A valedictory at the end of the Trump impeachment

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By Frank Bowman

Over the past 4-5 months, after the Ukraine story broke and impeachment wended its way through the House and Senate, I’ve had the honor to do a great many interviews for print and broadcast media. What I anticipate to be the last one occurred on the English-language channel of France24. The link to it follows. All-in-all, it’s not a bad summary of my reactions to what happened, as well as some cautious predictions about what it will all mean hereafter.

https://www.france24.com/en/video/20200210-franck-o-bowman-iii-on-the-end-of-trump-impeachment-trial

No, Professor Bowie (& Professor Dershowitz) impeachment does not require a chargeable crime

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By Frank Bowman

About a year ago, a bright young professor at Harvard Law, Nikolas Bowie, wrote an article claiming that the phrase “high crimes and misdemeanors” required proof of a crime. This opinion is so contrary to all the learning on the subject since the founding and before that I was moved to write a response, which you can find here. I figured back then that his heterodox view would resurface should Mr. Trump ever be impeached. It has, forming a part of Alan Dershowitz’s arguments on behalf of Trump.

Professor Bowie is wrong. I won’t repeat all the arguments establishing that point that I made a year ago on this site. You can find them here. However, inasmuch as his opinion may assume outsize importance over the next few weeks, some additional observations are called for, particularly in response to observations he has made today on Twitter defending his perspective.

As I previously observed, Professor Bowie simply ignores all the historical evidence from 1386 through the founding about the origins and meaning of the phrase “high crimes and misdemeanors.” That evidence demonstrates unequivocally that the phrase was a term of art employed virtually exclusively in impeachment and that it embraced a wide array of misconduct by government officials that was not criminal. Moreover, it is indisputable that the framers were aware of the phrase’s origins and that it included non-criminal conduct. For a full summary of the relevant history, see this summary I wrote for The Atlantic.

But for the present consider only two incidents.

First, when the Constitutional Convention convened in Philadelphia in the summer of 1787, the English-speaking world was riveted by the commencement of impeachment proceedings against Warren Hastings, governor general of Bengal. Few if any of the charges against Hastings were indictable crimes, but that was immaterial to Edmund Burke, the principal parliamentary prosecutor of Hastings. He said the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”

More critical than Burke’s view of Hastings’ alleged wrongdoing was the opinion of the American framers across the sea. When George Mason rose to object that “treason and bribery” only covered too little offensive conduct, he said:

“Why is the provision restrained to treason and bribery only? Treason, as defined in the Constitution, will not reach many great and dangerous offenses. Hastings is not guilty of treason. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachment.”

Mason then proposed that “maladministration” be added. When that was objected to, he suggested “high crimes and misdemeanors,” which was readily accepted.

Mason wanted an impeachment provision that would cover the kinds of offenses charged against Hastings, which were non-criminal abuses of official power. And there is every reason to believe that Mason (and Madison and the rest) believed “high crimes and misdemeanors” fit that bill.

As for whether the rest of the founding generation understood “high crimes and misdemeanors” to embrace non-criminal behavior, consider but one other case. In 1774, the Massachusetts colonial assembly impeached Chief Justice Peter Oliver for the sin against colonial autonomy of accepting the salary prescribed by Parliament for colonial judges instead of the stipend voted by the assembly. This was obviously no crime, yet the assembly described his conduct in the articles of impeachment as “certain high crimes and misdemeanors.” The Oliver case was a colonial cause celebre. It was a primary cause of the complaint against King George written into the Declaration of Independence that, “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

Critically, both the intimate facts of the Oliver case and the particular verbal description of his conduct were well known to many men who participated in drafting or ratifying the Constitution. Nathaniel Gorham both voted for Oliver’s impeachment and later served as Chairman of the Committee of the Whole at the constitutional convention. Seventeen other men both voted on the Oliver impeachment and served as delegates to the Massachusetts ratifying convention. All of them knew that “high crimes and misdemeanors” had been used in both England and America to describe non-criminal official conduct.

