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Lying as an impeachable offense – PART I: Criminally indictable falsehoods

17 Thursday Aug 2017

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Several weeks ago (before Charlottesville and the nuclear saber-rattling with North Korea) Mr. Trump claimed that the leader of the Boy Scouts of America called him to congratulate him on his, shall we say, unusual speech to the Boy Scout Jamboree.  He also claimed that the President of Mexico called him and discussed the supposed success of Trump’s border policies in deterring migrants.  Neither call happened, as the White House reluctantly, if obliquely, had to admit.  Though inconsequential in themselves, these incidents are examples of a persistent pattern that raises a critical question – can a president constitutionally be impeached for lying?

Mr. Trump has a highly idiosyncratic relationship with the truth.  Or, if one is inclined to plainer speaking, he lies.  A lot.

Reasons of state sometimes impose on government officials an obligation to lie in the national interest. Had a member of the press asked FDR on June 5, 1944, if the invasion of France was going to occur the following morning, and in Normandy, he would have been duty-bound to deny it.  To lie. But none of Mr. Trump’s manifold untruths fall into this category.

Nor is Mr. Trump’s mendacity merely an unusually pronounced example of the ordinary, if less laudable, disposition of all public figures to put a positive spin on awkward negative facts, or stretch positive facts somewhat farther than strict probity might dictate.

Nor are Mr. Trump’s fictions properly grouped with the occasional whoppers that politicians, eager for that little extra touch of authenticity, or pathos, or drama, sometimes blurt out in the midst of a speech or interview.  This is not Ronald Reagan’s famously false claim that he was present at the liberation of Nazi death camps, or Hillary Clinton’s more recent, but equally false, claim that she landed in Bosnia under sniper fire.

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.  The New York Times keeps a running count of his public falsehoods.  And while one can quibble with some of the items on the Times‘ list, no fairminded person can dispute the fact that Mr. Trump spouts untruths weekly, if not daily.

One might, I suppose, argue that Mr. Trump is so uninformed, so impulsive, so desperate for affirmation, so disconnected from ordinary reality that he isn’t “lying” because he merely speaks what he wishes were true and doesn’t subjectively realize, or care, that his imagined reality is not the world the rest of us experience.  That may be so — although that sort of speculation lies more in the realm of psychology than law or practical politics — and even if so, it has no relevance to how we as citizens are entitled to judge what a president says.   If a president consistently says things that are objectively untrue and does so either knowing that they are false or just not caring one way or the other, we are, I think, entitled to say he lies.  Indeed, we are entitled to conclude that he is a liar – in every sense of the word that has any meaning.

Which is all very well, but can a president constitutionally be impeached for lying, or for being a liar?

To address that question, we need a quick introduction to the constitutional standard for an impeachable offense — “high crimes and misdemeanors.”

A fast primer on “high crimes and misdemeanors”

Article II, Section 4, of the Constitution states that, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

I will have numerous occasions in the coming weeks and months to dissect the phrase “high crimes and misdemeanors,” but let us begin with some basic points.

First, it is a mistake to think that there is some settled body of “law” out there that will tell us exactly what “high crimes and misdemeanors” means and that will, therefore, bind Congress if it decides to consider impeaching Mr. Trump.  Like so many other constitutional phrases, “high crimes and misdemeanors” is vague and open to differing interpretations.  But unlike most other constitutional language,  “high crimes and misdemeanors” is probably not subject to definitive interpretation by the Supreme Court. The question of whether some particular presidential misbehavior amounts to an impeachable “high crime” has so far in our history been left entirely to Congress, and it is almost certain that the Supreme Court would refuse to hear a president’s appeal from a congressional impeachment judgment.

Nonetheless, both scholars and Congress have assumed that the constitution’s language, its legislative history in the founding era, and the sparse precedents derivable from the fewer than two-dozen actual or near-impeachments of the last two centuries provide some guidance on what presidential behavior should and should not be deemed impeachable.  The usefulness of this handful of precedents is limited by the fact that most of them involved life-tenured federal judges as to whom many scholars believe different standards apply. Still, there is a high degree of consensus on at least some points:

  • The phrase “high crimes and misdemeanors” includes many offenses that are actual crimes indictable under federal or state statutes.
  • Some indictable crimes are almost surely not impeachable offenses. Virtually all modern misdemeanor offenses — like driving under the influence or petty theft — and a good many low-level felonies — say counterfeiting a postage stamp or punching a “foreign official” in the nose — are surely not impeachable offenses.
  • The consensus view is that a president can be impeached for conduct that is not an indictable criminal offense.

As I argued at the time of the Clinton impeachment, the offenses, indictable or otherwise, most likely to be considered impeachable are: Very serious offenses that, as Alexander Hamilton wrote in the Federalist No. 65, are “of a nature which may with peculiar propriety be denominated POLITICAL,” because they either (a) involve direct abuses of the president’s powers of office, or (b) though arguably private in character, are public in effect in that they deprive the president of the personal or political legitimacy necessary to the performance of his office.

Impeachable lies

It is easy to dismiss impeachment for lying as overheated fancy.  After all, everyone lies sometimes, and often for laudable reasons.  And, as noted above, persons in public life are particularly prone to occasional prevarication, whether out of public necessity or meaner calculations of personal or partisan advantage.  The overwhelming majority of falsehoods, whether pronounced by private citizens in private settings or public officials in public affairs, are neither criminally prosecutable, nor civilly actionable, nor grounds for removal from office high or low.

