Constitution, a super majority is required in the lower house (the Chamber of Deputies) to impeach, as well as in the upper house (the Senate) to convict.[2] At least facially, it poses a more difficult  challenge to convict a President in an impeachment trial in Brazil than in the United States. So, the fact that conviction of a U.S. President requires a super majority of the Senate does not stand alone as an insurmountable bar to removal.

One explanation for this apparent incongruity is the fractured multi-party system in Brazil as opposed to the extremely polarized binary that exists in America. Representatives from eighteen different parties took part in the 2016 Senate vote to convict Dilma Rousseff.[3] Brazilian Presidents, unlike American ones, are easily left on an island amid the sea of political parties: “… the President can rarely count on a single-party support base large enough to weather impeachment crises.”[4] What’s more, and likely even more damning for a President under siege, is that even if her particular party outsizes the others, she can’t necessarily count on them. “The Brazilian party system is also characterized by a lack of cohesion within parties… The lack of disciplinary measures available to party leaders in most parties makes it less costly for individual legislators to defy party leadership.”[5]

Perhaps impeachment is so difficult to accomplish in America because no one understands what makes for impeachable conduct. Article II, Section 4 of the U.S. Constitution provides that “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The meanings of treason and bribery are easy enough to tease out. Indeed, treason is defined explicitly in the Constitution. It is the meaning of that third element – “high Crimes and Misdemeanors” – that has proven to be frustratingly evasive.

It may be that the Framers of the U.S. Constitution intended the phrase to be somewhat amorphous – amenable to different interpretations in correspondence with different circumstances and contexts. One scholar argues this point convincingly – “The written constitution granted successive generations of legislators the power to identify for themselves the essential characteristics of the American constitutional system and to defend that system by removing its chief executive officer if he or she, by any individual act, pattern of behavior, or culpable inattention, places it at risk.”[6] While the Framers almost certainly had such intentions, it is likely that they failed to foresee the extent to which Congress, and the Senate in particular, would become so hyper-partisan. The flexibility that they intended the phrase to have, with the aim of making it easier to apply, now seems to hinder its application. The current composition of the Senate, split nearly down the middle, with members of both factions entrenched along party lines, makes it difficult for 67 of the 100 Senators to agree on “the essential characteristics of the American constitutional system.”

Impeachable conduct as defined by the Brazilian constitution is simultaneously much broader and more specific than its American counterpart. Section III, Article 85 provides:

Acts of the President that are attempts against the Federal Constitution are impeachable offenses, especially those against the: I. existence of the Union; II. free exercise of the powers of the Legislature, Judiciary, Public Ministry and constitutional powers of the Federation; III. exercise of political, individual and social rights; IV. internal security of the Country; V. probity in administration; VI. the budget law; VII. compliance with the laws and court decisions.[7]

Interestingly, it makes attempts against the Constitution impeachable. Such wording stands in stark contrast to the language in the Constitutions of other countries, such as the Philippines (“…culpable violations of the Constitutions…”[8]), Lithuania (“… grossly violated the Constitution…”[9]), South Africa (“… a serious violation of the Constitution…”[10]), and Romania (“…serious offenses which violate provisions of the Constitution…[11]) While there may be little practical difference between attempts against the Constitution, actual violations, gross violations, and even “high Crimes and Misdemeanors” – the verbiage used in the Brazilian Constitution expresses the desire of its drafters to hold their leaders accountable. The degree of culpability to which a Brazilian President’s bad behavior must rise is, according to the diction used in the different provisions, less than in many nations.

Similarly, though it is difficult to conceptualize what an attempt against the “existence of the Union” or “probity in administration” might look like in concrete terms, the sheer numerosity of named categories makes it easier for those seeking impeachment to associate objectionable conduct with an item on the list. The array of differentiated buckets of impeachable acts, paired with the shallow depth of culpability, leaves a Brazilian President with few outs should he or she become attached to a scandal.  The impeachment of Rousseff illustrates this.

