Author Archives: impeachableoffenses

Crime is NOT a prerequisite for impeachment

03 Thursday Jan 2019

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By Frank Bowman

In a recent post, my blog co-author Sam Crosby noted a new article in the Harvard Law Review Forum by Professor Nikolas Bowie arguing that impeachable “high crimes & misdemeanors” must be criminal in character. Professor Bowie relies primarily on his exegesis of arguments made by former Justice Curtis at the impeachment trial of President Andrew Johnson.  While Prof. Bowie’s position has the virtue of being arrestingly contrarian, it is also dead wrong, inasmuch as he misreads the text and structure of the constitution, the entire sweep of Anglo-American legal history, and indeed the Johnson impeachment itself. 

Professor Bowie ignores copious evidence that the Framers and other members of the founding generation had a sophisticated understanding of British parliamentary impeachment practice and pre- and post-Revolutionary American impeachment practice that informed their adoption of the phrase “high crimes and misdemeanors.”  That phrase had been used for centuries, on both sides of the Atlantic, to embrace both criminal and non-criminal official misbehavior. As both Raoul Berger in his classic 1970s study and I in my upcoming book conclude, there is no evidence that any impeached official in either Great Britain or America prior to 1788 ever successfully defended against impeachment on the ground that his conduct was not criminal. The historical derivation of the phrase “high crimes and misdemeanors,” together with multiple statements at the Constitutional Convention and later by the founding generation make clear that, as a matter of original understanding, impeachable conduct was not limited to indictable crime. 

In addition, Prof. Bowie also (quite inexplicably) ignores the evidence of every other American impeachment post-1788 except that of President Johnson.  Those impeachments, whether of judges, legislators (one), or executive branch officials are chock full of charges of non-criminal impeachable conduct. Senator William Blount was impeached in 1797 on five articles for an outrageous scheme to give Great Britain control of Spanish holdings in Florida and Louisiana. The first of the articles alluded obliquely to violations of the Neutrality Act, which if charged in a court might have been criminal, but the other four articles alleged no conduct even arguably criminal. Blount was acquitted, but only because the Senate seems to have concluded that senators are not “civil officers” subject to impeachment. Multiple federal judges have been impeached and some convicted and removed for non-criminal behavior. The articles of impeachment reported out of the Judiciary Committee against Richard Nixon contain numerous allegations of non-criminal behavior and the Committee concluded that crime was not a requirement for impeachment.

Prof. Bowie attempts to elide the overwhelming historical evidence two ways. First, he focuses on the procedures in American impeachments and some of the terminology used to describe them. In particular, he emphasizes the trial-like features of the House and Senate decisional process and the employment of terms like “convict” or “conviction” to describe the Senate’s verdict. But this is a remarkably elemental error. It is not the procedures of American impeachments (or any other legal proceeding), but their consequences that establish their fundamental character. What distinguishes crime from other delicts is not the procedures employed to determine liability, but the potential consequences attendant on a finding of liability.  Crimes can result in loss of life, freedom, or property, and are attended by public opprobrium that does not necessarily attach to any mere civil judgment.  It is because of the uniquely severe consequences that follow a criminal conviction that the law establishes uniquely protective procedures as a prerequisite to such a conviction. Criminal procedures attach to criminal consequences, not the other way round.

British impeachments were essentially criminal in character — an impeached official in Great Britain could be imprisoned, banished, fined, stripped of all his property, or even executed.  The Framers of the American constitution (and their forbearers who drafted early American state constitutions) consciously divested impeachment of all characteristically criminal punishments, leaving only removal from office and the potential disqualification from future office-holding. 

Article I, Section 3 states:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold any Office of honor, Trust, or Profit under the United States; but the party convicted shall nonetheless be liable and subject to Indictment, Judgment and Punishment, according to Law.

In short, the Framers not only stripped impeachment of its criminal consequences, but expressly stated that such consequences could be imposed on office holders who had committed statutory crimes only following separate proceedings in the ordinary courts. They did this in part because they found the sometimes bloody results of British impeachments unseemly, but more importantly, they were aware that British impeachments were subject to the criticism that they imposed criminal consequences for conduct not previously denominated illegal in violation of the common law maxim nulle poena sin lege.  By eliminating criminal punishment for impeachment, the Framers could protect the polity against overreaching officials by expanding the reach of impeachable conduct without offending common law principles regarding criminal liability.

Professor Bowie blithely ignores the plain implications of the textual restrictions on the consequences of impeachment. He simply asserts, ipse dixit, that “it is undoubtedly a punishment to strip someone of their office and disqualify them from holding certain offices because of their commission of ‘high Crimes and Misdemeanors.'” With apologies to Prof. Bowie, this is a strikingly shallow assertion. Of course, removal and disqualification from office are unpleasant and undesirable events, and in that sense they are “punishment” in the most general colloquial sense. But the same is true of an award of monetary damages following an adverse judgment in a slip-and-fall civil tort suit or breach of contract action, or the loss of one’s law license in a bar disciplinary proceeding. Merely because the consequence of a legal proceeding is unpleasant does not make the consequence a criminal punishment or the proceeding a criminal trial. What is most notable about the constitutionally prescribed consequences of impeachment is precisely that they are not ordinary punishments for crime. 

