This week, the wonderful Slate journalist Dahlia Lithwick hosts Prof. Bowman on her podcast, Amicus. You can listen at this link.
We were pleased to see that USA Today just published a review of Prof. Bowman’s new book, “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.” You can read the review here.
Andrew Johnson, Bill Clinton, British impeachments, Charles II, Duke of Buckingham, Earl of Danby, Earl of Strafford, Earl of Suffolk, Edwin Stanton, George Mason, James Madison, Jim Hines, nancy pelosi, Parliament, Peter Oliver, Reconstruction, Richard Nixon, Samuel Chase, Thomas Hutchinson, Thomas Jefferson, Warren Hastings
On June 25, Prof. Bowman published the following piece in Slate under the title, “Nancy Pelosi is taking the wrong lesson from past failed impeachments.”
By Frank Bowman
On Monday, Rep. Jim Himes of Connecticut became the latest Democrat to come out in favor of a formal impeachment inquiry. While Himes’ position on the House Intelligence Committee makes him one of the most prominent names to call for impeachment, House Democratic leadership has remained adamantly opposed to initiating such proceedings. As Democrats continue to agonize over whether to commence a formal impeachment inquiry against Donald Trump, they are trapped between two realities.
On the one hand, if they start an inquiry, the facts already known would compel a vote to impeach. On the other hand, the Republicans in the Senate will not vote to convict, regardless of the facts.
If, therefore, impeachment cannot compel removal, and if, as Speaker of the House Nancy Pelosi believes, impeachment risks loss of the House by the Democrats and enhances the chance of Trump’s reelection, what would be the point of starting the process?
I am loath to second-guess the proven political judgment of Pelosi in resisting a formal impeachment inquiry, but that judgment should at least be informed by a fair reading of history.
And as I explain in my forthcoming book, the history of impeachments—English and American—teaches that conviction of the target officeholder is not the only measure of a successful impeachment. Indeed, impeachments that did not result in convictions often succeeded in attaining most, if not all, of the objectives of those who initiated them.
Impeachment was invented by the British Parliament in the 1300s as a tool to counteract the dictatorial tendencies of the monarchy. Parliament could not remove an unsatisfactory king short of bloody rebellion. But impeachment gave it a means to check abuses of royal power by removing—and sometimes imprisoning, impoverishing, banishing, or beheading—the officials who carried out objectionable royal policies. The American founders abandoned British impeachment’s sometimes grisly criminal penalties (in part to make impeachment more palatable) but retained the distinctive procedural features of parliamentary practice—the lower house of the legislature brings the impeachment charges, and the upper house tries them.
Through the roughly four centuries during which impeachment was in active use by Parliament, a great many officials were impeached by the House of Commons but never convicted by the House of Lords. Sometimes the House of Lords acquitted the defendant outright. More often, it simply failed to act, or the process was blocked when the monarch “prorogued” (dissolved) Parliament before a trial could be held. The Earl of Suffolk (1450), the Duke of Buckingham (1626), and the Earl of Danby (1678) were all impeached but never tried because the king prorogued Parliament. Nonetheless, for each of these men and the king he served, impeachment was a personal and political blow.
The King preemptively banished Suffolk to forestall parliamentary condemnation, but Suffolk was murdered by pirates in the English Channel. Buckingham retained the King’s favor despite impeachment, but impeachment aggravated his personal unpopularity and he was assassinated. Danby was driven from office and imprisoned during the impeachment wrangling and effectively banished from public life during the reign of Charles II. In each case, the policies these men promoted on behalf of their royal masters were also impeded.
In 1715, the Earl of Strafford was impeached for giving Queen Anne “pernicious advice” about the Treaty of Utrecht. He was never tried but fell from power. His impeachment—along with that of the Earl of Oxford and Viscount Bolingbroke—signaled a decisive repudiation of pro-Catholic foreign policy and extinguished any hope of restoration of a Catholic English monarchy.
In 1787, when the Framers were gathered in Philadelphia to draft the Constitution, Parliament had just commenced the impeachment of Warren Hastings, governor-general of Bengal. Hastings’ impeachment was specifically mentioned in the exchange between George Mason and James Madison that gave us the phrase “high crimes and misdemeanors.” The trial dragged on for seven years and ended in acquittal, but the proceeding both destroyed Hastings and markedly altered the way England viewed governance of its overseas territories.
On this side of the Atlantic, impeachment was sometimes used by American colonists to protest royal policies. For example, in 1774, the Massachusetts House of Representatives impeached Chief Judge Peter Oliver for the “high crime and misdemeanor” of accepting a salary paid by the British monarchy under an act of Parliament. This seems bizarre to us, but to the colonists, the effort to pay colonial judges from the royal exchequer was an attempt to wrest control of the judiciary away from local authorities and make American judges accountable only to the faraway king.