Dilma Rousseff, whose removal was predicated on violations of items V and VI of Article 85 of the Brazilian Constitution, as well of a Fiscal Responsibility Law, was, by most accounts, not as corrupt as many in the government, including those who voted to impeach her.[12] However, Rousseff was not entirely innocent either – “there is broad agreement that Ms. Rousseff’s administration employed budgetary tricks to conceal a looming deficit and enhance her prospects during a bitterly fought re-election campaign in 2014.”[13] Her conduct, though hardly heinous, could be fairly construed as an “attempt against the budget law.” While her ouster may have been unfair, especially relative to the corruption of her adversaries, it was not a coup. As one Brazilian law professor put it, “[Rousseff’s crimes] are not penal crimes, so you cannot be put in prison because of them, but you can lose your mandate.”[14] A prominent historian noted that Rousseff’s impeachment was entirely consistent with the country’s Constitution in that it followed the law and was subject to judicial oversight.[15]

            The context surrounding the drafting of the 1988 Constitution supports the inference that its impeachment provision was designed to be executed despite a low level of culpability on the part of the President. The new Constitution arose at a time when Brazil had just emerged from more than two decades of military rule.[16] The two previous Constitutions served to perpetuate the regime above all else. They “heavily centralized power in the Executive and badly distorted separation of powers. Each transferred large amounts of power to the federal government from the states and local governments, and from the legislature and judiciary to the executive. None provided any serious protection for individual rights.”[17] In response to this dark period of Brazilian history, and to lay the foundation for a brighter future, the new Constitution looked much different. “The 1988 Constitution was designed to weaken the executive and to strengthen the legislature and judiciary. Indeed, initial drafts adopted a parliamentary rather than a presidential system of government. The present Constitution makes the President accountable to Congress…”[18] Removal is one such check on executive domination and can be accomplished through two avenues – in the manner described above – and through a criminal prosecution initiated by the lower house and tried by the Supreme Court.[19] The Brazilian Constitution also has in place measures, unincluded in the American Constitution, that prevent final fits of misbehavior when a President realizes that he or she is on the way out. “[A]n indicted President is suspended from office as soon as the Supreme Court receives the criminal accusation, while an impeached President is suspended from office as soon as proceedings are instituted in the Senate.”[20]

            So, structural differences account for some of the greater success of Brazilian impeachment than American, but certainly don’t tell the whole story. Mass protest in Brazil seems to play a critical, clinching role in sealing a President’s fate once the political tide has started to turn against him or her. Following a major 1992 corruption scandal involving Brazilian President Collor, 100,000 young people, faces painted with the colors of the Brazilian flag, took to the streets demanding his removal.[21] Again in 2016, subsequent to corruption allegations against Dilma Roussef, as many 3 million protesters marched across the country, once more clad in yellow-and-green, literally making their voices heard with chants of “Dilma Out!”[22] The rampant corruption that persists in Brazil today, the dismal state of the economy, and a history of violence and oppression vivid in living memory have fostered a dynamic where the average citizen is more than willing to loudly voice his or her discontent in demand of change.

These conditions are obviously much less prevalent in the United States, and thus, despite the brazen corruption emanating from the current White House, Americans aren’t quite sure how to react. Indeed, a sizeable portion of the population persists in fully supporting the actions of the President and his administration. Yet the tradition of protest isn’t entirely foreign to America, having come alive at important moments in the country’s history – from the Vietnam War, to the Civil Rights Movement, all the way back to the Boston Tea Party – and has precipitated change. The kind of sustained, truly popular outcry seen in Brazil’s recent history, and in America’s more distant past, might be what is needed to finally get an impeachment all the way over the hump in America.


[1] Kada, Naoko ‘Impeachment as a Punishment for Corruption?’. Checking Executive Power, edited by Jody C. Baumgartner and Naoko Kada. Praeger, 2003, pp. 122-123.

[2] Articles 52 & 53 of Brazil’s Constitution. 

[3] “Dois Senadores Do PR Votaram Contra Impeachment.” CORREIO DO LAGO, 12 May 2016, https://web.archive.org/web/20160623190625/http://www.correiodolago.com.br/noticia/dois-senadores-do-pr-votaram-contra-impeachment/34033/.

[4] Kada, supra, at 116.

[5] Id.

[6] Bowman, Frank O. High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. Cambridge University Press, 2019, p. 111.

[7] Article 85 of Brazil’s Constitution.

[8] Article XI, Section 2 of the Philippines’ Constitution.