That said, it is also true that some lies do have legal consequences.  Indeed, it is indisputably true that certain kinds of presidential lies are impeachable offenses.  And there are additional types of presidential lie that have not, so far in our history, been the basis of an impeachment, but could plausibly become so.

So let us consider three broad categories of possibly impeachable lie – (1) criminally indictable falsehoods; (2) unindictable official falsehoods; and (3) unindictable, but pervasive or pathological, falsehoods.

I will address the first category in this post and turn to the second and third categories, and their relation to Mr. Trump’s peculiar case, in my next two posts.

Indictable falsehoods

Federal law makes a great many kinds of lies indictable felonies.  The most well-known category is perjury – knowingly telling a falsehood under oath — before a court, grand jury, or other official tribunal.  But it is also a felony to lie to virtually any federal agency so long as the subject matter of the lie is within the “jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”  So, for example, if Mr. Trump were to submit to an interview by the FBI in the Russian election interference investigation and tell a lie about a matter material to the investigation, that lie would be a felony, regardless of whether the statement was under oath.

Similarly, all sorts of unsworn lies told (or written) in commercial settings can be felonies.  All federal fraud statutes have as one element a false or fraudulent pretense, representation, or promise.

Many of these felonious lies would surely be grounds for impeachment. Two federal judges, Alcee Hastings and Walter Nixon, have been impeached for perjury.  In the case of a president, it seems plain that lying in the course of the Russia investigation, either under oath to a grand jury or in an unsworn statement to the FBI, would qualify as an impeachable offense. Such an indictable falsehood in a criminal investigation into foreign meddling in U.S. elections would be criminal, consequential, integral to the integrity of the presidential office, and thus squarely in the zone the founders would have considered impeachable.

But not all indictable lies are necessarily impeachable offenses.  The most notorious (though complicated) counter-example is President William J. Clinton.  On the one hand, the House of Representatives approved an article of impeachment charging that Mr. Clinton committed perjury in front of a grand jury by lying about his sexual relationship with Monica Lewinsky (and about previous allegedly perjurious testimony on the same subject in a civil lawsuit brought by Paula Jones).  On the other hand, the Senate found him not guilty of that charge by a vote of 45-55.

This result is confusing because, while the House vote signaled that grand jury perjury is an offense for which impeachment is possible, the Senate acquittal might be interpreted to mean: (1) that grand jury perjury is never an impeachable offense; (2) that grand jury perjury, if proven, is impeachable, but that the House failed to prove that Clinton committed perjury in the legal sense; or (3) that at least some Senators believed that some perjuries are impeachable and that Clinton committed perjury, but that this particular instance of perjury – lying about a private sexual affair in legal proceedings instituted as an elaborate political trap – should not be grounds for conviction and removal from the presidency.

There is a sea of analysis of the Clinton verdict, but the consensus is that: (a) perjury certainly can be an impeachable offense; (b) Clinton surely lied under oath and pretty certainly committed the crime of perjury; but (c) a majority of senators probably concluded that the peculiar circumstances of his case made this perjury unworthy of the drastic, politically destabilizing, remedy of removal of a president from office.

The Clinton case highlights several critical points that would be at issue in any effort to impeach Mr. Trump for lies that did not violate a criminal statute:

On the one hand, the Clinton precedent illustrates that not even lies told in the most solemn, legally consequential setting are necessarily impeachable.  What undoubtedly saved Mr. Clinton was that, even though his lies were told under oath in an official setting, their subject was an intimately private matter – adulterous sexual relations.  To elevate lies on such a subject to impeachable offenses required that Mr. Clinton’s accusers argue either that the adulterous sex itself rendered Mr. Clinton morally unfit for office, or that any lie under oath by a president is subversive of the rule of law generally and, more particularly, violates the president’s constitutional obligation to ensure that the laws will be faithfully executed.

Mr. Clinton’s accusers didn’t press the moral disqualification argument, at least explicitly, both because the overwhelming majority of the public no longer viewed the more pedestrian varieties of sexual infidelity as a disqualification from public office, and because a quite remarkable number of Mr. Clinton’s principle accusers were themselves confessed adulterers. Consequently, the Republican House members who argued the case in the Senate (the “managers”) contended that a president who lies under oath on any subject subverts the rule of law and fatally undermines both that critical norm of democratic governance and his own capacity to preside over the government.

Mr. Clinton’s acquittal ultimately rested, I think, on two points that would be central to a case for impeaching Mr. Trump for epidemic lying.

First, Clinton’s lies were about a private matter.  One can argue that the Lewinsky affair had a public aspect insofar as the sex was between two government employees (a president and an intern) and occurred on government property (the White House).  But that was always a stretch.

Second, Clinton’s lies occurred in the context of the Paula Jones civil lawsuit which (however meritorious on its facts) was quite unapologetically financed by Clinton’s political enemies in order to embarrass him, and later in a grand jury empaneled by independent counsel Kenneth Starr, whose pursuit of Clinton began with inquiries into Arkansas land deals and devolved into what many perceived as a sex-obsessed inquisition.  Clinton’s lies in these settings could be characterized as purely defensive — the squalid and inglorious, but perhaps understandable, response of a man cornered by opponents determined to ruin him politically by exposing his personal failings. Accordingly, the lies felt less like subversion of the rule of law and more like a tit-for-tat response to a misuse of the law for partisan political ends.