Moreover, multiple framers were explicit in their assertions that various kinds of non-criminal behavior by presidents would be impeachable, including abuse of the pardon power (Madison and George Nicholas), violation of the foreign emoluments clause (Edmund Randolph), convincing the Senate to ratify a treaty that “violated the interest of the nation” (Madison), and “wanton removal of meritorious officers” (Madison).

In Federalist 65, Alexander Hamilton not only spoke of impeachable offenses as being in their essence “POLITICAL,” but went on to describe the nature of impeachments this way: “[An impeachment proceeding] can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.” In other words, impeachable offenses are not constrained by the prior definitions afforded by pre-existing law in ordinary courts.

It simply cannot be plausibly maintained that the architects of the constitution would be publicly contending that the constitution contemplated impeachment for conduct not previously barred by law if they had written the constitution to prohibit that precise outcome.

Professor Bowie really has nothing to say about the overwhelming evidence that the founding generation understood impeachable offenses as extending beyond criminal conduct. Or about the fact that, for example, the first successful impeachment and conviction in American history was the 1803 removal of Judge John Pickering, whose offenses were making erroneous legal rulings, drunkenness, profanely invoking “the name of the Supreme Being,” and (probably) being insane. Or about any of the handful of other later impeachments in which American officials were impeached for, and sometimes convicted by the Senate of, non-criminal misbehavior.

Professor Bowie’s interpretive argument seems based primarily on two premises:

First, he points to the trial-like features of the House and Senate impeachment process and the constitution’s use of terms like “convict” or “conviction” to describe the Senate’s verdict. He also observes that sometimes the constitution uses the word “offence” in relation to conduct deemed impeachable. I won’t repeat here my earlier explanation of why the use of such terms simply cannot bear the interpretive weight he places on it.

Second, Bowie’s real argument seems to be a syllogism: (1) removal from office following impeachment is a criminal punishment, (2) the ex post facto clause bars punishment for conduct not previously defined as criminal, and (3) therefore impeachable offenses can only be previously defined crimes. But like any syllogism, this one fails if the initial premise is incorrect.

In his article, Bowie offers no evidence that removal upon impeachment was ever thought by the framers to be criminal punishment, or indeed that the simple fact of removal from public office has ever been categorically deemed a criminal punishment. He simply asserts that disqualification “is undoubtedly punishment.”

In my original response to Prof Bowie, I explained why his position is in tension with basic criminal law theory. Here I will only add that his view was long ago rejected by authorities such as Justice Joseph Story, who in his famous 1833 Commentaries on the Constitution, explained the character of American impeachment, saying: “[A]n impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.”

Moreover, and curiously, for one so reliant upon the textual nuances of the constitution’s impeachment clauses, Prof. Bowie fails to account for the passage of Article One that effectively disproves his premise:

[J]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Note that the framers do NOT say, “Punishment in cases of impeachment shall not extend further….” The consequence of conviction in an impeachment is carefully called a “judgment.” The word “punishment,” the word critical to Bowie’s argument, appears only later in the sentence describing, not what happens in consequence of impeachment, but what may happen in another, expressly separate, proceeding in an ordinary court.

And that’s the whole point. As I explained in my first response to Professor Bowie, the framers expressly, and designedly, stripped American impeachment of all the characteristically criminal punishments that Parliament had the power to impose upon conviction in British impeachments. The framers did that because they recognized British impeachments had long been criticized for imposing punishments for conduct not previously deemed criminal. And they did it precisely because they intended impeachment to be a mechanism separate from the criminal courts, but available to address political wrongdoing that was dangerous to the Republic, but that had never previously been defined as criminal by statute or common law.