[9] Article 74 of Lithuania’s Constitution.

[10] Provision 89 of South Africa’s Constitution.

[11] Article 95 of Romania’s Constitution.

[12] The Editorial Board. “Making Brazil’s Political Crisis Worse.” The New York Times, The New York Times, 13 May 2016, https://www.nytimes.com/2016/05/13/opinion/making-brazils-political-crisis-worse.html.

[13] Jacobs, Andrew. “Brazil Impeachment Debate Hinges on a Thorny Legal Question.” The New York Times, The New York Times, 20 Apr. 2016, https://www.nytimes.com/2016/04/20/world/americas/dilma-rousseff-impeachment-brazil.html?module=inline.

[14] Id.

[15] Id.

[16] Rosenn, Keith S. “Separation of Powers in Brazil.” Separation of Powers in the Americas … and Beyond Symposium Issue, Duquesne Law Review, Fall 2009.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Rezende, Tatiana. “UNE 70 Years: “Fora Collor: The Cry of Face-Painted Youth.” EstudanteNet – Portal Oficial UNE e UBES, https:web.archive.org/web/20070903131454/http://www.une.org.br/home3/movimento_estudantil_20007/m_9920.html.

[22] Flynn, Daniel. “Record Brazil Protests Put Rousseff’s Future in Doubt.” Reuters, Thomson Reuters, 14 Mar. 2016, https://www.reuters.com/article/us-brazil-rousseff-protests/record-brazil-protests-put-rousseffs-future-in-doubt-idUSKCN0WF0IX.

The White House letter

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By Frank Bowman

In an article first published on “Just Security” (link here) and then in Slate (link here), I address the letter from White House counsel Pat Cipollone announcing a policy of complete non-cooperation with the House impeachment inquiry. Suffice it to say, I find the letter’s reasoning wholly unsupported in law, history, or logic.

Trump’s Betrayal of American Foreign Policy and Why the Founding Fathers Would Have Impeached Him

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This semester, I have the pleasure of teaching a seminar titled, “The Impeachment and the American Constitutional Balance” at Georgetown Law School. From time to time, I may post the work of some the students in that seminar. Here is one such contribution. — F. Bowman

By Hamdi Soysal

            Based on the number of House Democrats in favor of an impeachment inquiry,[1] President Donald J. Trump will likely be the third president to be impeached in American history, barring unforeseen circumstances. What united the Democrats behind impeachment – more than the Mueller Report, illegal hush money payments to a pornstar, or his alleged violations of the Emoluments Clause – was the President’s request from Ukraine to investigate one of his potential rivals in the 2020 election.[2]

            There are many reasons why the Ukraine affair is unworthy of the Office of the President of the United States. One is its blatant compromise of the nation’s foreign policy and consequently, national security. The favor the President asked for in his now-infamous call with the Ukrainian President Zelensky was not closer cooperation against U.S. adversaries, more intelligence-sharing, or participation in a foreign policy that would make the U.S. safe. It was help with his reelection.[3]

            Although in a different context, the possible betrayal of American foreign policy for personal gain was in the minds of the Founding Fathers while defining impeachable offenses at the 1787 Constitutional Convention in Philadelphia. On the way to their confining those offenses to “Treason, Bribery, [and] High Crimes and Misdemeanors,”[4] James Madison said impeachment is required because the president “might betray his trust to foreign powers.”[5] Similarly, he argued at the Virginia ratifying convention that a president who made a treaty that “violated the interest of the nation” could be impeached.[6] At the same convention, Edmund Randolph said a president “may be impeached” if discovered “receiving emoluments from foreign powers.”[7] 

            The framers’ concerns with undue foreign influence were not limited to the impeachment context. One measure they enacted was the aforementioned Emoluments Clause,[8] over which the Second Circuit recently revived a lawsuit against Trump.[9] Moreover, in his farewell address, George Washington mentioned the “insidious wiles of foreign influence,” deeming it “one of the most baneful foes of republican government” and urging the nation “to steer clear of permanent alliances with any portion of the foreign world.”[10] Likewise, in a 1787 letter to Thomas Jefferson, John Adams wrote that he understood Jefferson’s apprehension of “foreign Interference, Intrigue, Influence.”[11] Concerned about corruption in the political system, Adams argued that America should not conduct elections often, because “as often as Elections happen, the danger of foreign Influence recurs.”[12] Similarly, Alexander Hamilton wrote in his Federalist Paper Number 68 about the dangerous desire of foreign powers to “gain an improper ascendant in our councils.”[13] 