By contrast, Mr. Trump’s lies are not limited to private matters, or indeed to any particular subject. He prevaricates about matters as trivial as the size of the inaugural crowd on the Washington Mall to matters of great consequence such as the claim that the Obama administration “tapped” Trump Tower.  The key is, first,  that his lies are almost all about public matters, and second, that they are not the defensive falsehoods of a man maneuvered by his enemies into a perjury trap.  Rather, his lies are gleefully volunteered (often, one suspects, despite the best efforts of his family and handlers to shut him up) with the express intention of promoting his public political objectives.

Nonetheless, at least so far, we have no publicly available evidence that Mr. Trump has told an indictable lie since assuming office.  (The question of whether his various falsehoods in prior private life could amount to impeachable offenses is one for another day.) Therefore, we are left to inquire whether there is any precedent or plausible constitutional argument for basing a presidential impeachment on chronic, but unindictable, lying.

 

***

In my next post, I will address the possibility of impeaching a president for lies that are not criminally chargeable, but are part of formal presidential communications with congress.

 

A different, more protective, view of Robert Mueller from the Senate

04 Friday Aug 2017

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Several days ago, I noted with dismay that a large majority of the Republican members of the House Judiciary Committee sent a letter to Attorney General Sessions calling for a second special counsel, in addition to Robert Mueller, to investigate alleged malfeasance by Hillary Clinton, Loretta Lynch, James Comey, and a grab-bag of other people and events associated in one way or another with the Democratic side of the recent presidential campaign.  I lamented this letter as both a transparent attempt to deflect attention from Mr. Mueller’s Russia investigation and a distressing instance of Republican participation in Mr. Trump’s assault on democratic norms.

A number of Republican senators have taken a quite different approach – proposing legislation that would make it difficult for Mr. Trump to remove Mr. Mueller.  Republican Senator Lindsey Graham and Democratic Senator Corey Booker are co-sponsoring a bill that would both prevent dismissal of a special counsel absent good cause and make such a dismissal reviewable by a panel of judges.  A similar bill co-sponsored by Senators Thom Tillis, R-N.C., and Chris Coons, D-Del., would allow a special counsel to challenge his removal in court.

I have two reactions to these efforts:

First, I am heartened that Republicans in the Senate are taking a far more responsible position than their House colleagues toward Congress’s constitutional obligation to monitor and check executive wrongdoing.    Whether Mr. Mueller ever finds evidence of serious malfeasance or not, these Republican Senators give one hope that bare partisanship has not utterly neutered at least one half of the national legislature.

Second, having said this, there are real doubts about the approach adopted in these bills. In important respects, both bills would be a reversion to the now-defunct post-Watergate independent counsel law.  It is widely agreed that the degree of autonomy conferred on “independent counsel,” the monocular focus of such investigations on a single target, the immense resources made available to ICs, and the breadth of the federal criminal law too often meant that ICs ventured far afield from their original mandate, digging and digging until they found some crime, however inconsequential.  That law was allowed to lapse after the Clinton fiasco for a reason.

I wholeheartedly support the notion that Congress should signal to Mr. Trump – and strongly – that it will not tolerate either a premature dismissal of Mr. Mueller or efforts to obstruct his investigation.  But it is not at all clear that the signal should be sent in the form of a statute – a law – that will persist beyond the current crisis and is quite likely to come back to bite us later.

I am therefore in some sympathy with former White House Bob Bauer, who argues that the appropriate congressional response to a firing of Mueller should be the initiation of impeachment inquiries employing its own undoubted investigative authority.  That said, while Mr. Bauer’s criticism of both the old Independent Counsel law and the proposed legislation seems spot on, one cannot but wonder how likely formal impeachment proceedings or even serious preliminaries to a congressional impeachment investigation are given the current composition of Congress.  Here, it is particularly important to note that any impeachment inquiry must begin in the House, and customarily in the very Judiciary Committee whose hyperpartisan disposition has been on recent display.  Mr. Bauer, to his credit, tacitly concedes the improbability of a prompt move to impeachment, but notes that the Senate at least has sent other kinds of disapproving signals to the White House, included pointed indications that it might not consider a replacement to Jeff Sessions if he were fired as a means of getting to Mueller.

I am less impressed with Professor Rick Pildes’s suggestion that Congress could attempt to forestall Mueller’s firing by codifying existing DOJ regulations regarding special counsel.  As I pointed out in Slate some weeks ago, those regulations would not prevent Mr. Trump from firing Mr. Mueller if he is determined to do it.  They create some procedural hurdles, but a president already determined to endure the political damage such a firing would entail could surmount those with ease.  If he is determined to fire Mueller, he’ll just dismiss Attorney General Sessions and then work his way through the DOJ hierarchy until he finds someone willing to issue the order.  The regulations will have been satisfied and Mueller will be gone. Turning the current regulations into statutes would do nothing to change that calculus.

Professor Pildes’ proposal might serve one salutary function.  Perhaps bicameral endorsement of DOJ standards making firing a special counsel difficult would signal to Mr. Trump that Congress as a whole would seriously contemplate impeachment if he fired Mueller.  But, again, the House of Representatives would have to vote in favor of this legislation.  And at present, that is hard to envision.