Oliver was never tried because Colonial Gov. Thomas Hutchinson dissolved the upper chamber of the Legislature to prevent a trial. Nonetheless, Oliver became the hated embodiment of the danger of judicial servility to the monarchy. Faced with his example, no other Massachusetts judge dared to accept the king’s salary.
And although Oliver’s impeachment produced no conviction, the case assumed such importance in American minds that it made its way into the list of grievances against the king laid out in the Declaration of Independence. The king, wrote Thomas Jefferson:
… has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
After the newly independent United States adopted impeachment as part of its Constitution, the House of Representatives impeached Supreme Court Justice Samuel Chase in 1804, largely for judicial intemperance and displaying partisan bias in the exercise of his judicial duties. The effort to remove him was said to be part of an attempt by President Thomas Jefferson to purge the federal bench of judges aligned with his political opponents, the Federalists. Chase’s acquittal is often cited as authority for the proposition that judges should not be impeached for their political leanings. But it had another effect, which was to admonish federal judges to stay out of partisan politics when on the bench, which they have for the most part done ever since.
Finally, the failed impeachment of President Andrew Johnson in 1868 is cited by some as both a misuse of the impeachment power and an example of the futility of impeaching a president in the House, but failing to convict him in the Senate. I disagree on both points.
Johnson plainly deserved to be impeached. He was wrong about the most important constitutional questions posed by the aftermath of the Civil War—whether to readmit the rebel states of the defeated Confederacy to full political participation in national government without thorough reform of their politics and social structure, and whether to confer on black people the rights of citizenship that the abolition of slavery necessarily implied. Johnson wanted a version of “Reconstruction” that restored the white supremacist oligarchy of the Old South to power locally and influence nationally. And he wanted to consign freedmen to a sort of permanent peonage.
The Republican-dominated Congress wanted thorough Southern reformation and far more rights for black Americans. Johnson opposed them at every turn, vetoing virtually every congressional reconstruction bill and opposing ratification of the 14th Amendment. His effort to, in effect, pretend that the Civil War never happened was the true ground on which Republicans sought his removal, even though the articles of impeachment focused on the technicality of his violating the Tenure of Office Act by firing Secretary of War Edwin Stanton.
Although Johnson escaped Senate conviction by one vote, the impeachment proceedings forced Johnson to make concessions to Congress on reconstruction. Impeachment also eviscerated his effort to secure election to the presidency in 1868. One can fairly debate whether, in the long run, the goal of meaningful Reconstruction was helped or hurt by Johnson’s impeachment. But in the short term, it made crystal clear that congressional Republicans, not the president or recalcitrant southerners, would define the postwar political order.
Against all these cases stands the supposed cautionary tale of Bill Clinton’s acquittal. It is unquestionably true that the rush to impeach Clinton over his reprehensible personal conduct and obfuscatory perjuries imposed a short-term political cost on Republicans. But the lesson of that sad episode is not that any failure to convict a president is necessarily a political disaster for his or her opponents. Rather, the lesson is that the public will punish a party that tries to remove a president on transparently trivial grounds.
To draw from Clinton’s travails the lesson that no impeachment inquiry should be attempted without a guarantee of success in the Senate is to insulate even the most egregious presidential wrongdoing from serious scrutiny, still less serious consequences, so long as he can coerce the loyalty of a craven majority of senators of his own party. To take that line not only abandons a primary constitutional defense against executive tyranny but concedes that a politically dispositive fraction of the American public is so tribalized as to be unpersuadable.
I don’t think that is the lesson of American history, at least so far. Richard Nixon resigned because congressional hearings, including a formal impeachment inquiry, convinced an initially resistant American public and their congressional representatives that he committed constitutionally consequential misdeeds. Democrat Bill Clinton was acquitted because his impeachment inquiry disclosed tawdry and dishonorable, but constitutionally inconsequential, misbehavior. In the next presidential election, Republican George W. Bush, though confronted with Clinton’s strong economic legacy, ran on restoring “honor and dignity” to the White House … and won.
Ultimately, it’s not political naïveté to believe that a voting majority of Americans can be educated to recognize the threat to constitutional governance President Donald Trump presents.
Moreover, while it is imperative that Trump be beaten, it is only slightly less important that he be beaten on proper grounds. Not merely by promising better health care, or a more rational and humane immigration system, or a moderately improved system of allocating the vast wealth generated by robust capitalism. The constitutional health of the country requires that he lose, in significant part, because a voting majority of the American people understands that, unless repudiated, Trump and Trumpism will destroy the Constitution. Democrats can’t do this if they don’t at least try to make the case, and history suggests that the risks of such an effort are lower than they seem to fear.