            The Founders could not have been clearer: there should be no foreign interference in the American democracy, and no president should be urging such interference. As some legal scholars opined, using the Office of the President of the United States for personal political benefit fits both the standard understandings of bribery and the broader category of high crimes and misdemeanors.[14]

            However, the same Founders who repeatedly warned about the danger of foreign interference in elections and the corruptibility of the president by foreign influences also gave the president authority over most aspects of foreign affairs. The Founders gave Congress the power to declare war, raise armies and provide for other aspects of national defense,[15] but it is the president who appoints ambassadors, negotiates treaties, and deals with other heads of state.[16]

            This raises a conundrum: Does the discretion granted to the president in the realm of foreign affairs mean that he should not be as vulnerable to impeachment over a situation like the Ukraine affair? One answer to this could come from the constitutional law of separation of powers. Although not in response to an impeachment setting, in his famed concurrence in the seminal Youngstown Sheet & Tube Co. v. Sawyer case, Justice Robert Jackson laid out three categories of presidential authority vis-à-vis Congress.[17] The first category is “when the President acts pursuant to an express or implied authorization of Congress,” he explained.[18] Under this category, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”[19] The second category is “[w]hen the President acts in absence of either a congressional grant or denial of authority.”[20] In this case, Justice Jackson opined that “there is a zone of twilight in which he and Congress may have concurrent authority…”[21] Ultimately, when a president acts amid silence from Congress, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”[22] Lastly, a president could take measures incompatible with the express or implied will of Congress. Then, the president’s power “is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter,” Justice Jackson explained.[23]      

             The level of authority President Trump has with respect to the withholding of anti-tank missiles from Ukraine thus in part depends on Congress’s implied or expressed will – or the lack thereof – concerning the matter. When viewed through this lens, it becomes clear that the Ukraine affair falls under Justice Jackson’s third category, where a president could take measures incompatible with the will of Congress and his power “is at its lowest ebb.”[24] Before President Trump’s call with Zelensky, the military aid to Ukraine had already been appropriated with “broad bipartisan support” in Congress.[25] The issue was a “rare foreign policy issue that united members of both parties.”[26] Capitol Hill largely viewed support to Ukraine as a way to deter Russian aggression and secure the region.[27] Based on recent reports, it bothered many in Congress that “the money was being held up without a clear explanation or briefings about a changing policy prescription in the region.”[28]

            The bipartisan reaction in Capitol Hill to President Trump’s withholding of military aid to Ukraine for reasons unbeknownst to them is a good indication that the President acted against the will of Congress. Thus, no matter the discretion granted to the executive in foreign affairs, his authority at the time was at its minimum. In other words, even the ample authority the President has with respect to foreign policy would not be enough to save him from being impeached. If they were here to see the President’s blatant betrayal of the nation’s safety and security, the Founders would definitely agree. 


[1] Alicia Parlapiano et. al., Complete List: Who Supports an Impeachment Inquiry Against Trump (Oct. 3, 2019, 11:00 AM), https://www.nytimes.com/interactive/2019/us/politics/trump-impeachment-congress-list.html.

[2] Transcript of Phone Call Between Presidents Donald Trump and Volodymyr Zelensky, (July 25, 2019, 9:03 AM), https://www.whitehouse.gov/wp-content/uploads/2019/09/Unclassified09.2019.pdf.

[3] Id.

[4] U.S. Const. art. II, § 4.

[5] 2 The Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911).

[6] 3 Jonathan Elliot, The Debates in Several State Conventions of the Adoption of the Federal Constitution 346 [hereinafter 3 Elliot] (statement of James Madison).

[7] 3 Elliot, supra note 3, at 326.

[8] U.S. Const. art. I, § 9, cl. 8.

[9] Zoe Tillman,  A Court Revived Another Lawsuit Against Trump For Continuing To Profit From His Businesses (Sep. 13, 2019, 10:41 AM), https://www.buzzfeednews.com/article/zoetillman/donald-trump-hotel-lawsuit-back-emoluments.