Professor Bowie tries to circumvent unmistakable textual and structural evidence of the non-criminal character of impeachment by pointing to the ex post facto clause and the constitutional prohibition on bills of attainder. He argues that these provisions ban retrospective imposition of criminal punishment and therefore prevent Congress from impeaching an officeholder for conduct that was not statutorily criminal at the time of the impeachment. But, of course, this argument is completely circular. It only follows if impeachments are criminal proceedings. If they are not — and as we have seen the Framers wrote the impeachment clauses to strip impeachment of its criminal character — then the ex post facto and bill of attainder clauses impose no restrictions on the scope of impeachable conduct.

Indeed, Prof. Bowie completely misunderstands the import of the ex post facto clause and the constitutional prohibition on bills of attainder for the reach of impeachable offenses under the American constitution.  In fact, he has things exactly backwards. George Mason, who introduced the phrase “high crimes and misdemeanors” into the constitutional text did so in part because, in the absence of bills of attainder and the ability of the legislature to define crimes retrospectively, a broad definition of impeachable offenses was required.  Said Mason, “As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachments.” Otherwise, in the Framers’ view, the polity would be defenseless against a chief executive whose conduct subverted the constitution, but broke no existing penal law.  This same fear was what Alexander Hamilton referred to when he spoke in the Federalist of impeachable offenses as being in their essence “political.”

Finally, Prof. Bowie misunderstands the Johnson impeachment.  He focuses narrowly on the arguments of one of President Johnson’s attorneys, who quite naturally would argue that impeachment requires crime, and a few cherry-picked comments from senators regarding that argument.  But he completely ignores everyone else’s arguments and the statements of other senators that don’t support his thesis.  More importantly, he ignores the political context of Johnson’s acquittal. The Senate’s decision to acquit Johnson, by one vote shy of the required two-thirds majority, had far more to do with the tortured politics of Reconstruction, the electoral prospects of the Republican Party in 1868, and the fact that a great many people did not want to see Ben Wade (who was next in line of succession) become president even for a year, than it did with any supposed rule that impeachable conduct must be criminal.

The overwhelming consensus of serious students of impeachment is, and long has been, that impeachment does not require criminal conduct. Professor Bowie offers nothing to disturb that settled view.

The Case for Impeachment of Donald Trump, Part 2 (Electoral corruption)

12 Wednesday Dec 2018

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By Frank Bowman

This is the second in a series laying out the case for and against impeachment of Donald Trump based on currently available information.  In the first installment, I observed that the case for impeachment rests not on any single event, but on a pattern of behavior that could be argued to fatally damage the personal or political legitimacy of the president and/or amount to subversion of the constitutional order broadly conceived.

Here I consider that portion of Mr. Trump’s conduct that relates to the American electoral process.

The political legitimacy of any president who ascends to the office by election, rather than operation of constitutional or statutory succession mechanisms, rests primarily on success in winning an election.  Even a vice president who succeeds to the office after the removal or death of a predecessor receives a slightly attenuated version of the same kind of democratic legitimacy by having run as the vice presidential partner of the predecessor.  More broadly, the entire federal government is legitimated by regular elections of both Congress and the president. In consequence, presidential misconduct of two types related to elections may constitute an impeachable offense.

The first type is any presidential behavior that casts doubt on the essential validity of the president’s own election. The Framers made a particular point of noting that misconduct of that type would be impeachable.  George Mason maintained that a president who “procured his appointment” by corrupting the “electors” must be impeachable.  2 The Records of the Federal Convention of 1787 65 (Max Farrand ed., 1911). Gouverneur Morris made the same point. Id. at 69. By “electors” they meant members of the Electoral College because that regrettable institution was envisioned by the Founders as a body of illustrious men selected by the states who would exercise their independent judgment in selecting a proper president for the nation.  As originally designed, the process of picking a president had no place for voting by the citizenry.  The “electors” made the choice.

To the Founders, the only obvious way of corrupting the presidential selection process was to corrupt the tiny circle of eligible voters – the electors.  Today, of course, electors exercise no independent judgment.  They merely transmit the preference of the voters of their state.  Presidential elections are now supposed to be essentially, if sometimes imperfectly, democratic exercises that reflect the will of the people. Therefore, practical modern electoral corruption (other than outright ballot box stuffing or its modern computerized equivalents) must take the form of distorting the judgment of the electorate, rather than the electors.

That sort of corruption, if of sufficient magnitude, might be impeachable — with this significant caveat:  The arts of voter persuasion inevitably have some aspects of flim-flam.   Political spinning, concealment of one’s own flaws, factually questionable slurs on an opponent’s record or character, appeals to emotion rather than logic — all could be said to distort reasoned voter choice.  But just being an ordinary politician cannot be an impeachable offense.  Even concealment of a disreputable fact about one’s past surely cannot alone be impeachable. Everybody has skeletons.  Impeachments on this ground would permit relitigation in Congress of every presidential election. Therefore an impeachment on grounds of corrupting the electorate would have to be based on behavior so far outside the elastic norms of modern political conduct that it both demonstrated the successful candidate’s contempt for the democratic process and put the fair operation of democracy at risk.

