In previous posts, I have considered two types of presidential lie as impeachable offenses: criminally indictable falsehoods and unindictable official falsehoods.  Here I address a third category — lies that are neither indictable nor, strictly speaking, official, but that are so frequent as to amount to a pattern of chronic or pervasive falsehood.

This third category is both the easiest and hardest for those who would like to see Mr. Trump impeached.  On the one hand, as I said in the first post in this series, “The simple fact is that Mr. Trump lies all the time.  Ceaselessly.  Unrepentantly.  About pretty much everything. Big things.  Little things.  Public matters and private ones.”  Both the New York Times and the Washington Post have published lengthy lists of Mr. Trump’s falsehoods. The New Yorker has an entire series devoted to debunking his more notable prevarications. Thus, proof of the factual basis would seem easy (though as discussed below, it may prove harder than it appears).

On the other hand, the proposition that a president can be impeached, not for one specific criminal or official lie, but for being a liar, is not only novel, but would obviously be subject to abuse unless well grounded in constitutional theory and carefully limited in scope.

Let’s begin by considering how executive lies might fit into the history and function of impeachment in the American constitutional scheme.

English impeachment

“Impeachment” in the American constitution is a lineal descendant of a weapon first employed by English parliaments in the long struggle over whether the monarchy would be absolutist or would govern in tandem with hereditary, ecclesiastical, and economic elites represented in the legislature.  A parliament that disapproved of the king’s policies could frustrate those policies to some degree by, for example, refusing to fund unpopular royal projects.  But, the monarchy being hereditary, if the king forged ahead despite parliamentary opposition, he could not be removed absent a genuine, and possibly quite bloody, revolution.

Hence, those opposed to the policies of the king’s government indulged the fiction that it was not the king who was at fault; rather, he was being misled by incompetent or malicious ministers who could be removed as a signal of parliamentary displeasure.

The two procedural vehicles most often used to remove offending ministers of the Crown were bills of attainder and impeachment (though bills of attainder could be, and often were urged by the Crown to punish the king’s enemies). Both bills of attainder and impeachment could carry very severe penalties, extending beyond removal from office to fines, forfeitures, prison, or even death. One customary distinction between the two was that a bill of attainder could be unapologetically retrospective — meaning that Parliament could pass a bill of attainder punishing someone for behavior that violated no previously enacted law — while impeachment came to be thought of as possible only if the defendant’s acts were contrary to law, or at least well-settled norms, when committed.

The drafters of the American constitution disapproved of bills of attainder, both because of their historical employment as instruments of royal oppression and because they offended a foundational principle of the rule of law — nulla poena sine lege — there should be no punishment for something not already prohibited by law.  This disapproval manifested itself in Article I, Sections 9 and 10, which prohibit both Congress and state governments from enacting ex post facto laws or bills of attainder.

But the founders, after much debate, concluded that some mechanism was needed to remove a misbehaving president, as well as judges and subordinate executive officers.  Hence, the impeachment clauses in Articles I and II.

The Founders and the relation of public virtue to presidential impeachment

The impeachment process installed in our constitution was plainly influenced by the founders understanding of English precedents, but in its details it is a uniquely American creation.  English influence is obvious in the choice to echo parliamentary practice by giving the “lower” or “more democratic” legislative chamber the power of initiating an impeachment and the power to try impeachments to the “upper” chamber.  On the other hand, the founders were keen to avoid the bloody example of some English impeachments by specifying that impeachment is strictly a political remedy limited to removal of the offender from office.  Article I, Section 3, specifies that:

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

Officers who are impeached and removed for conduct otherwise criminal can be charged and punished for such conduct, but only in a separate proceeding in regular courts.

The decision to restrict the consequence of impeachment to loss of office tells us something about the kinds of conduct the framers meant to be impeachable.  They adopted the famously enigmatic phrase “high crimes and misdemeanors” as the standard for executive impeachability.  I think it is fair to conclude that the framers were content with this imprecise and rather elastic definition of impeachable offenses precisely because they designed impeachment as a political tool that excised dangerous officials from office, but did not expose them to death, imprisonment, or financial ruin.