That Prof. Bowie has totally missed the point is driven home by one of his tweets today in which he suggests that because Wm Blackstone, the famous 18th Century treatise author, refers to British parliamentary impeachments as criminal, then American impeachments must be, as well. No. No. A thousand times no. British parliamentary impeachments were essentially criminal in character because they imposed characteristically criminal punishments. The American framers removed the criminal punishments and thus consciously altered the fundamental character of impeachment in this country.

Finally, Prof. Bowie suggests somewhat plaintively in another tweet that he did not invent the argument that American impeachment requires proof of crime. That is, of course, true. The argument has been raised as a matter of course by practically every defendant in every American impeachment since 1788. It was, as he observes, raised by Justice Benjamin Curtis acting as defense counsel in the impeachment of Andrew Johnson. But the fact that a defendant or his counsel makes an argument does not make that argument a correct statement of constitutional law, even if, as in the case of President Johnson, the Senate does not muster the votes to convict him.

Prof. Bowie in a tweet has characterized my unequivocal rejection of his argument as “uncharitable.” That it may be. If so, I apologize for my lack of charity. But Prof. Bowie has resurrected an old and long-discredited canard, and the importance of the question to the present national crisis leaves little room for the customary academic courtesies.

Busy day as House managers named & transmission of articles approved

Lots of talking for Professor Bowman today. The day began with an hour on CSPAN talking about impeachment and the upcoming Senate trial. For those interested, you can watch at this link. https://www.c-span.org/video/?468101-5/washington-journal-frank-bowman-previews-senate-impeachment-trial

The role of the Chief Justice in an impeachment trial

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by Frank Bowman

Several days ago, I composed for SCOTUSblog an analysis of the likely role of Chief Justice Roberts in the upcoming impeachment trial. You can read that piece at this link.

Mr. Whit McKinley, a learned attorney from Jackson, MS, read my piece and sent me a thought-provoking response by e-mail. With his permission, I reproduce it below:

Professor Bowman 

Your article on SCOTUSblog is a good piece on the constitutional text and likely role of the Chief Justice in President Trump’s impeachment trial.  I enjoyed it greatly. 

On balance, I agree that Chief Justice Roberts is unlikely to be, or would wish to be, the captain of the ship in the impeachment trial (to mix a metaphor).  However, I do believe that you overstate your case that merely “having a judge preside implies that the process will be akin to a conventional judicial trial.”  In two of the cases that you cite, the Samuel Chase and Samuel Johnson impeachments, the presiding officials (VP Burr and CJ Salmon Chase respectively) put significant pressure on the Senate to make the process more judicial than mere politics would require.  In both of those cases, the Senate membership was composed of more than 2/3rds of the opposing political party to the impeached officer.  And in both cases, rather than a brief trial and easy conviction (that the supermajority of Senate members anticipated), the presiding officers wielded significant power in their roles that, in fact (as opposed to implication), created a proceeding that was more judicial than merely political.  

In the Chase trial, Burr (likely because he was not a friend of Jefferson) stated that he would hold any Senator being absent (or eating or talking) during the questioning in contempt.  He stated further that he was well-aware that the Senators could overrule him, but that he looked forward to reading the names of every individual Senator who felt they need not pay attention to the proceedings published in the paper the next morning.  Ultimately, the Senate settled down and Chase presented a full defense.  The trial lasted 30 days and Chase was not removed from office.  Likewise, in the Johnson impeachment, Chief Justice Salmon Chase used a wide variety of procedural presiding powers in deciding to take up which motions first, what constituted a proper motion, etc.  In the end, the trial was the longest on record and President Johnson was not removed from office.  As you note in your article, the Senate could have overruled  any of Salmon Chase’s rulings (and did some of them), but in both trials the presiding officers rulings were made in such a way that doing so was not worth the cost to the members of the Senate. 