Something like this is among the subjects of Special Counsel Mueller’s Russia investigation.  There seems little doubt, for example, that members of Mr. Trump’s family and campaign apparatus sought negative information about Democratic nominee Hillary Clinton from representatives of the Russian government, most particularly at a meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort and various Russians at Trump Tower in July 2016.  Whether they received such information or, alternatively, encouraged Russian operatives to release it secretly through the WikiLeaks platform, remains to be seen.

The mere act of seeking negative information about a political opponent, even from a foreign source is neither criminal (contrary to some breathless suggestions in the media) nor in itself a violation of any democratic norm.  After all, if a candidate is informed that important, potentially election-changing, negative information about the opposition is held by some person or institution that happens to be “foreign,” it would hardly seem appropriate, or even constitutional, to prohibit that candidate from asking the foreign source to provide the information.  Depending on the nature of the information, one can argue that a failure to ask would itself be a dereliction.  Suppose, for example, that the foreign power was offering information that an opposing presidential candidate was herself a spy or active traitor.  Surely there could be nothing inherently wrong in pursuing a credible claim that such information existed (although doing so secretly and without the knowledge of official national security agencies would be, for reasons explained below, profoundly unwise) .

What makes Trump’s case especially questionable is that it would have been plain to his representatives (and to Trump himself if, as seems likely, he knew about the meeting) that any information would be coming from intelligence services of a hostile foreign state and, because the information was initially touted as Secretary Clinton’s emails, it would have to have been stolen or hacked by those services.  Thus, in accepting the information, the Trump campaign would have been benefiting from a crime of espionage.  Moreover, the source of such information would automatically raise serious questions about its accuracy, particularly given the known antipathy of the Russian government to Hillary Clinton.

Finally, and dispositively in my view, the mere effort to obtain tainted information from Russian sources necessarily creates precisely the situation that Mr. Trump now faces.  The fact of such contacts undertaken without coordination with U.S. intelligence agencies is, at least, politically discreditable.  It thus places Trump in his capacity as President at a disadvantage in any dealings with Russia because they have the power to disclose more about the contacts and thus do political damage to Trump.  This reality is not altered even if, in fact, nothing more happened than we now know.  Nothing  prevents the Russians from claiming that there was more, or fabricating evidence to that effect, or threatening Trump that they will do so unless he is compliant with Russian objectives.  By even entering into conversation with Russia about this subject, Trump gave a foreign adversary leverage over him in the event of his election.

A second issue relating to Russia and the 2016 election is the, by now undisputed, fact that Russia attempted to intervene in the election against Hillary Clinton and for Donald Trump.  Critically, it did so, not by open declarations of its government’s preferences (which is thought bad form in the international community, but is hardly illegal by any standard), but by surreptitious proliferation of anti-Clinton/pro-Trump social media content.  Whether this conduct is in any degree chargeable to Mr. Trump depends on whether he knew about and encouraged it.  He has obstinately denied that any Russian meddling occurred and denied with even greater vehemence that he knew about or encouraged whatever the Russians may have done.

As of this writing, it is plain that Mr. Trump was perfectly willing to accept secret electoral help from a traditionally hostile foreign power.  More cannot yet be said. Whether Trump’s behavior vis-a-vis the Russians was illegal or not, it was both far outside the historical norms of American democratic politics and an egregious betrayal of American foreign policy interests.

A third issue related to the 2016 election is the assertion by federal prosecutors that Mr. Trump guided the payment by his former lawyer Michael Cohen of hush money to two women with whom he had had extramarital affairs, and that these payments were criminal violations of federal election law because they amounted to illegal, unreported campaign contributions.  Mr. Trump’s responses to these allegations have varied so frequently that tracing them is pointless.  The key issues here are three: First, the prosecution alleges and Cohen admits that the purpose of the payments was to deceive voters.  Second, proving that Trump’s purpose in authorizing the payments was primarily political rather than personal (a desire to hide his behavior from his wife) might be challenging.  Third, even if criminal, this behavior standing alone is surely not impeachable.  The analogy to Bill Clinton efforts to conceal his affair with Monica Lewinsky is too painfully obvious.

It is presumably for these reasons that Congressman Jerrold Nadler (D-NY), incoming chair of the House Judiciary Committee, recently observed that the hush money payments may be impeachable offenses in a technical sense, but not serious enough to warrant impeachment by the House. That being, said, the mistress hush money payments do form a part of a larger pattern of willingness to ignore both the law and democratic norms in pursuit of election victory.