[10] President George Washington, Farewell Address to the People of the United States (1796).

[11] Letter from John Adams, United States Minister to the United Kingdom and Netherlands, to Thomas Jefferson, United States Minister to France (Dec. 6, 1787).

[12] Id.

[13] The Federalist No. 68 (Alexander Hamilton).

[14] Leah Litman, Trump’s Ukraine call mentioning Biden is the strongest reason yet for impeachment (Sep. 24, 2019, 5:45 PM), https://www.nbcnews.com/think/opinion/trump-s-ukraine-call-mentioning-biden-strongest-reason-yet-impeachment-ncna1057921.

[15] U.S. Const. art. I, § 8.

[16] U.S. Const. art II, § 2.

[17] Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 635-38 (1952) (6-3 decision) (Jackson, J., concurring).

[18] The Steel Seizure Case, 343 U.S. at 635.

[19] Id. at 635.

[20] Id. at 637.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Lauren Fox, Stalled Ukraine military aid concerned members of Congress for months (Sep. 30, 2019, 10.30 AM), https://www.cnn.com/2019/09/30/politics/ukraine-military-aid-congress/index.html.

[26] Id.

[27] Id.

[28] Id.

A video explainer from the Wall St. Journal

By Frank Bowman

Those who would like to see an elegant video explanation of the fluidity of the standard for impeachable conduct should watch this piece created for WSJ Video by Jason Bellini. Mr. Bellini was kind enough to make me his on-camera “expert” on impeachment.

https://www.wsj.com/video/impeachment-inquiry-why-high-crimes-is-inherently-subjective/473B83EA-D18E-4E59-80F8-A1701540EE13.html

The impeachability of the Trump-Ukraine contacts: Long form argument

By Frank Bowman

In an earlier post on this site, I expressed my view that Mr. Trump’s interactions with the Ukraine constituted an impeachable offense. The good people at “Just Security,” the premier venue for discussion of law and national security issues, asked me to lay out the complete case for this position. I was pleased to oblige. Those interested can find it at this link

Does the House have to pass a resolution before impeachment inquiry is official?

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By Frank Bowman

Andrew Feinberg of the UK-based Independent just wrote a nice piece on White House preparations and strategy for the coming impeachment fight. He was kind enough to ask me about the argument one commonly hears from the President’s defenders that a really, truly official impeachment inquiry can’t happen without passage of a resolution by the full House of Representatives officially authorizing an inquiry.

Impeachment is one of the powers specifically granted to the House by the Constitution. Article I, Section 2, says, “The House of Representatives shall have the sole power of impeachment.” Article I, Section 5, further states that, “Each House may determine the Rules of its Proceedings.” In sum, the House has plenary authority to conduct impeachments and to set its own rules for doing so.

Nothing in the House rules requires that a resolution be passed before the full House or any committee in it can take steps to exercise the impeachment power. In this respect, impeachment is no different than any other constitutionally-authorized power of the House.

As I told the Independent, the House “doesn’t need to pass a resolution to start [an impeachment inquiry] any more than they need to pass a resolution to engage in appropriations activity.”

One can expect Mr. Trump’s defenders to raise a variety of other “due process” type arguments in the coming weeks and months. This is normal in presidential impeachments. The president’s people nearly always want to slow the process down, and always, quite understandably, want to maximize their opportunities to present the president’s case. Moreover, those seeking impeachment will, almost always, want to be fair, and always will want to be seen to be so. So the tendency is to afford the president and his defenders plenty of chances to air their case and make their arguments.

Still, there is no way the president can force the House to proceed in any particular way. Again, the House has the sole power of impeachment and of making its own rules. More importantly, the question of what procedures the House must use is almost certainly, as we lawyers say, non-justiciable. Which means that, despite what Mr. Trump seems to think, he can’t appeal to the courts on either the substance of articles of impeachment or the procedures the House used to produce them. History makes clear that all such questions are within the control of the House itself.

In 1868, President Andrew Johnson fired Secretary of War William Stanton, the act that triggered his impeachment, on February 21. As I told the Independent, “Three days later, the House voted 168-47 to impeach the President. There’s some due process for you.”

To read the Independent article, see this link