High Crimes & Misdemeanors:  Throughout the constitutional convention, various formulations were proffered to define the scope of impeachable conduct. The final modification occurred in a famous exchange between George Mason and James Madison.  Mason suggested “treason, bribery, or maladministration.” Madison objected that, “So vague a term will be equivalent to a tenure at the pleasure of the Senate.” Mason withdrew “maladministration” and substituted “treason, bribery, or other high crimes and misdemeanors.” The framers and ratifiers seem to have interpreted this formulation to mean that a president should not be impeached for honest mistakes of policy, or indeed for pursuing in good faith courses with which a majority of the legislature heartily disagreed. For example, Edmund Randolph observed at the Virginia ratifying convention that a man should not be impeached “for an opinion.”

That said, the framers plainly thought of impeachment as a vital shield against executive misconduct. James Madison in Federalist 39 lists the impeachability of the president as among the guarantees of republican government. Alexander Hamilton makes the same point in Federalist 77.  It is also plain that the framers conceived of impeachment as reaching beyond ordinary crimes to a range of misbehavior and abuses of power. In Federalist 65, Hamilton described impeachment as “a method of NATIONAL INQUEST into the conduct of public men,” and famously described impeachable offenses as being “of a nature which may with peculiar propriety be denominated POLITICAL.” In Federalist 66, Hamilton characterized impeachment “as an essential check in the hands of [congress] upon the encroachments of the executive.” Although Madison’s objection to “maladministration” as overly broad led to Mason’s alternative of “high crimes and misdemeanors,” Madison believed impeachment necessary because he  “thought it indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief magistrate.”

The use of the term “perfidy” is suggestive because concern with the fundamental honesty of the president resonates with the statements and values of other founders. Theirs was a generation that placed great stock in the virtue of public men.  Indeed, their choice of an electoral college as the means of electing presidents was based in large measure on their faith that a group of the “best” men drawn from the ruling elites of the several states would provide a wiser and more informed judgment of the character of a prospective president than the unmediated assessment of ordinary voters, who might be swayed by the arts of the demagogue.  They were not naive, of course, and as practical politicians would have had no foolish expectation that every word from an elected official’s mouth would be 100% true.  Still, I suspect they would view habitual public dishonesty on subjects relating to the exercise of presidential power as disqualifying in a candidate and impeachable in an incumbent.  As Edmund Randolph said of the president, if “he be honest, he will do what is right, if dishonest, the representatives of the people will have the power of impeaching him.”

In the end, the evil against which the impeachment remedy was aimed was presidential conduct that undermines the constitutional order. George Mason’s insistence that the range of impeachable offenses should extend beyond treason was grounded in the recognition that, “Attempts to subvert the Constitution may not be treason.”  If, therefore, a pathologically dishonest chief executive undermines constitutional order, then impeachment on that ground would be consistent with the views of the founding generation.

Chronic, but non-criminal, lying 

Given this historical background, should chronic or pervasive, but non-criminal, lying be an impeachable offense?  We begin by recapping the conclusions of the two previous posts on impeachable lies.

First, some, but apparently not all, indictable lies are impeachable offenses.  That at least some criminal lies would also be ground for impeachment is consistent with the English understanding that impeachment, as distinct from bills of attainder, should be based on conduct previously understood to be an offense. However, the Clinton case teaches us that, in the United States, even indictable lies may not be impeachable if they involve essentially private matters or are told in a highly politicized, and perhaps legally compelled, setting like the civil and criminal litigation that arose out of Paula Jones’ sexual harassment suit against President Clinton.

Second, it is fairly plain (though the precedent is sparser) that non-criminal lies told to congress or other government actors for the purpose of affecting government policies or decisions can be impeachable.  This assertion is at least superficially in tension with the English idea that impeachment should be based on conduct previously understood to be a grave offense. But the apparent tension arises from the mistaken notion that an offense for impeachment purposes is the same thing as a statutorily defined crime.  In England, officials were not uncommonly impeached for conduct that, while understood to be wrongful for one in office, would not be chargeable as a crime in ordinary criminal courts. See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 67-69 (Harvard Univ. Press 1973). In the United States, the conclusion that official, but non-criminal, lies to congress are impeachable finds support in both founding-era statements by luminaries such as James Iredell and the concrete example of the fifth of the proposed articles of impeachment of Richard Nixon (regarding lies about the bombing of  Cambodia).

The course of the Clinton impeachment and the evidence favoring the impeachability of lies to congress strongly imply that a lie – or pattern of lying – is most likely to be considered impeachable if the subject is public matters and if the falsehood is uttered in connection with the president’s official duties for the purpose of affecting decisions by government actors. This inference is also consistent with Hamilton’s characterization of impeachable offenses as political in character.