In addition, Mr. Trump has consistently engaged in a more general effort to subvert the integrity of the U.S. electoral process.  This has taken the form of relentless, and entirely unsubstantiated claims of individual voter fraud or corruption on the part of election officials.  This pattern began before the 2016 election with Trump’s warnings that, should he lose, it would only be because of election fraud.  It continued after the election with Trump’s repeated – and totally baseless – claim that three to five million illegal votes were cast in 2016 by non-citizen immigrants.  This was followed by Trump’s appointment of a short-lived, tragicomic, commission to investigate the existence of vote fraud; the commission disbanded after eight months, partly due to the incompetence of its Republican principals, but even more directly due to the complete absence of any evidence to support its animating premise.

Mr. Trump’s dogged adherence to the voter fraud fantasy can be explained in large measure by his well-documented insecurity over the fact that Secretary Clinton received about 2.9 million more popular votes than Mr. Trump in the 2016 election, even though Mr. Trump won the Electoral College.  However, his assaults on the integrity of the election system have not been limited by this personal idiosyncrasy.  In the days following the midterm elections of 2018, when a number of races in Arizona and Florida were so close that recounts seemed likely, Mr. Trump immediately began charging – without any evidence – that election officials were corrupt and that the elections were  being stolen.

The American democracy will only survive so long as the people have confidence that their votes will be counted and honored.  A president who incessantly questions the essentially integrity of elections cannot be excused on the ground that he is merely salving his tender ego.  Nor is a persistent pattern of questioning electoral integrity any part of traditional American political discourse.  It is deeply dangerous, deeply subversive of the constitutional order, and for that reason could properly be considered as part of a larger pattern supporting impeachment and removal from office.

Michael Cohen’s sentencing pleadings

10 Monday Dec 2018

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By Frank Bowman

On Saturday, I wrote a piece for Slate analyzing some notable peculiarities in the two sentencing memoranda filed regarding former Trump lawyer Michael Coehn by the U.S. Attorney’s Office for the Southern District of New and Robert Mueller’s Special Counsel’s Office.  The link is here.

I note that the prosecutors have treated Cohen quite differently than one would treat an ordinary cooperating witness.  And I speculate that the decision to ask for a quick sentencing and to file two sentencing memos with rather different takes on Cohen’s usefulness and the credit he should get for cooperation may be a coordinated strategy to pressure Cohen to give full cooperation on everything he knows, rather than the partial cooperation he’s apparently given to date.

I note in the Slate piece that the Cohen situation is quite odd in comparison with ordinary prosecution practice.  What I find odd are three points, only two of which I really touched in the Slate piece and not completely there.  The first is the fact that SDNY and Mueller are employing Cohen as a “cooperator” at all, given that he hasn’t signed a cooperation agreement and won’t agree to be fully debriefed.  I’m sure prosecutors have done this from time to time, but I can’t recall doing that or seeing it done.  As I indicated in Slate, in any case I ever ran, my response to that kind of half-baked cooperation would have been to show the guy the door.  A half-cooperator just can’t be trusted and is a ticking bomb in your case.

Of course, I can see why, in this case, SDNY and Mueller would agree to debrief Cohen on whatever he’d give, while giving him no promises.  The importance of the case and Cohen’s position vis-a-vis Mr. Trump would make even partial information irresistible. (And by the way, I don’t recall — though certainly it’s probably been done — ever encountering a defense lawyer who’d let his client do multiple debriefings without a cooperation agreement.  Leaving all else aside, everything the guy says is arguably fair game for both sentencing enhancements under the guidelines and further charges.)

The second oddity is the fact, which I didn’t specify in Slate, of effectively letting the SDNY memo drive the sentencing train.  Of course, the SDNY charges are more serious from a criminal law point of view and carry longer sentences, so that gives SDNY more leverage over the outcome.  But in this case, it’s Cohen’s relationship to the Mueller investigation that obviously matters.  In SDNY, Cohen is just a run-of-the-mill white collar schnook.  Whether he does or doesn’t cooperate fully with respect to his own financial misdeeds is really unimportant.  What matters is what he can say about Mr. Trump, Trump’s business associates, and family.  I find it difficult to believe that SDNY would take a sentencing position based purely, or even primarily, on their views about Cohen’s cooperation in relation to his personal crimes.  Granted, SDNY has a reputation of having a high opinion of its own importance, but I don’t think even they are that parochial.  One has to think that the Mueller and SDNY positions have been coordinated with Mueller’s views being paramount.  Thus, the question is to what end.  My Slate piece is simply a speculation about what that end might be.

The third, and to me most outstanding, oddity is the timing of the sentencing (for both Cohen and Flynn).  I don’t recall ever seeking an immediate sentencing for a cooperator before they have completed their cooperation, including all testimony.  In any ordinary situation, and for the reasons I describe in Slate, it makes no sense.  There has to be a tactical reason for doing this.  The best explanation I can come up with for Cohen without knowing the inside scoop is the one I put in Slate.

Nonetheless, there are other possibilities.  One is that the three sentencing positions taken this week by Mueller, et al — as to Cohen, Flynn, and Manafort — are intended to be seen together as a signal to other potential cooperators.  The signal would be: (1) you cooperate fully, you get no prison (Flynn); (2) you cooperate, but hedge, you go to prison with only a very modest reduction (Cohen); (3) you screw with us, we’ll put you away for life (Manafort).  But if this is what they’re doing, who is the intended recipient of the signal?