Arpaio, canada, Conrad Black, Constitutional, conviction, D'Souza, donald trump, fraud, impeach, Impeachment, Mikaela Colby, Obstruction of Justice, pardon, pardon power, Paul F. Eckstein, president, trump
President Trump has pardoned Conrad Black of convictions for fraud and obstruction of justice from 2007. Black is a friend of Trump’s and a vocal supporter; he published a book entitled ‘Donald J. Trump: A President Like No Other’ last year. Black spent 3 years in prison as a result of his conviction and was banned from the United States for 30 years. This is the latest in a series of politically questionable pardons; readers will recall the Arpaio and D’Souza pardons. But the questions remains: when does a non-kosher pardon become an abuse of pardon power?
Paul F. Eckstein and Mikaela Colby tackle this question in their article entitled ‘Presidential Pardon Power: Are There Limits and, if Not, Should There Be?‘ published in the Arizona Law Journal. In that article the authors examine the history of the pardon power, its constitutional limits, and what remedies may exist for its abuse. They ultimately conclude that new limitations need to be introduced.
Darren Calabrese / THE CANADIAN PRESS
By Frank Bowman
There’s a good deal of talk about whether Mr. Trump is purposely trying to goad Democrats into a formal impeachment investigation, on the theory that doing so poses little risk of ultimate conviction in the Republican-dominated Senate and is politically advantageous insofar as it enables him to paint himself as a victim and simultaneously divert attention from his substantive policy failures.
I had a talk with Greg Walters of Vice News on this subject, and he was kind enough to include a quote or two in his story on the subject, link here.
I have two basic reactions to this hypothesis, one constitutional and the other political.
On the constitutional score, it is hard to see how Congress (by which, in practice, we mean the House of Representatives) can avoid serious consideration of impeachment if the Trump Administration persists in its current blanket denial of cooperation with all requests for information from the House, regardless of subject, regardless of the originating committee, and regardless of whether the House merely asks politely or serves a subpoena. This posture of total resistance is without historical precedent. All presidents wrangle with Congress over information disclosure, but none has ever simply refused all cooperation. Trump’s current absolutist position, if left unchallenged, would establish a precedent essentially neutering congressional oversight and, in consequence, badly fracturing constitutional order. A presidency and an executive branch immune to question is an executive dictatorship in all but name.
The constitutional challenge presented by Trump’s maximalist intransigence leads toward impeachment in two ways.
First, the longer Trump persists in stonewalling all congressional requests, the more ominous — and obvious — the threat to basic separation of powers principles becomes. Thus, a total refusal of cooperation with congressional investigative authority can itself become impeachable conduct. At a certain point, although we may not yet be there, a formal impeachment inquiry becomes (or should become) an imperative for any Member of Congress committed to maintaining both the prerogatives of his or her own branch and a constitutional order centered on an independent and powerful legislature.
Second, as I wrote in Slate not long ago, congressional investigative power is at its strongest when that power is expressly asserted in aid of the impeachment power. Investigative authority in aid of Congress’s general oversight power is derivative of legislative power and is therefore conditional on legitimate legislative objectives. By contrast, the power to impeach is expressly and exclusively granted to Congress and necessarily implies the power to ascertain, from whatever source, the facts necessary to judge whether impeachable conduct has occurred. Both logic and the precedent of the Nixon era compel the conclusion that not even classified matters or the most intimate details of presidential consultation with his advisers are immune from disclosure in an impeachment inquiry. Thus, Congress strengthens its legal case for judicial compulsion of testimony and material withheld by the executive the moment it announces an impeachment investigation. A blanket presidential refusal to comply with all informational requests premised on oversight power almost compels Congress to invoke its impeachment authority.
The agonizingly tricky bit for constitutional patriots who also happen to be Democrats is that Trump may be right if he calculates that an impeachment contest is a political winner. The uncomfortable fact is that the general populace neither knows nor cares very much about constitutional balance. The electorate may even reward Trump in 2020 for being “tough” against a congress that nobody is very fond of.
And public disdain for and disinterest in an impeachment fight is likely to be particularly acute if Russia and the Mueller Report remain the focus of the contest. The Mueller Report did “exonerate” Trump on Russia to the extent that it found insufficient evidence of pre-election conspiracy. The public knows this and no careful explanation of why Trump’s behavior vis-a-vis Russia in 2016 remains profoundly troubling is going to dislodge that impression among either Trump supporters or the bulk of casual followers of political news.
As for the obstruction portion of Mueller’s report, it paints a shocking picture of presidential misconduct. Nonetheless, Mueller’s decision to end his report with a no-call, Barr’s choice to make his own call exonerating the president, and the resulting narrative that this was, at worst, a president blocking an investigation into what proved to be a non-crime are likely to deprive a long impeachment fight focused on obstruction of justice of much of its public bite. Just as the general public doesn’t know or care much about the constitutional niceties of checks and balances, it tends not to know or care very much about abstractions like prosecutorial independence, the rule of law, unitary executive theories of presidential power, and so forth.