Still, one should take some solace in signs of the Senate’s slow awakening to its constitutional responsibilities.

A reality check for impeachment enthusiasts: House Judiciary Committee Republicans

03 Thursday Aug 2017

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Last week, Bob Goodlatte (R-Va.), Chairman of the House Judiciary Committee, and nineteen of the other twenty-three Republican members of the House Judiciary Committee, sent a letter to Attorney General Jeff Sessions requesting that he appoint a second special counsel (in addition to Robert Mueller).  The list of things the Republicans want investigated is long, running to fourteen items, including Hillary Clinton’s e-mails and the investigation thereof, former Attorney General Loretta Lynch, former FBI Director James Comey, Mr. Trump’s post-election claims “that he was wiretapped by the previous administration,” and – this one is particularly rich – “inappropriate collusion between the DNC and the Clinton campaign to undermine Senator Bernie Sanders’ presidential campaign.”

This is, of course, not a serious document written by or for serious people.  It is instead a grab-bag compilation of pre- and post-election conspiracy theories and Trump Administration talking points aimed at deflecting attention from the Mueller investigation.  The letter is unaccompanied by any evidence that the events listed actually happened, or any legal argument that, if they did, the alleged misconduct amounted to criminal offenses.

For example, the first two items on the list — that former AG Lynch encouraged then-FBI Director Comey to “mislead the American people” by insisting that he refer to the Clinton investigation as a “matter,” and the “shadow cast over our system of justice concerning Secretary Clinton and her involvement in mishandling classified information” — are ludicrous as action items in a letter seeking a criminal investigation.  If Ms. Lynch did make this request to Mr. Comey, it would indicate that she was trying to minimize the political damage of the FBI probe to Secretary Clinton, but that is not a crime.  And federal prosecutors, whether regular or special, do not investigate non-crimes.  Nor does the Department of Justice investigate “shadows” over justice systems.

The letter is doubly frivolous in that few, if any, of the matters listed — even if they happened and were colorably criminal — would require a “special counsel.”

If Mr. Trump suspects he was “wiretapped” by the FBI, the NSA, the CIA, or any other federal agency, all he has to do is order the appointed heads of those agencies to inquire of their own subordinates.  If former Department of Justice officials are alleged to have behaved improperly, that would be a matter for the Department’s own Inspector General.  The need for a “special counsel” would arise only if politically appointed senior DOJ officials would have conflicts of interest in overseeing an investigation that could not be dealt with by individual recusal.  The only items on the list that might arguably fall into this category are the two or three proposing investigation into the foreign connections of the Clinton Foundation.  Such an investigation, though not presenting a conflict of interest under DOJ regulations, might call for a special counsel if the Attorney General concluded that investigating his boss’s former political adversary would present an appearance of impropriety.

But that, of course, is the most troublesome part of the Goodlatte letter.  Because — absent the most compelling evidence of criminality — such an investigation would be improper.  In the United States, successful candidates for political office do not use their newly-acquired powers to prosecute their defeated opponents.  That is a key marker of incipient authoritarianism.  The fact that twenty Republican lawmakers – virtually all of whom are lawyers – do not understand this most elemental of democratic political norms is profoundly disheartening.

It should also be a reality check for those hopeful that, given compelling evidence of impeachable conduct, Congress will act to remove Mr. Trump.  The sad fact is that, at least on the House side, Congress is not performing the role assigned it by the Framers of providing an institutional check on presidential misbehavior.  Indeed, particularly on the House side,  congressmen are actively enabling Mr. Trump’s misbehavior and thus actively abetting the steady degradation of the constitutional norms that have made the country work.  The Goodlatte letter represents a new low in this calamitous political degeneracy.

No president can be impeached unless a majority of the House of Representatives endorses that result.  Sadly, I think it fair to conclude that no kind or degree of deviancy or outrageousness will move a Republican House to impeach him, at least so long as Mr. Trump retains the loyalty of his Republican base.  And Mr. Trump continues to be supported by more than 80% of Republican voters.

However low he goes, we must stay high: Pondering right — and wrong — ways to impeach a president

29 Saturday Jul 2017

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Over the past several weeks, I’ve been writing and talking a lot on this blog and in the popular media about technical legal stuff — emoluments, the application of obstruction of justice statutes in the special case of presidents, whether a president can pardon himself, whether Donald Trump, Jr. violated federal election laws by meeting with the Russians, the procedural hurdles that stand between Special Counsel Robert Mueller and indictment or impeachment, and the relatively limited power of state attorneys general to investigate a president.

In looking back, I find that a recurring theme has been that Trump’s opponents sometimes seem willing to stretch the the letter of the law or traditional expectations about proper governmental behavior in order get at Mr. Trump.  My task has often been to say, “No, the law can’t be read as elastically as you would like,” or “No, the aggressive action you want to see is not consistent with the role of prosecutors in America.”

To which those who see in Mr. Trump a mortal danger to democracy might reply, “Well, yes, possibly.  But Trump is an extraordinary threat requiring extraordinary measures. Musty old maxims about strictly construing penal statutes in favor of the defendant and antique conceptions of prosecutorial restraint shouldn’t bind us in the face of an existential threat.”