A final possible explanation of the odd timing of the Cohen and Flynn sentencings is that Mueller doesn’t view the endpoint of this investigation as a trial in which Cohen and Flynn will testify.  Perhaps his focus is a report about the activities of the president.  If that’s the case, then ordinary practices regarding cooperators might be altered.  Presumably, Cohen has testified before a grand jury under oath and had his factual claims locked in so that any later material change during, for example, a congressional hearing in which he testified under oath would subject him to an additional charge of perjury.  And for Mueller, that may be good enough.

We shall see….

BTW, the reflections above are in part a response to a very kind and informative email I received from former federal prosecutor Julie Werner-Simon.  I reproduce it with my thanks below:

Dear FB:  In response to your piece this weekend in Slate re: Cohen’s cooperation, I, as former lifer-federal prosecutor (in white collar and organized crime), have these clarifications

to your point about the “odd”-ness in two prosecution teams having different “sentencing-takes” on the same defendant who is “cooperating” in multiple federal investigations. 

1.   What happened with Michael Cohen happened in multiple cases I worked as a federal prosecutor. The cooperating defendant (who was providing information to me) gave full and complete information and assisted in my investigation of other crimes and other defendants.  That same defendant “came in late” and provided little to the other team’s case.

2.   Our respective sentencing memoranda reflected the different “takes.”  What the other prosecution team was not permitted to do was “devalue” my team’s assessment of the cooperator.  The coordination in that case was akin to “driving a clutch” and both teams had to make sure the car did not stall out.  That we had different takes was not odd; how we orchestrated/presented the different takes was what required precision and finesse – as the government is required to ultimately speak in one voice vis-a-vis a defendant.

3.   With respect to Cohen “giving cooperation” but not being deemed by the federal prosecutors as a Sentencing Guideline “5K1.1 cooperator” is addressed in an interview I gave Friday eve to Millennial Politics. Here is the link for your review. 7 Takeaways From The Cohen Sentencing Memos | Millennial Politics

I thank you for your reporting which is based on experience “in the trenches.”  For me, it is essential that people who have held the job, conducted investigations and who understand the U.S.C. (the United States Code) as well as rules of evidence (Fed. R. Evid.) and trial practice – – actually write about it.

         Sincerely,

·       Julie A. Werner-Simon

·       Former Federal Prosecutor, 1986 – 2015, Senior Litigation Counsel, Major Frauds Section U.S. Attorney’s Office, Los Angeles, as well as Deputy Chief, Organized Crime Strike Force 

·       California Bar License 141630

·       Pennsylvania Bar License 37844

·       Post J.D. Fellow, Constitutional Studies, Southwestern Law (2017-19)

·       jawsMEDIA.LA@gmail.com

Impeachable Offenses? on Cheddar

07 Friday Dec 2018

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Several days ago, I was intrigued to do an interview about the (almost entirely redacted) sentencing memorandum of General Flynn with a new media outlet I’d never heard of – Cheddar, which bills itself as the “leading post-cable news, media, and entertainment company.”  For those interested in the interview, or just in seeing Cheddar at work, the link follows:

https://cheddar.com/videos/special-counsel-mueller-recommends-no-jail-time-for-michael-flynn

Frank Bowman

The Case for Impeachment of Donald Trump, Part 1 (The Forest & the Trees)

06 Thursday Dec 2018

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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.

Book Complete: Back in the saddle again

28 Wednesday Nov 2018

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By Frank Bowman

I’ve been largely absent from this space for the last few months pushing to finish my book on impeachment.  My able research assistant and indefatigable blog co-author Sam Crosby has been keeping things going here in my absence.  I’m happy to report that the manuscript is done, off to the publisher, and that my long-suffering wife is no longer, as she puts it, a book widow.

The book, to be published in the spring by Cambridge University Press, is titled — High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.  Although it is scarcely the only work on the subject to appear in this distressed season, it offers something rather different than the other books rushed to press in 2018.  I’ve gone back to the origins of impeachment in medieval England and meticulously examined the whole development of the mechanism in Great Britain, pre-1787 America, in the founding era, and thereafter (including detailed chapters on the impeachments or near-impeachments of Presidents Andrew Johnson, Nixon, and Clinton) to develop what I think is a comprehensive and historically supported theory of the proper scope of presidential impeachment.  Chapters 11-14 consider particular grounds for impeachment of possible relevance in the case of Mr. Trump.  Chapter 16 lays out the case for and against doing just that.

When the book is released, I will shamelessly shout it from the rooftops.  In the meantime, I will undoubtedly refer to some of its conclusions here.

Impeachable Offenses in Slate: All about AG Sessions’ acting replacement

08 Thursday Nov 2018

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By Frank Bowman

Jeremy Stahl of Slate wrote a nice analysis of why fired Attorney General Jeff Sessions’ acting replacement, Matt Whittaker, is a troubling choice for a position with influence over the Mueller investigation.  Jeremy was kind enough to quote me and reference this blog on a couple points.  The article appears at this link.