Accordingly, if Democrats, whether for reasons of constitutional principle or partisan politics, feel compelled to proceed with a formal impeachment investigation, they would do well to broaden its scope beyond Mueller. Only if matters like emoluments violations, misuse of office or influence for private gain by the Trump family, connections with Russia not directly involving the 2016 election, destruction of the nation’s foreign policy and alliance structures, and pervasive dishonesty are added to the mix does an impeachment battle seem likely to prove politically advantageous.
By Frank Bowman
Yesterday, I had the pleasure of talking with Alberto Luperon of Law & Crime Network about whether the Trump Administration would be likely to succeed if it tried to stop special counsel Robert Mueller from testifying to Congress. His article about that conversation appears here.
By Frank Bowman
Today I write on Slate about the dual objectives of Attorney General William Barr’s statements about the Mueller report. The link is here.
By Frank Bowman
This weekend brought a subtle, but important, bit of good news for those interested in effective congressional investigations of the Trump administration.
Attorney General Bill Barr is threatening to refuse the request of the House Judiciary Committee that he testify later this week. Reportedly, Barr is balking because the Committee will deviate from the pattern of recent congressional hearings in which members do all the questioning and every member gets a paltry 3-5 minutes to ask questions of the witness, with no opportunity for follow-up. Instead, House Judiciary Chair Jerrold Nadler is delegating some of the questioning to committee lawyers who will have 30 minutes to pursue lines of questioning to their logical conclusions. There may also be a private session about any classified materials in the Mueller report.
The “get every Member on camera for 5-minutes” mode of proceeding has long had those of us who are trial lawyers tearing our hair and screaming at our TV sets (or computer screens). It is guaranteed to be ineffectual for three reasons: First, cross-examination, particularly of reluctant or hostile witnesses, is the single most difficult trial skill. To do it well takes training and years of practice. Perishingly few members of either the House or Senate have the professional background to have mastered it. For most of those few, the experience was years in the past and they’ve lost their edge.
Second, the best cross-examiner in the world can do little if confined to an arbitrary 5-minute limit. Thus, even the rare talented congressional interrogator can be filibustered for five minutes by any reasonably self-possessed witness.
Third, sequential questioning by members could be made fractionally more effective if all the members (or at least all the members of one party) carefully coordinated the topics and lines of questioning to be pursued. But there is little indication that this is ever done, and it would require a degree of diligence, focus, and cooperative spirit improbable in a group comprised of office-seekers eager to get individual, and distinctive, facetime.
If you want an eye-opening contrast to the aimlessness and patent grandstanding of most modern congressional hearings, go watch the proceedings of the Senate and House committees investigating Nixon and Watergate. Three key differences jump out: first, the committee’s professional counsel did much of the questioning; second, they were unconstrained by artificial time limits; and third, the senators and congressmen of both parties were prepared for their turns at questioning and were obviously interested in learning the truth. Moreover, in order to promote candor and avoid concerns about unfairly besmirching reputations, a number of the key hearings were held in private.
The result was that, in Watergate, both the Senate and House hearings were genuine factual inquiries in which witnesses were compelled to answer questions comprehensively and explain inconsistencies in their stories. Both sets of hearings maintained coherent narratives and exposed important facts that would not otherwise have come to light.
It is extraordinarily heartening to see that Chairman Nadler seems to have learned a lesson from history. Mr. Barr’s anguished cries at the prospect of a modest move back toward earlier and more productive modes of procedure should be seen as what they are — the vain protestations of a lawyer who knows the power of competent cross-examination and desperately wants to avoid having it directed at him.
That said, Nadler’s proposal is only a modest step in the right direction. The staff questioning will still be broken up into 5-minute alternating chunks between majority and minority counsel, which is sadly reminiscent of the clumsy experiment by the Senate Judiciary Committee’s Republican majority in the Kavanaugh Supreme Court confirmation hearings.
Chairman Nadler should do two things. He should stick to his guns in this confrontation with Barr. And in future, he should move even more firmly in the direction of procedural rules that, in living memory, facilitated the discovery of truth. Committees of both the House and Senate who want facts should follow and build on his example.
Today Professor Bowman was a guest, with Heritage Foundation representative Hans van Spakovsky, on the podcast “Lawyer 2 Lawyer.” The topic was the Mueller Report and its implications for impeachment. Link here.
Adam Liptak, the distinguished Supreme Court reporter for the New York Times, has an article out today discussing whether, as a matter of historical precedent, obstruction of legal processes can be an impeachable offense. He is kind enough to quote Professor Bowman extensively. The link is here.