All of this is not to say that the Chase and Johnson trials are similar to the current situation, the issue in the current impeachment is quite different.  There is no risk of a runaway Senate convicting Trump on a partisan basis alone.  In this circumstance there is a concern of the inverse, that in a rush to acquit (the acquittal being a nigh-certainty) that there will not be a trial but a purely partisan proceeding.  I would posit that the Chief Justice has no concern about the outcome of the trial (factually or constitutionally), but he does have great concern for the legitimacy of both the Constitution and the law, which in this circumstance includes the concern that he as presiding officer is trapped in a proceeding that is devoid of a judicial meaning.  I believe that he will not likely have to work very hard to see that those minimal standards for a judicial proceeding are well-met (trappings to the skeptical mind).  Nevertheless, he can insist on them.  I submit that you leave out the one power the Chief Justice retains that makes his role indispensable, and creates not a mere implication, but the requirement of a judicial trial.  

A Chief Justice must attend the Senate trial to have a valid impeachment.  The requirement of him presiding, as an element of a constitutional acquittal or conviction, provides ample authority to the Chief Justice to require the Senate to meet the judicial process requirements on which he may insist.  If not, the Chief Justice may simply retire to his usual chambers across the street, at which time the trial cannot proceed.  This power is one that has been discussed in a number of Johnson impeachment articles.  Again, I highly doubt such would occur, but it is a sword of Damocles of which the Senate (and Chief Justice Roberts) is doubtless aware.  I believe it would be relatively simple to work out a compromise to meet the presiding officer’s needs.  I agree with you that those needs very likely will be met, but the Chief Justice may require that they be.  Assuming they are, a Rehnquist-like role is one that I, like you, would expect.

Thank you again for your good article.  I spend an inordinate amount of time reading and pondering on these issues, which will never arise in my daily practice.  I am grateful to have the opportunity to write you as to my thoughts so rarely expressed for want of a forum. 

Sincerely,

Whit

William W. McKinley, Jr., Esq.

         Currie Johnson & Myers

         P.O. Box 750,  Jackson, MS 39205

The senatorial oath requirement in impeachment trials

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By Frank Bowman

Over the past few weeks, the requirement of Article I, Section 3, of the Constitution that senators, when sitting in trials of impeachment, “shall be on oath or affirmation,” has provoked some heated discussion. The Constitution does not prescribe a particular form of words, but, by tradition, senators now declare that, “I, [name], solemnly swear, (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachment now pending, I will do impartial justice, according to the Constitution and laws: So help me God.”

Democrats have decried Senate Majority Leader Mitch McConnell’s statement that he is not impartial and will coordinate trial strategy with the White House as a preemptive violation of this oath. Others have suggested that the oath implies an obligation by all senators to pursue relevant evidence by adopting rules that authorize Senate subpoenas to recalcitrant administration witnesses.

These may be effective rhetorical ploys, but as a constitutional matter, the oath requirement probably doesn’t compel any particular action.

In truth, we don’t really know what the Framers had in mind with the senatorial oath requirement. Some commentators have suggested that it was meant to emphasize that the Senate proceeding, in which the Senate has “the sole power to try all Impeachments,” is to be a trial-like process with trial-like rules. But that’s pure speculation, and it doesn’t really help very much even if true. To say that an impeachment trial should have some attributes of trials in other settings just doesn’t get us very far.  The Supreme Court, in its only case on the minimum requirements for a Senate impeachment trial, U.S. v. Walter Nixon, said that the word “trial” doesn’t imply any particular procedural rules.  In essence, it found that the Senate can adopt pretty much any rules it likes short of deciding cases by coin flip.

Moreover, trying to analogize Senate trials to, for example, ordinary jury trials and senators to jurors (or even judges) just doesn’t work. The distinctive function of criminal and civil trial juries is that the judge tells them the law — i.e., what facts the plaintiff or prosecution must prove — and then the jury is to perform the very narrow task of deciding if the facts have been proven to the requisite degree of certainty (beyond a reasonable doubt in criminal cases, or to a preponderance of the evidence in civil trials).  Juries are never asked if the facts they have found should matter. 

