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In my last post, I noted that Mr. Trump has an historically unique propensity for falsehood and I began considering the question of whether a president can properly be impeached for lying.  In that post, I addressed the impeachability of criminally indictable forms of lying.  Here, I consider whether lies that are part of official communications with Congress, but are not indictable, can be impeachable offenses.

James Iredell, one of the first Supreme Court justices, speaking of the impeachment clauses during the North Carolina debates about ratifying the constitution, said that “The President must certainly be punishable for giving false information to the Senate.”  Although he was speaking of the particular situation in which a president was seeking senatorial approval of treaties or other foreign projects, the general principle he espoused was that the legislature as a coordinate branch of government is entitled to rely on a president’s honesty — and can impeach him if he willfully misinforms them on important matters.

There is at least one historical example of an attempt to impeach a president for lying to congress.

Article V of the proposed articles of impeachment of Richard Nixon charged concealment of the bombing of Cambodia through the creation of false military documents.  The House Judiciary Committee did not approve this article, although as I wrote some years ago, its decision not to do so:

probably resulted from a disinclination to inject the explosive politics of the Vietnam War into a case where ample ground for impeachment already existed, rather than a rejection of the principle that the Chief Executive may not intentionally deceive Congress in matters that relate to the legislature’s own constitutional duties.

In my judgment, it would be entirely consistent with the language and purpose of the impeachment clauses to impeach a president for telling congress material falsehoods on subjects that could affect legislative action.  Falsehoods of this sort could include both personal statements of the president or, as in the case of President Nixon, the submission to congress of agency testimony or reports the president knew to contain material untruths.

That said, precisely defining the types of presidential statements to the legislature that could plausibly be deemed impeachable is difficult.

Lies to congress by the president himself in a formal, official communication

The easiest case would arise if a president himself were to lie when speaking formally to congress or one of its committees in person or in writing in an effort to obtain a congressional decision on a matter where congressional action depended on the truth of the president’s statement.  This is the case Iredell and, two centuries later, the Nixon-era Judiciary Committee had in mind.

Another historical example of lies of this kind that might plausibly have been characterized as an impeachable offense would be the misstatements and omissions by President Johnson and Secretary of Defense Robert McNamara about encounters between U.S. and North Vietnamese naval vessels on August 2-4, 1964, that led to the passage of the Gulf of Tonkin Resolution and in turn to deepening U.S. involvement in the Vietnam War.

To make a long story short, in 1964, U.S. naval vessels were operating in the Gulf of Tonkin in support of South Vietnamese military operations against North Vietnamese military installations. On August 2, three North Vietnamese gunboats responded to one such South Vietnamese operation by attacking a supporting U.S. destroyer, the USS Maddox. The Maddox, in concert with U.S. aircraft, then sunk or damaged all three.  On the night of August 4, the Maddox thought it was attacked again, and responded by firing profusely at a variety of unidentified targets. There were strong indications even at the time that the August 4 “attack” was actually an overreaction to misinterpreted sonar data and that the US Navy was shooting at empty ocean.  In later years, this suspicion hardened to a virtual certainty.

Nonetheless, Secretary of Defense McNamara and President Johnson publicly characterized the events of August 2-4 as two unprovoked attacks on blameless U.S. naval vessels.  In addition to over-hyping the probably non-existent August 4 “attack,” they carefully concealed the fact that the U.S. ships came into the line of fire because they were supporting South Vietnamese assaults on the North.  President Johnson sought from Congress, and got, the famous “Tonkin Gulf resolution” which he used as legal justification for taking the U.S. ever deeper into what became the Vietnam War.

No less an authority than current National Security Advisor H.R. McMaster concluded that Johnson and McNamara “deceived the American people and Congress” about the Gulf of Tonkin incident.

This type of potentially impeachable presidential falsehood might occur in a formal written message from the president to Congress, such as the one LBJ sent on August 5, 1964.  Or it might occur in a personal address like the annual State of Union message.  There could be no doubt of the official character of either form of communication.  In the first, the president is expressly asking for congressional action.  In the second, the president’s obligation to provide a message to congress regarding the state of the union is written into Article II, Section 3 of the Constitution.

Of course, as the modern practice of “fact-checking” every presidential address has made plain, every president spins facts to his advantage at least somewhat on such occasions. It would be absurd to impeach a president for engaging in that well-understood political habit. Nonetheless, there must be some limit on presidential prevarication in official settings.  It is one thing for a president to place politically advantageous interpretations on ambiguous facts, or even to cherry-pick facts a bit to support a political argument.  It is quite another for a president to consciously misrepresent facts plainly germane to a congressional choice, or to consciously omit facts that, if revealed, might cause congress to act differently.

Lies to congress by administration agencies or officials with the president’s knowledge

A second type of potentially impeachable presidential lie to Congress occurred when the Nixon Administration submitted to Congress false reports about Cambodian bombing. There the president did not personally speak, but, at least so it was alleged, he caused or authorized his subordinates to deceive Congress on his behalf.  Again, every administration is going to try to bend the arc of truth a bit in the direction of its ideological or policy preferences, but even in this age of relativism there must be some boundary beyond which a president cannot go when authorizing official communications to a coordinate branch of the United States government.

This sort of executive branch misrepresentation could become relevant to the current administration.  For example, by law, the executive branch must, every four years, prepare and publish a “National Climate Assessment,” which is expressly designed to set out the best available science to guide congress, executive branch regulators, and state and local governments in making decisions about how to respond to the changing global climate.  Government scientists and career professionals were sufficiently concerned about whether the Trump Administration might either alter or suppress its findings that a draft was recently leaked to the press.  The availability of the draft may forestall any significant meddling with the report’s data or basic conclusions, but this is only one of many legally mandated reports and data compilations that might be subject to politically-motivated censorship.

The question – for which I confess I have no easy answer – is whether there is a type and degree of suppression or distortion of reports to Congress that would properly amount to an impeachable offense.  To constitute to an impeachable offense, such a report would certainly have to satisfy at least three requirements: (1) It would concern a matter of genuine national significance upon which Congress is required or reasonably expected to act; (2) it would contain a significant number and degree of provably false assertions of fact, and (3) the president could be proven to have known about the report and its contents and to have been aware of its essential falsity.

I will be watching the news over the coming months to see if a plausible example of this kind of presidential falsehood arises.  Suggestions from readers will be welcome.

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In my next post, I will consider whether a president can constitutionally be impeached for unindictable, but pathological or pervasive, lying.