Indeed, at least a few of the comments posted on Slate and the Wall Street Journal essentially say, “This Bowman guy should just shut up if all he’s going to talk about is what can’t be done.”

I am sympathetic to the sentiment behind these reactions.  I yield to no one in my disapproval of Mr. Trump.  Better wordsmiths than I have worn out their thesauruses in search of language that would adequately describe his seemingly limitless personal defects and his utter unsuitability for the office he holds.

And yet…

Those who oppose Mr. Trump need to think very carefully about why they oppose him and about the remedies that are appropriate to the ground of their opposition.

First, it is undeniable that he can, and will, do a great deal of damage so long as he remains in office.  But much of what his most ardent opponents view as damage will come in the form of policies — legally enacted by statute or regulation — that may be anathema to liberals and even most moderates, but which are neither more nor less than the long-stated platform of the modern Republican Party.  However much one may disagree with the particulars of the Republican agenda, its enactment by constitutionally elected officials is not a constitutional crisis.

  • Rejecting climate science is stupid and pulling out of the Paris climate accords is foolish, but neither choice offends the constitution.
  • Tax cuts for the rich as the perennial solution for every ill may be lousy economics, but as Justice Holmes once observed, the constitution does not guarantee the ascendance of any particular social or economic theory.
  • Building a “great border wall” is a comically ineffectual symbolic substitute for a real immigration policy, but, as much as the left may want to deny it, there are serious arguments for more restrictive and more selective immigration laws.
  • Jeff Sessions (however long he may last) is dragging federal law enforcement back into the morass of excessive punitiveness that even most conservatives have begun to abandon, but in doing so he is only enforcing laws Congress has not seen fit to alter.
  • Repealing or crippling the Affordable Care Act is both profoundly inhumane and (I venture to predict) terrible politics, but the country survived for over two centuries without the ACA, and the country will muddle along somehow if, despite this morning’s dramatic vote against “skinny repeal,” the Republicans nonetheless manage to mangle it.

I could go on, but the point is that the bad policy Mr. Trump and a Republican congress may enact is only that – bad policy.  For over two centuries the constitution has provided the institutional framework for enacting countless bad policies … and the framework for fixing many of them. The proper response to bad policy is democratic politics — not impeachment of the elected president who espouses it.  And, as has often been noted, removal of Mr. Trump merely puts Vice President Pence in the Oval Office, and Mr. Pence is, if anything, a more ardent and perhaps more competent exponent of extreme conservative policy positions.

Second, the very real danger Mr. Trump poses to the Republic stems primarily from his own peculiar persona, but even there his opponents should be cautious.  For example, many properly despise Mr. Trump for his boastful misogyny — at least outside the tiny circle of his own family he obviously views women as either sex toys or servants. But Democrats are poorly situated to find that attitude — or even conduct consistent with it — disqualifying in a president. On this score at least there is not much to choose between Bill Clinton and Donald Trump, or for that matter between Trump and other heroes of the liberal past like John Kennedy.  Indeed, on this score Mr. Trump comes off rather better than they in that, despite his crudity, he has not, so far as we know, turned the White House into his personal libidinous hunting ground.  And Democrats spent the late 1990s arguing that actual adulterous sex in the White House and perjury about the adultery is not disqualifying in a president.

Many of Mr. Trump’s other manifest personal defects are not without presidential precedent. Those old enough will recall Lyndon Johnson’s petty cruelties like the repeated humiliation of Vice President Hubert Humphrey.  Woodrow Wilson was a candid racist, and even an otherwise pretty decent guy like the first President Bush was not above fanning racial insecurities to win an election. Trump’s happy ignorance of science and economics will be sadly familiar to anyone who lived through the Reagan years, and his blithe disregard of facts as a guide to policy making finds a recent echo in the second President Bush’s decision to invade Iraq.

One might fairly respond that Trump is different because, although each of his predecessors had unsavory traits, he embodies in a single man virtually all the undesirable characteristics of many presidential generations, with virtually none of their virtues.  And he carries some common presidential weaknesses, like lying, to previously unimaginable extremes.  I would be hard pressed to disagree.  Yet the sad truth is none of Mr. Trump’s traits was a secret before the election.  America knew who he was, and elected him anyway.  Being a miserable human being is not an impeachable offense.

A president should only be impeached if his continuation in office represents a genuine threat to the security of the country or the constitutional order.  That said, any reasonable observer must have concerns about Mr. Trump on both grounds.

He is proudly ignorant and — regardless of whether he fits into diagnostic criteria for mental illness — impetuous, vindictive, and unstable.  Having such a person at the helm of a world hyperpower is deeply dangerous to the security of the United States and the peace of the world.  But it is unclear how a duly elected president can be removed for being psychologically unfit for the job.  The 25th Amendment might technically apply, but triggering it would require the assent of the majority of the cabinet Trump himself appointed.  Perhaps personal instability is impeachable, but at least if we take constitutional language and limited precedent seriously, impeachment for a “high crime or misdemeanor” would seem to require some consequential presidential act manifesting the fundamental instability.  I will return to this point in later posts.

But the main thrust of today’s epistle is that the most likely and constitutionally supportable grounds for impeachment of Mr. Trump will arise from behavior that violates the law or disregards the unwritten standards of conduct  — which lawyers and philosophers and social science types give the fancy name “norms” –without which the rule of law cannot function.