For example, if the CEO of a corporation is tried for fraud, the jury is asked to decide whether Elements A, B, C, and D of the crime the law calls “fraud” have been proven, but they are not asked if fraud should be a crime in the first place.  Nor are they asked to consider whether this particular fraud by this defendant under these circumstances ought to be excused because it’s just not serious enough. Nor are they allowed to decide to wave away the whole affair because, on balance, the defendant has been a good CEO and removing him would be bad for the corporation.

Yet this is exactly what the senators are charged with doing in an impeachment case.  They find facts, yes, but they are also the judges of the law, by which I mean the questions of whether the proven facts amount to an impeachable “high crime or misdemeanor” and whether the president’s conduct ought to result in removal from office.

What’s more, unlike jurors in a court case, or even judges in such cases, senators as a body are not bound by any preexisting rules of procedure or evidence.  They are entitled to make such rules as seem appropriate to them at the outset, and to change them by majority vote in the middle of the trial if they like. 

In the end, I think the oath requirement has, and perhaps was intended to have, three related functions. First, it emphasizes the solemnity of the occasion.  Second, it admonishes senators to be honest in their judgments of the facts and, so far as possible, not swayed by partisan allegiances or personal political considerations.  Third, it reemphasizes the oath senators take upon assuming office to support and defend the constitution insofar as the impeachment trial oath charges senators with making judgments consistent with maintenance of constitutional order and promotion of the national interest. 

Therefore, one can fairly argue that the oath requirement calls senators to examine their motives and their consciences both when framing the original trial rules and in subsequent votes on process and substance.  Such an examination should tilt in favor of insistence on full production of evidence by the administration.  It should also, at least in my view, dispose senators to uphold the law, long-accepted norms of presidential behavior, and the institutional prerogatives of their own chamber even at some political risk.

Sadly, however, other than as a basis for an appeal to conscience, and when that fails, as a rhetorical club with which to thrash Republican senators, I don’t think the oath requirement has much practical value.

The "withhold the articles" strategy makes no sense

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By Frank Bowman

In The Atlantic this morning, I argue that the strategy being bruited about in the House of withholding the articles of impeachment to induce rule changes in the Senate trial is both futile and counterproductive. A link to the article follows:

https://www.theatlantic.com/ideas/archive/2019/12/house-dems-cannot-force-senate-fair-trial/603928/

In impeaching Donald Trump, we speak to a watching world.

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By Frank Bowman

Today, I joined with my friend Alan Baron and a group of other distinguished commentators on Politico to consider the likely verdict of history on the impeachment of Donald Trump. The entire series of commentaries can be found at this link. My original submission to Politico was (entirely sensibly) edited for length. I reproduce the original slightly longer version here:

Donald Trump has been impeached by the House of Representatives.  Sometime next month, the Senate will acquit him.  All will proceed as long predicted by the cynics, or, if you prefer, the realists.  Inevitably, some of those realists will adopt a tone of world-weary wisdom and deride the impeachment effort as pointless at best, and as a political blunder at worst.

The realists will be wrong.

I say this regardless of the fact that impeachment will not immediately remove Donald Trump from office, and regardless of the suggestion (implausible though it seems to me) that impeachment may somehow aid him in his reelection. Whatever the short-term consequences, this impeachment is the right thing to do.

It is right because the truth matters. The United States is an inheritor of the Enlightenment conviction that the world is comprehensible, reality is discoverable, and social arrangements should be built on clear-eyed assessments of fact. American democracy depends on a special elaboration of the Enlightenment ideal which insists that truth is not the private property of priesthoods or aristocracies, but is the public province of every citizen, the necessary predicate to informed communal choice.

Our president is a liar. He sits at the center of a web of falsehood, constantly spinning grotesque new entanglements, constantly abetted by his hired sycophants and, more consequentially, by a dark element of the media which finds in Trump the perfect champion of its own impulse to transform the press from arbiter of truth to purveyor of profitable propaganda. Trump’s dishonesty is so integral to his personality and to all his works that to support him requires that one become a liar oneself, or at least to become willfully indifferent to mendacity.