Impeaching Kavanaugh Is Not an Option

03 Wednesday Oct 2018

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By Frank Bowman

This morning as I walked into the cafe where I get my morning coffee, I passed a newspaper vending machine (yes, they still exist) from which a USA Today headline blared the suggestion that the fight over Judge Kavanaugh’s Supreme Court nomination might not end with Senate confirmation.  IMPEACHMENT, the article suggested might follow if Democrats gained control of Congress. It even quoted some congressional Democrats intimating that congressional investigation and even impeachment were live possibilities.

Fiddlesticks.

It is true that federal judges, including Supreme Court justices, can be, and have been, impeached.  It is also true that there is precedent for impeaching a federal judge based on pre-confirmation conduct and/or lies told during the confirmation process (which is presumably the basis on which any impeachment investigation of Kavanaugh would be launched).

In 2010, Thomas Porteus, U.S. District Judge for the Eastern District of Lousiana, was impeached, convicted, and removed on charges of corruption in his previous office of state judge and also for false statements made during the process of Senate confirmation.  This impeachment seems to have settled the previously unresolved question of whether conduct prior to taking office could be the basis for impeaching federal judges who, per the Constitution, serve during “good behavior.”

That said, the idea that anything either known or suspected about Kavanaugh would stack up as a plausible impeachable offense is just unsupportable.  He may well be lying about his encounter with Christine Blasey Ford thirty-some years ago. But whatever people’s intuition or even moral certainties, the truth of that affair is profoundly unlikely ever to be known. (The only way the matter could be resolved with any certainty would be if Kavanaugh’s supposed wingman in the business, Mark Judge, were to step forward and confirm Dr. Ford’s account. And that seems vanishingly unlikely.)

He may be lying about how much he drank in high school and college, and about whether he behaved like a jerk.  But those questions are in some measure subjective.  One person’s aggressive drunk is another person’s hale-fellow-well-met party enthusiast.  For that reason, not to speak of the passage of time, the truth will remain contestable.  But far more importantly, tidying up your youthful social indiscretions is just not impeachable conduct.

He may be lying about exactly what he knew and did during his time at the Bush White House, obscuring his participation in partisan maneuvering around judicial nominations or other matters.  If conclusively proven, that would matter far more than fudging about his youthful drinking habits. But the odds are extremely high that, even if every scrap of paper relating to his work in the Bush years were disclosed, no perjury will be provable.  At most, shadings of ambiguous truth.

I can hear Democratic partisans screaming, “But what if we can conclusively prove he lied?!!! It’s not that he was a drunk or a partisan hack, but he lied under oath!!!  Surely that’s impeachable.”  To which the answer is, yes, judges have been impeached for perjury, but in every case the lies were about the judge’s own participation in overt corruption. There is no precedent either in America or Great Britain for impeaching a judge or any other official for the kind of lies that amount to making oneself look a little more upright and a bit less partisan than one actually is.

Leave to one side the rank hypocrisy of Democrats — who lined up in solid phalanx against impeaching Bill Clinton for perjury about adultery — hollering to impeach anybody not for what they did, but for lying about it. No sensible person should want to open the door to a world in which Congress demands a do-over on federal judges every time control of the legislature changes hands.  If either party starts trying to reverse confirmations because they didn’t care for the results, the legitimacy of the federal courts as constitutional arbiters, already tottering, would be utterly destroyed.

Now, let’s be clear.  I’d rather Judge Kavanaugh were not confirmed.  If he committed one or more sexual assaults when young, and even if there is probable cause to believe he did, he ought not be confirmed. If he is lying about other things, he ought not be confirmed.  Even if he is telling the truth as he understands it about all the episodes of his youth, his outburst during the Senate hearing revealed him to be both bitterly partisan and unable to maintain the equanimity essential to a Supreme Court justice.

But if he is confirmed, impeachment ought not even be seriously contemplated, at least absent revelations of misbehavior or criminality on a completely different plane that anything so far revealed.  Even launching an impeachment investigation based on no more than what is now known would be a grave disservice to the country. The process would further politicize the court and embitter (or further embitter) Kavanaugh, other members of the Court, and even the most moderate of Republicans.

And any such effort would surely fail. There is almost no chance that anything exposed by such an investigation would produce revelations that even all House Democrats would consider impeachable, still less any Republicans whatever.  In the surpassingly unlikely event that articles of impeachment could secure a majority of the House, the odds of gaining a two-thirds majority in the Senate, which would require at least 16 Republican votes even if the Democrats control the Senate after November, approach zero. The whole process would be a farce, a transparent pander to angry elements of the Democratic base.

Democratic leaders in both Houses should firmly suppress any notion that impeachment is possible.  Either Kavanaugh is stopped now, or he’s on the high court until he dies.  Those are the possibilities.  Anything else is dangerous fantasy.

 

 

 

 

Trump’s Escalating Assault on the Rule of Law: The True Ground for Impeachment

03 Monday Sep 2018

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By Frank Bowman

As many others have observed, the longer the Trump era continues, the more we become desensitized to almost-daily assaults on basic norms of republican government and the rule of law.