Hence, Clinton’s lies, badly as they reflected on his personal character, did not lead to conviction because they did not directly affect the course of any public issue.  By contrast, Justice Iredell was focused on the hypothetical case of a president who lied to the senate to secure ratification of a treaty, and the Nixon article of impeachment addressed the very real case of a president who lied to congress and the public about military actions in a neutral country in order to frustrate congressional oversight of the Vietnam War.  In both the latter cases, the lies, hypothetical and real, were limited to a particular topic and causally related to identifiable action or inaction on the part of the national legislature. In both cases, it is easy to see that, but for the lie, congress would, or at least might have, acted differently.  The lie becomes an impeachable offense because it was designed to distort the deliberative function of another coordinate branch of government.

Mr. Trump’s habitual prevarication presents an unprecedented problem.  The issue is not how to view one or a related series of falsehoods about one particular topic, but that Mr. Trump lies constantly about virtually all topics. Some of his untruths relate directly to particular public policy issues or proposals.  Examples include claims made in connection with the debate over the future of the Affordable Care Act that “millions of people” lost insurance coverage under the ACA and that all or portions of certain states had no insurance carrier for the ACA exchanges. Likewise, he has falsely claimed that 3 million illegal aliens voted in the last election and that the Obama Administration tapped his telephone lines in Trump Tower. And in the midst of growing tensions with North Korea, he claimed he was sending an “armada” toward Korea when in fact the carrier group in question was steaming in the opposite direction.  But many of his lies are about subjects  — the size of his inaugural crowd or whether the head of the Boy Scouts or the President of Mexico called him — that in themselves are inconsequential.  The question is whether numerous unrelated falsehoods, none of which would be impeachable standing alone, can be aggregated into an offense meriting removal from office.

Answering this question requires some reflection on the nature, purpose, and effect of presidential lies.  For an ordinary president, a particular lie may be intended to affect a decision by congress or a court or an agency or a foreign government or the electorate itself.  But, for an ordinary president, what makes the lie both effective and culpable is the background assumption that presidents customarily tell the truth on important matters, and particularly in official communications.  Only thus can the lie truly deceive. But what if the president lies constantly, demonstrably, and unashamedly, on such a broad array of topics that no sensible person — including his nominal political allies — accepts anything he says as true without independent corroboration?

In one sense, the lies of a known chronic liar may be less damaging in a particular case precisely because the liar is less likely to be believed.  But if the chronic liar is the president, his mendacity arguably undermines the operation of the government as a whole.

Chronic lying may be a political offense in the Hamiltonian sense insofar as it cripples the liar in the performance of his presidential duties. During the Clinton impeachment, it was often argued that the American president, who serves as both the operational head of government and the ceremonial and symbolic head of state, cannot function without a minimum of moral authority which is forfeit once he is proven to be a perjurer. As I wrote back then:

Presidential leadership depends in significant part on the exercise of moral authority, some inherent in the office of the presidency and some deriving from the character of its occupant. Presidential leadership also requires integrity, at least insofar as both a President’s friends and foes must have reasonable confidence that, at least most of the time, the President speaks the truth and keeps promises. Furthermore, presidential leadership demands at least some modicum of virtue, at least to the degree that the President must not violate the basic social norms embodied in the law’s proscriptions against very serious criminal offenses. Without some indefinable minimum of these characteristics of moral authority, integrity, and personal virtue, a President cannot govern.

Nonetheless, the apparent lesson of the Clinton affair is that lies about a single private matter, even if perjurious, are not enough for impeachment. The question presented by Mr. Trump is whether persistent mendacity on multiple subjects of public consequence so undermines a president’s authority that lying becomes sufficient for impeachment without an accompanying criminal violation.

I am persuaded that the answer is yes by considering that chronic presidential lies do not merely render the president himself ineffectual, but also damage every other branch and function of American government.

If the president’s subordinates in the executive branch cannot believe their boss, they will be hampered both in understanding what the president’s policies are and in executing them.  If the legislature cannot believe what the president says, it can neither legislate with confidence that it is acting based on accurate information nor be confident that its directives will be honestly executed once enacted. If the judiciary becomes convinced that the president cannot be trusted, it will be less disposed to accept government lawyers’ explanations of executive actions and more inclined to meddle in matters in which it has traditionally deferred to executive branch discretion.  If foreign governments come to believe that the American president is a liar, the confidence in the fundamental reliability of the United States that is the true foundation of a sound and effective foreign policy will begin to unravel.  If the American people conclude that the president is a congenital liar, their cynicism about government – already sadly advanced – will increase, making the successful operation of participatory democracy even more doubtful.