The House impeachment process was essential to the cause of recovering truth as a public value. Without it, Trump’s misconduct in relation to Ukraine would have remained a mere scandalous rumor, blithely denied by Trump and generally ignored by the public. More fundamentally, the hearings in the House Intelligence Committee recaptured, for a blessed moment at least, the world we are in danger of losing, a world in which it is natural for honest public servants to serve their country impartially and speak the truth when they witness a betrayal of its values. This impeachment calls us to renew our mutual obligation of public candor.

This impeachment is necessary because right and wrong matters. It is wrong for an American president to use the vast power given him as a public trust for his private selfish ends.  It is trebly wrong for a president to engage in a contemptible extortion of a vulnerable people struggling to resist foreign aggression, a people aspiring to join the community of free democracies we, until recently, had the honor to lead.  The offense is rendered blacker still when the result is to abet the totalitarian aspirations of Vladimir Putin and to damage our own security and that of democratic Europe.

Until the ascendance of Trump, no serious person of either party would have defended any particle of what Trump did in Ukraine.  It was simply, and unequivocally, wrong. And considered in the round, it is the quintessence of the “violation of … public trust” for which the founders designed the impeachment remedy.

This impeachment is inescapable because the constitution must be defended. The framers wrote into the constitution a president of limited powers, not a king.  Trump’s plain ambition, plainly announced, is for personal rule, unfettered by law, rule, regulation, judge, or Congress itself. In this, he is being actively encouraged by populist ideologues, white nationalists, unitary executive zealots, and media screamers, while being passively enabled by party functionaries and Republican legislators who know better, but are cowed by the legions easily whipped to fury by his Twitter bile.

The constitution gave Congress many tools with which to assert control over a misguided or demagogic president, but this Congress, or more particularly the Republicans in this Congress, refuse to wield them.  In such a case, the only tool remaining to the one party not under his sway is impeachment. If, in the end, Republicans refuse to either to restrain Trump or to oust him, Democrats at least have the consolation that they sounded the alarm and gave their colleagues the chance to rise to the occasion.

Finally, the value of any public act cannot necessarily be measured in its immediate success of failure. By voting to impeach Donald Trump, Democrats express their faith in, to adapt a phrase from Charles DeGaulle, a certain idea of America. An America that is commonly truthful, unusually generous, customarily trustworthy, instinctively democratic, committed to human freedoms and individual rights, self-protective without being selfish, always imperfect but perennially challenging itself to do better. An America that, to borrow a favorite image from a man Republicans used to revere, at least aspired to be the world’s shining city on a hill.

Loyalty to that certain idea of America matters, as did DeGaulle’s lifelong allegiance to “une certaine idée de la France.”  DeGaulle was a difficult, stubborn, arrogant, sometimes impossible man.  But he proclaimed his “certain idea of France” through the darkest time in French history, when the country was occupied by Nazis and its politics dominated by enthusiastic collaborators and cynical defeatists. DeGaulle’s certain idea was in some respects a delusion – a vision of French political and cultural superiority and national glory that had never truly existed in the past and could certainly never be wholly realized in the modern world – but it spoke to Frenchmen’s vision of their best selves.  It sustained them, rallied them, and then inspired them to restoration of a France that could again take pride in itself.

We are assuredly not yet in so dire a strait as Vichy France in 1942. But we are under threat from some of the same resilient external forces, as well as dark internal impulses never entirely vanquished in any culture. It is not hyperbole to suggest that our Republic is in peril. In impeaching Donald Trump for his betrayal of American values, we reassert to each other our commitment to a resurgent democracy.  And we speak not just to each other but to a watching world. We demonstrate that, although for the moment America is in the grip of madness, there remains a sturdy contingent of Americans willing to fight for the hopeful America upon which so many of the world’s highest aspirations depend.

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.]