It is because I believe Mr. Trump threatens the rule of law that I started to write this blog.  My fear does not – so far -center on concern that Mr. Trump will act in direct defiance of plain legal rules.  It arises from daily observation of his incessant and accelerating attacks on the unwritten norms that keep the legal and political process honest and make the rules work.

  • No law requires disclosure of presidential tax returns or divestment of presidential assets, but the obvious virtue of preventing conflicts of interest in the nation’s highest official has, until Trump, made disclosure and divestment (or management in blind trusts) the universal norm.
  • No law, with the debatable exception of the emoluments clauses, requires that a president refrain from blatant profiteering off of his official position, but the obvious taint of corruption that attaches to such behavior has meant that, until Trump, the emoluments clauses have never in over two centuries been a live issue.
  • No law requires a president to be scrupulously honest all the time, but the obvious benefit of enjoying credibility with the public, the courts, political friends and adversaries, has, until Trump, meant that presidents try hard to tell the truth most of the time and don’t lie to everyone, every day, about so many subjects that the chief executive’s word becomes effectively worthless.
  • No law bars a newly-elected president from urging the criminal prosecution of his defeated opponent, but the obvious danger of transforming a democratic state into a tyrannical banana republic has, until Trump, put such vindictiveness beyond serious contemplation.
  • No law requires that presidents scrupulously avoid direct intervention in federal criminal investigations, but the obvious virtue of avoiding even the appearance that a president is shielding himself or his friends, or using the criminal law to persecute political enemies, has made Justice Department independence a norm presidents challenge at their peril.

It is Mr. Trump’s violation of these and an ever-growing host of other norms that makes him dangerous.  A violator of law can be punished by the courts and the sanctity of law thus upheld. Norms are different.  However sacred we may thoughtlessly have assumed them to be, violating them incurs no necessary sanction, certainly none that can be enforced by courts and bailiffs.  Nonetheless, if norms are disregarded with impunity, then they lose all effect.  How then ought we to respond to Mr. Trumps unremitting assault on the norms of civil society?

Norms are enforced informally, through communal disapproval, which in politics most commonly translates into electoral defeat.  In extreme cases, sufficiently egregious violations of core democratic norms may properly trigger the constitution’s impeachment remedy and allow an injured nation to remove an offender before his term expires.  I plan to talk a lot in coming weeks and months about how Mr. Trump’s violations of democratic norms may qualify as impeachable offenses.

But those who would impeach a president for his disregard of democratic norms must come to the task with clean hands. It will not do to say that, because Trump flaunts some norms, other norms can justifiably be bent or broken to bring him low. If that becomes the stance of Trump’s pursuers, then they become little better than the object of their indignation, and what should be a righteous pursuit will seem no more than partisan vindictiveness. Which will degrade the very standards of conduct we should all be seeking to uphold, and lead, inevitably, to yet another round of bitter political warfare conducted with even fewer restraints and less decency.

If that happens, those who oppose Mr. Trump will have failed utterly, even if they succeed in expelling him from office.

If Mr. Trump is to be removed, it must be for reasons and employing procedures to which there can be no fair-minded objection. To paraphrase a rather more admirable public figure from what already seems an antique golden era, “However low he may go, we must stay high.”

 

 

If Mueller Goes Down, State Attorneys General Won’t Save Us

25 Tuesday Jul 2017

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Several recent articles have suggested that, should Special Counsel Robert Mueller be fired and his investigation discontinued, state attorneys general could, in effect, step into his shoes.  While state officials can play some role in what might broadly be termed the anti-Trump resistance, I do not believe they can function effectively as stand-in special prosecutors.

I lay out my reasons for this view in an article published today in Slate.  You can read the article at this link.

I’ll be writing a bit more on this subject, and reader reactions to the Slate piece, in coming days.

Wall Street Journal Considers Presidential Self-Pardons … with a little help from “Impeachable Offenses”

25 Tuesday Jul 2017

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The following article examining the president’s power of self-pardon and other tactics Mr. Trump might employ to stymie the Mueller investigation appeared yesterday in the Wall Street Journal.  We are pleased to note that it quotes Professor Bowman at length and gives a shout-out to this blog.  The WSJ article can also be found at this link.

Presidential Self-Pardon Remains a Murky Issue: 
Constitutional scholars say matter is unresolved
Special counsel Robert Mueller departing after briefing members of the Senate last month on his investigation into potential collusion between Russia and the Trump campaign.
Special counsel Robert Mueller departing after briefing members of the Senate last month on his investigation into potential collusion between Russia and the Trump campaign. PHOTO: JOSHUA ROBERTS/REUTERS

By

Jess Bravin

July 24, 2017 5:23 p.m. ET

WASHINGTON—In 1974, some of President Richard Nixon’s lawyers advised the president that he could pardon himself. In 1992, the Iran-Contra special prosecutor reached the opposite conclusion regarding President George H.W. Bush.

Neither president took that step, and constitutional scholars say the question of the presidential self-pardon remains unresolved.

But the U.S. Constitution, unlike many state governments, centralizes prosecutorial authority under the president. That means he could forbid the Justice Department from investigating or pursuing criminal charges against anyone, including himself, so he may never reach the point of having to pardon himself.