In sum, pervasive lying by a president tends to undermine the entire constitutional order. Accordingly, I have little hesitation in concluding that, in theory, pervasive presidential lies can properly constitute an impeachable offense.

And yet…

That said, the practical and political obstacles to impeaching a president for his mendacity alone are formidable.

First, one would have to decide which falsehoods and prevarications should count. For example, should we count only statements made after a president’s inauguration?  Or, since the point is to prove a pattern of lying, should statements made prior to assumption of office, for example during the presidential campaign, be considered?

Likewise, one would have to decide how to define the statements includable in the pattern of falsehood.  Should we include only statements that would qualify as perjury if made under oath — that is, statements of present or past fact that are wholly false and known by the speaker to be so when made?  Or could notable exaggerations be included?

What would be the required mental state? Would one have to show that the president was consciously aware of the absolute falsity of a statement when made?  Or would it be sufficient to show that the president made a statement without making any effort to determine its truth?  In short, could a president be impeached for a pattern of reckless disregard for the truth?

Since the essence of the offense would be a pattern of lies, how many lies of what type would be required to make a pattern?

How consequential would any particular statement have to be to be included in the pattern?  Could one include, for example, a lie about whether the president received a phone call from the head of the Boy Scouts about the reception of his speech to the Boy Scout Jamboree?  Or would a lie have to be about a subject directly related to an issue of public policy? If the latter, how consequential would the statement have to be?

Moreover, sometimes presidents must lie for the public good. To be entirely candid about, say, pending military operations might be unforgivable, not laudable.  How would one distinguish between the necessary and culpable lies?

Second, given that all presidents lie at least sometimes, there would have to be some comparative standard or every president would be impeachable for dishonesty.  How would one set such a comparative standard?

Third, the proof problems would be formidable and the process of collecting evidence would necessarily involve massive intrusions into the ordinary operations of the White House.  Proving that the president either knew that a particular statement was untrue or was reckless about its falsity would require discovery of all his own personal investigations into the matter and all the information and advice provided to him on the subject.  Recall the extraordinarily protracted process of investigating the single question of whether President Clinton lied about sex with Monica Lewinsky and multiply that by the dozens of alleged falsehoods that would be necessary to establish a pattern of presidential lying.

Finally, any impeachment is a fool’s errand unless the overwhelming majority of the public – including a solid majority of a president’s own political party – can be convinced that the allegedly impeachable offense occurred and is a legitimate basis for removing a president.  Mr. Trump occupies the White House today as both beneficiary and inciter of a culture of distrust of “establishment” institutions and disbelief in the very existence of objective truth.  To a distressing degree, many, perhaps most, people who are at all politically aware tend to receive their information from sources broadly congenial to their own settled views and tend to disbelieve information from sources they associate with “the other side.” There are few, if any, widely recognized neutral arbiters of public fact.

This manifests itself directly in the electorate’s views of Mr. Trump’s honesty.  In one recent poll, only 37% of all respondents said Mr. Trump is honest. But the partisan breakdown of this view is stark. Only 5% of Democrats found him honest. Among independents, 35% did so. But on September 27, 2017, after nine months of his presidency, 79% of Republicans said they viewed Mr. Trump as honest. Moreover, so cynical have we become about all elected officials past and present, that a significant fraction of the population do not believe that Mr. Trump is materially more or less honest than his predecessors.

Leaving to one side the sociological and psychological explanations for these astounding figures, they mean that any effort to impeach Mr. Trump for dishonesty alone would inevitably be viewed by many, perhaps most, Republican voters as an unsubstantiated, purely partisan endeavor.  And that, in turn, means that Republican legislators – however dishonest they personally know Mr. Trump to be – would cooperate with such an effort only at the certain peril of losing their offices.

In the end, therefore, although I am convinced that impeachment exclusively on the ground of pervasive dishonesty would be entirely constitutional, I am unconvinced that any such project is practical, politically feasible, or indeed desirable.  However, I am convinced (a) that Mr. Trump’s dishonesty may prove to be a significant feature of other impeachable offenses, and (b) that, if more concrete grounds for impeachment should ever be advanced by the House, an additional, carefully considered and crafted, count for pervasive dishonesty should at least be explored.