, , , , , ,

By Frank Bowman

As I noted last week, I’ve finally finished my book on impeachment, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump, due out from Cambridge University Press in the spring.  The book begins with an in-depth examination of the history of impeachment in the United Kingdom and the United States from 1376 to the American founding through all the American impeachment cases to date, and concludes with five chapters focused particularly on issues of potential relevance to Mr. Trump.

To get the whole argument, you’ll have to buy the book. 🙂  However, over the next few weeks, I’m going to summarize the case for and against impeaching Mr. Trump given what is currently known.

The Big Picture

The paramount lesson I learned from my long journey through British and American constitutional history is that impeachment is, and was always intended to be, a means of protecting the Constitution in the broad sense, by which I mean not only the particular governmental arrangements and personal rights specified in the written document, but equally importantly, the distinctively American institutions and norms that have grown, flourished, and solidified around the written core.  Because the Founders recognized the impossibility of defining in advance the precise nature of the threats to constitutional order an uncertain national future might produce, they wrote and ratified a flexible standard for impeachable conduct and delegated the choice of how to apply it to Congress — the most democratic, politically accountable branch of the national government. The requirement of a 2/3 majority for conviction in the Senate makes impeachment politically difficult.  But the language of the impeachment clauses, the British and American practice so influential in shaping that language, and the precedents created by American impeachments since 1788 impose no absolute limits on the conduct for which Congress may impeach and convict a President.

The result is that — as a constitutional matter — we can impeach a president whenever we should, which is to say whenever removal of the president seems essential to protecting constitutional order.   If that is true, one might ask why even bother studying the history of impeachment, either before or after the composition of the Constitution. The answer is that the constitution’s impeachment language and the history surrounding it are essential aids in helping us think about what should be done for the good of the republic in any new case.

The key to framing a strong impeachment case against Donald Trump is recognizing the unique character of the threat he presents to constitutional order.  Every American impeachment case to date has centered on a discrete set of acts, or at least a pattern of conduct with an identifiable set of objectives or exemplifying particular disqualifying traits.  To take only the presidential examples: Andrew Johnson violated the Tenure of Office Act, and did so as part of a general pattern of usurping congressional authority to define the course of post-Civil War reconstruction.  Bill Clinton lied about adulterous sex and obstructed justice to conceal the sex and the lies. Richard Nixon’s offenses seem more various, but the charges against him nonetheless centered on three closely interrelated themes – first, his campaign organization committed crimes to gain electoral advantage and he orchestrated a cover-up of those crimes; second, he engaged in a larger pattern of abuse of power, including misuse of government agencies, for the purpose of helping his friends, hurting his perceived enemies, and gaining political advantage; and third, he unjustifiably resisted congressional power to investigate impeachable conduct.

By contrast, the list of Trump’s offenses against constitutional propriety and reasonable expectations of presidential behavior is dishearteningly diverse and includes conduct in virtually all the categories of conduct historically identified as “high Crimes and Misdemeanors.”  His potential offenses begin with obstruction of justice both narrowly and broadly defined, abusing (or at least thoughtlessly misusing) the pardon power, ceaseless prevarication in every forum, and using his office to enrich himself and his family while violating the emoluments clauses in the process.  They run on to include varying forms of electoral misconduct; culpable maladministration  of various kinds, most notably deconstruction of America’s trade, diplomatic, and security architecture; persistent attacks on the legitimacy of other branches of government and of the free press; regular abuse of the norms of civil discourse, and more.  I have identified nine separate categories of conduct that might figure in an impeachment case against Mr. Trump.

I will examine each of those categories in subsequent posts, but the present point is that Trump’s true offense, the thing that would justify his impeachment and removal, is not any one of these, but the totality of his multifaceted assault on the norms of American constitutional government.  The unifying feature of all his offenses, large and small, is self-aggrandizement.  His object is to draw as much power, money, and adulation to himself, and secondarily to his family, as he can.  His invariable method is to attack any person, institution, law, rule, custom, or norm that might impede him from whatever he happens to want at the moment.  His objective is government according to the will of the one. What he seeks, whether as some deep-laid plain or more likely because it is simply his nature, is autocracy.  And there is solid, venerable precedent for impeachment on that ground.

The most important, constitutionally formative, impeachments in British history were those in which Parliament brought down ministers who “endeavored to subvert the ancient and well established form of government in this kingdom, and instead thereof to introduce an arbitrary and tyrannical way of government.”  This was the fundamental danger against which the Framers sought to guard when they incorporated the impeachment power into the American constitution.  Those opposing impeachment in particular cases are apt to emphasize language from the founding generation and others suggesting that the impeachment power should be reserved for “great occasions.”  The classic quotation in this vein is from Lord Chancellor Somer, who said in 1691 that “the power of impeachment ought to be, like Goliath’s sword, kept in the temple, and not used but on great occasions.”  5 New Parl. Hist. 678 (1691).  While that may be so, by the same principle, impeachment is a power that reaches the greatest of occasions and ought to be used if the republic is not to fail.   We happy Americans have never before been confronted by a presidential personality which posed a real risk of degeneration into autocracy.  We are loath to recognize the danger or to act on it.

A consistent theme of this blog has been that Donald Trump presents such a danger and that serious-minded people should at least consider whether impeachment is the proper remedy for it.

Subsequent posts will consider the bill of particulars against President Trump.