The subject has come to the fore in recent days after reports emerged that President Donald Trump had asked his advisers about his ability to pardon various people, including himself.

Trump officials say the issue won’t come up because there was no wrongdoing.

“I’m not sure if he has the right to [pardon] himself or not,” White House communications director Anthony Scaramucci said Sunday on CNN. “But it doesn’t matter, anyway, because that is another one of those stupid hypotheticals. He’s not going to have to pardon himself, because he’s done absolutely nothing wrong.”

The president himself tweeted Saturday, “While all agree the U. S. President has the complete power to pardon, why think of that when only crime so far is LEAKS against us.FAKE NEWS.”

The Justice Department has taken the position that a president can’t be prosecuted. Past special prosecutors have disagreed.

“It is very likely that a president is subject to federal indictment. No one is above the law in this country,” says Ronald Rotunda, a law professor at Chapman University in Orange, Calif., who worked both for the Senate Watergate Committee and later Kenneth Starr, the independent counsel whose investigation of President Bill Clinton led to impeachment and acquittal.

Last week, the New York Times reported on a memo obtained under the Freedom of Information Act in which Mr. Rotunda advised Mr. Starr that the president was subject to indictment.

“I have thought about these issues for years, beginning with my work on the Watergate Committee,” Mr. Rotunda said. “Starr’s request for a legal opinion forced me to think about it more carefully and see what is most likely the law.”

But past special prosecutors such as Mr. Starr operated under broad statutory authority that since has expired. Under current law, special counsel Robert Mueller, who is investigating alleged Russian interference in the U.S. presidential election, only has the authority to recommend to higher-ups that indictments be sought, says Frank Bowman, a law professor at the University of Missouri who publishes the ImpeachableOffenses.net blog.

Even if Justice Department attorneys obtained an indictment before the president issued an order canceling the investigation—or defied such an order—Mr. Trump could replace hostile officials with those willing to follow his orders. And if a “runaway” federal grand jury voted for an indictment on its own, a prosecution couldn’t proceed without a signature from a Justice Department lawyer, Mr. Bowman says.

“The judge has no independent power to create a prosecutorial authority,” he says.

A president attempting to derail an investigation could wreak havoc with traditional concepts of law and order, legal experts say. Because he has the power to pardon anyone for a federal crime, with the possible exception of himself, a president could in theory pardon individuals for obstructing an investigation if the offense took place under federal jurisdiction—as is all of Washington, D.C.

But there’s a far easier course if Mr. Trump acts on his assertion that the investigation against him is an illegitimate “witch hunt”: He could fire Mr. Mueller.

“If Trump takes Mueller off the board, he can pretty much stop the whole thing,” Mr. Bowman says. At that point, the inquiry’s only avenue “probably rests on the midterm elections of 2018”—and whether the Democrats can seize a chamber of Congress, and with it the ability to pursue their own investigations.

Trump hints strongly at exercise of pardon power

22 Saturday Jul 2017

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In a series of tweets, Mr. Trump asserted that he has “complete pardon power,” although he did not say he intended to exercise that power immediately.  These remarks, combined with earlier reports that he has been consulting legal counsel about the extent of his power to pardon, certainly raise the prospect that he may seek to block the progress of the Mueller investigation by prospectively pardoning those who are its subjects, possibly including himself.

Should he do so, several issues alluded to previously here and in my recent Slate article will jump to the forefront: (1) whether a president can issue prospective pardons, i.e., can he pardon people for crimes with which they have not yet been charged; (2) whether a president can pardon himself; and (3) whether the use of the pardon power to block an investigation into wrongdoing by the president or his close associates would itself constitute either the crime of obstruction of justice or an impeachable offense.

The answer to the first question is probably yes.  At a minimum, we have the historical example of President Gerald Ford who pardoned his predecessor, the recently-resigned Richard Nixon, for criminal offenses he might have committed in connection with the Watergate scandal.

Whether a president can pardon himself is hotly contested, but if he can, the constitution expressly provides that such a pardon cannot extend to impeachment.

Whether an exercise of the pardon power to block an investigation could itself constitute a crime is a fascinating, but unresolved, question.  My own instinct is that it could be.  Merely because a government officer has the legal power to perform an act does not mean that the act is not criminal.  For example, a member of Congress has the undoubted power to vote for or against legislation, but if the member votes a particular way because she received a bribe to do so, that would be a crime.  Presidents are no different.

Finally, I find it almost inarguable that a corrupt exercise of the pardon power would constitute grounds for impeachment.  On this blog, we have not yet discussed what kinds of conduct can constitute an impeachable offense.  However, the undisputed core of impeachable behavior is misuse of presidential power.  The fact that the power in question is that of issuing pardons does not change this fundamental conclusion.

All these questions will be discussed on this site in greater detail presently.  In the meantime, I strongly recommend a fine new law review article by Professors Daniel Hemel and Eric Posner on presidential obstruction that covers in detail or touches on all of them. It can be downloaded at this link.

Does Mueller Matter? A Citizen’s Guide to the Obstacles Confronting the Special Counsel

19 Wednesday Jul 2017

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Robert Mueller, appointed by the Department of Justice as special counsel to investigate the Trump campaign – Russia connection, is looking into whether any crimes have been committed by Mr. Trump, his family, or subordinates.  Many people may be hazy on what would happen if and when Mr. Mueller identifies one or more prosecutable offenses. I have put together an “informed citizen’s guide to the obstacles that stand between Mueller deciding that a crime was committed and either impeachment of President Trump or prosecution of any Trump-linked suspects.”  It was published in Slate yesterday at the link below.