Today, the person in the White House issued a Tweet that, in any previous era, indeed even a year ago, would have summoned an avalanche of condemnation from every corner of the civic and political world.  He said:

Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff……

In short, Mr. Trump is saying — openly, plainly, overtly, with no tinge of embarrassment or shame — that the United States Department of Justice should not indict crooked politicians if they are of the same party as the president.

The fact that the two congressmen in question are, without serious question, as guilty as it is possible to be — Duncan Hunter stole at least $250,000 in campaign funds and spent it on himself and his wife, and in 2017 Chris Collins was photographed committing insider trading while on the White House lawn — cuts no ice with Trump.  The idea that the job of the Department of Justice is to prosecute the guilty regardless of party is as far beyond Trump’s comprehension as the particulars of Einstein’s theory of relativity.  Every component of the federal government exists only to serve him. The Justice Department exists to punish his enemies and sweep the sins of his sycophants under the rug.  And he no longer bothers even to pretend otherwise.

Let us be absolutely clear on one point — No other president in the history of these United States has ever publicly said anything remotely approximating Trump’s outburst today.  So far as we know, only one other president has privately entertained such views … and when they became public knowledge in the Watergate scandal, he was forced to resign to avoid impeachment.

But as sure as eggs is eggs, the response from Republicans to this historic repudiation of a bedrock principle of American governance will be … silence.

And even among Trump’s opponents, outrage will be muted.  Because one can sustain fury, even when fury is merited, only so long.  And the outrage will be fleeting.  Because, since Trump knows nothing he says or does will evoke even a muted whimper of protest from the organization formerly known as the Grand Old Party that now cringes at his feet, tomorrow will bring a new abomination that will supplant memory of today’s. He is slowly — no, not slowly, but with frightening speed — warping our collective sense of tolerable behavior in public office, indeed of right and wrong itself.

Should Democrats win control of Congress in November, and should they be disposed to consider impeachment, this is where their attention should focus.  Not, for heaven’s sake, on whether he paid off two women of doubtful virtue (and even more doubtful discrimination in their choice of personal companions) to keep them quiet.  Not on whether Trump did or didn’t know in advance about the dodgy Trump Tower meeting with the Russian envoys.  The central impeachable offense here is not personal immorality, or incidental violations of this or that statute, or even an obvious willingness to accept electoral assistance from a longstanding national foe.  All of these are evidence of Trump’s primary impeachable offense, but are not the offense itself. The core of any impeachment effort must rest on Trump’s daily destruction of the norms of behavior that make constitutional government possible.

Since 1640, when Parliament impeached the Earl of Strafford for his efforts to elevate royal prerogative over the common law and substitute the will of the monarch for the judgment of Parliament, it has been an impeachable offense “to subvert the ancient and well established form of government … and instead thereof to introduce an arbitrary and tyrannical way of government.”  That’s what we face in the United States in 2018.  And we need to be bold and honest enough to do something about it.

NOTE: Since I first posted this yesterday, the Republican response (with the single exception of Sen. Ben Sasse R-Neb., who is not running for reelection) has, as predicted, been … silence.

Impeachment for Concealing the Mistresses? Not Now, Maybe Later

22 Wednesday Aug 2018

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By Frank Bowman

On August 21, 2018, Michael Cohen, Mr. Trump’s former lawyer, pled guilty to eight felony charges, including two campaign finance violations.  The last two impose criminal liability for Mr. Cohen’s role in paying two women involved in affairs with Mr. Trump to prevent their stories from becoming public before the election.  Critically, during his plea colloquy with the judge, Mr. Cohen stated under oath that, “I participated in this conduct … for the principal purpose of influencing the [2016 presidential] election,”  and acted “in coordination with and at the direction of a candidate for federal office” — Mr. Trump.

Cohen’s statement, if true, means that Mr. Trump is guilty of a conspiracy to violate election law under 18 U.S.C. Sec. 371, and of the election law violations themselves under a complicity theory, 18 U.S.C. Sec. 2.  Of course, as has been discussed ad infinitum over the past year, the Justice Department has a policy not to indict a sitting president and there is no indication that they intend to deviate from that policy now.

So lots of folks (including Chuck Todd of NBC, Bret Stephens of the NY Times, and my energetic student and blog co-author Sam Crosby) have jumped immediately to the suggestion that these campaign finance violations constitute proper grounds for impeachment.  I disagree, for both constitutional and political reasons.  At best, depending on how the Mueller investigation finally plays out, the payoffs could form part of a plausible impeachment argument.

First, some background.  The constitution defines impeachable conduct as “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are crimes, but “high crimes and misdemeanors” need not be.  The phrase is a term of art adopted from British parliamentary impeachments and was not limited to criminal conduct. Two centuries of American usage have confirmed this point. Commission of a crime is not a necessary precondition for impeachment.