Not So Fast Special Counsel: All the ways Robert Mueller’s investigation of Donald Trump might be tripped up before it reaches the finish line.

Readers might find it informative.

The Republican Health Care Bill & Impeachment

18 Tuesday Jul 2017

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The Republicans’ long crusade to “repeal and replace” the Affordable Care Act may have died yesterday with the announcement that Senators Moran and Lee would vote against even bringing the current Senate bill to a vote.  The health care debate will continue because everyone agrees that the ACA has problems that need fixing, and some reparative legislation may ultimately emerge.  But the vision of President Trump, uncouth but mystically powerful, leading a Republican congress to an endless string of political victories like a modern Genghis Khan sweeping across the steppes at the head of his resistless Mongol hordes?  Well, that’s pretty much dead.

In its place is humiliation — undeniable failure by Republicans, in control of every lever of federal power, to accomplish the one thing they have, for seven long years, promised their most ardent followers.

Of course, the seeming collapse of “repeal and replace” is primarily due to the incoherence of Republican healthcare “thinking” in the Obama era. Universal, or even near-universal, access to healthcare can only be achieved through something like a single-payer, Medicare-for-all approach or a market-based, but government-subsidized, approach.  Republicans, from the Heritage Foundation to Mitt Romney, championed the latter approach … until President Obama adopted it, whereupon it became a despicable liberal plot. And thus, when charged with “fixing” what they decried as the “disaster” of Obamacare, Republicans had nowhere to turn.  They had only three choices – embracing the “socialist” heresy of single-payer, merely tweaking the market-based solution they had transformed into heresy, or stripping healthcare from millions of voting Americans. Faced with three intolerable choices, the Republicans choked and did nothing.

Despite their obvious failure, Republicans will not, cannot, readily admit that the central plank of their electoral platform for the last four election cycles is, and always was, bunk.  The blame for failure will have to be diverted elsewhere.  And Mr. Trump is a large, visible, and obvious target for blame.

Republican officeholders as a class have never been happy with Mr. Trump’s ascendance. He is not a “conservative,” as that term has come to be defined by the Republican intelligentsia.  He is not an evangelical Christian, even if some visible leaders of the political wing of evangelicalism have gulped hard and embraced him.  He is not really even a Republican, having chosen to run as one for purely opportunistic reasons.

Instead, for institutional Republicans, he is an accidental messiah, unlooked-for, fundamentally unwelcome, but offering in his tawdry, tweeting persona the prospect of transformational policy victories. “We’re gonna win so much you’re gonna get sick and tired of winning.”

What the healthcare debacle makes clear is that, in addition to his manifold personal deficiencies, Mr. Trump has no talent for crafting policy, jawboning legislative coalitions, or selling hard policy choices to the public.  Instead, his performance throughout this year’s healthcare debate has been vintage bad Trump — uninformed and essentially uninterested in the actual substance of legislation, alternatively blustering, threatening, or fawning, always preening and self-absorbed, wildly inconsistent, and ultimately petulant.  In the hard business of governance, he is anything but a “winner.”

So what has all this to do with impeachment?  Only this — regardless of all the endless debates on this blog and elsewhere about whether Mr. Trump has committed statutory crimes or impeachable offenses, he will not be impeached or removed from office unless a solid majority of the political class of both parties is convinced that his continued presence in office disserves the nation.

I emphasize “both parties” for two reasons, one mathematical and the other political.

The obvious point is that the Constitution requires a majority vote in the House of Representatives to approve an article of impeachment, and a two-thirds vote in the Senate for conviction and removal.  The Republicans now hold majorities in both houses and thus impeachment is impossible unless significant numbers of Republicans repudiate a president of their own party.  And liberals who dream of Trump’s removal need to remember that, even if (somewhat improbably) the results of the 2018 midterm elections were to give Democrats the House and a narrow majority of 51 in the Senate, not every House Democrat would be certain to vote for impeachment and the two-thirds threshold in the Senate would remain mathematically impossible without at least sixteen Republican votes.

The political point is that elected Republicans are – let’s be honest here – profoundly unlikely to abandon Mr. Trump at all, and certainly will not do so unless they become convinced that he is not merely a bad man, but a fatal impediment to Republican policy objectives and their personal political interests.  They may never reach that conclusion.

But Trump’s catastrophically inept performance in the healthcare debate may — and I emphasize may — be the first step toward a moment when, if presented with incontrovertible evidence that Mr. Trump has committed acts traditionally viewed as impeachable, Republicans will vote to rid themselves and the country of their accidental messiah.

 

Debunking the claim that the Foreign Emoluments Clause doesn’t cover Presidents

18 Tuesday Jul 2017

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Several days ago, I wrote skeptically about the claim advanced by Seth Barrett Tillman and Joshua Blackman that the Foreign Emoluments Clause of the Constitution doesn’t cover Presidents.  The online magazine Slate has just published a more extensive, and in my view, dispositive critique of the Tillman-Blackman argument.  The article by Professors Gautham Rao and Jed Handelsman Shugerman, is accessible here, and well worth reading.