Conversely, not every violation of the criminal code is impeachable. The constitution speaks of impeachment for ‘”misdemeanors” — or perhaps only “high misdemeanors” — but it is well nigh impossible to think of any modern crime classified as a misdemeanor that would justify removal of a president.  Jaywalking. Shoplifting stuff worth less than $300. Driving under revocation. Punching somebody in the nose in a fit of anger.  All misdemeanor crimes. But preposterous as grounds for impeachment.

Not even all felonies are proper grounds for impeachment. The basic rule that has evolved over the years is that “high crimes and misdemeanors” are serious offenses that either endanger the political order or demonstrate an official’s manifest unfitness to continue in office — which if the official is the president necessarily endangers the political order.

This is the lesson of the Clinton affair.  Did Bill Clinton commit the felony of perjury when he lied about sex with Monica Lewinsky? Surely.  He was impeached by the House of Representatives for doing so.  Yet he was acquitted by the Senate.  Not because he didn’t lie, but because many senators just didn’t think lying about sex was sufficiently important to merit removal of a president.

The parallel to Mr. Trump’s situation is plain.  Trump was engaged in extramarital sex.  He wanted to hide it. He arranged to pay off one of them and to reimburse the publisher of the National Enquirer for its payments to the other for the rights to her story.  Neither the sex nor even the payments were in themselves unlawful.  What made Michael Cohen a felon is that paying off the women to aid a candidate is a political contribution.  One of the payments was apparently made by the Trump Organization, and corporate contributions made directly to presidential candidates are illegal.  The other payment (to “Stormy Daniels”) was made by Cohen personally, but it far exceeded the legal limit of $2,700 per person per candidate.  Cohen made one payment and arranged the other.  Trump allegedly asked that he do it.  Hence, two crimes.

But the crimes were in the payments.  One from an illegal source, the other in an illegal amount.  What they bought — concealment of embarrassing sexual escapades — is completely irrelevant under election law.  Cohen (and Trump) would be equally guilty if the money was used to buy a shipload of red MAGA hats.

In Mr. Clinton’s case, his Republican opponents endlessly recited the mantra, “It’s not the sex. It’s the lying under oath.”  Here, Mr. Trump’s pursuers could (and some surely will) say, “It’s not the sex, it’s the concealment in violation of election law.”

One can argue that Trump’s violation of laws designed to protect the integrity of elections is more indicative of unfitness for office than Clinton’s perjury because Trump’s offense relates to the democratic process.  That is a key point, and I’ll return to it in a moment.  But the fact remains that the essence of Cohen’s payoffs of Trump’s former inamoratas is extramarital sex and a guy trying to cover it up.  The parallel to Clinton is just too strong for the Democratic Party to press for impeachment on this ground.  The cries of hypocrisy would be too loud … and they would in large measure be justified.

But what about the fact that Cohen says Trump helped him violate election law — statutes designed to protect the integrity of the democratic electoral process ?  The Founders were quite clear that efforts by a presidential candidate to corrupt the process by which he was selected would be impeachable.

At the Constitutional Convention, George Mason (who introduced the phrase “high crimes and misdemeanors” into the constitution) maintained that a president who “procured his appointment” by corrupting the “electors” must be impeachable. Gouverneur Morris made the same point. By “electors” they meant members of the Electoral College because that regrettable institution was envisioned by the Founders as a body of illustrious men selected by the states who would exercise their independent judgment in selecting a proper president for the nation.  As originally designed, the process of picking a president had no place for voting by the citizenry.  The “electors” made the choice.

To the Founders, the only obvious way of corrupting the presidential selection process was to corrupt the tiny circle of eligible voters – the electors.  Today, of course, electors exercise no independent judgment.  They merely transmit the preference of the voters of their state.  Presidential elections are now supposed to be essentially, if sometimes imperfectly, democratic exercises that reflect the will of the people. Therefore, practical modern electoral corruption must take the form of distorting the judgment of the electorate, rather than the electors.

That sort of corruption, if of sufficient magnitude, might be impeachable — with two large caveats.

First, the arts of voter persuasion inevitably have some aspects of flim-flam.   Political spinning, concealment of one’s own flaws, factually questionable slurs on an opponent’s record or character, appeals to emotion rather than logic — all could be said to distort reasoned voter choice.  But just being an ordinary politician can’t be an impeachable offense.  Even concealment of a disreputable fact about one’s past surely cannot alone be impeachable. Everybody has skeletons.  Impeachments on this ground would permit relitigation in Congress of every presidential election.

Second, therefore an impeachment on grounds of corrupting the electorate would have to be based on behavior so far outside the elastic norms of modern political conduct that it both demonstrated the successful candidate’s contempt for the democratic process and put the fair operation of democracy at risk.

Mistress-payoff election violations are too inconsequential (and too obvious a parallel to the Clinton debacle).  To figure at all in a serious impeachment case, those payoffs would have to be part of a larger pattern of  illegal or plainly illegitimate conduct designed to give the candidate an unfair advantage or to deceive the electorate.  Better yet, they should be part of a pattern of conduct that does not merely give advantage to a candidate, but places him under an obligation to some person or entity or foreign power whose interests are inimical to the United States.  In short, all the stuff that Robert Mueller is looking into.

The suspense continues….