Why is Trump’s interaction with Ukraine so bad?


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By Frank Bowman

My new friend (and landlord when in D.C.), Shikha Dalmia, of the Reason Foundation and columnist for “The Week,” asked me to explain why it should matter constitutionally that Mr. Trump may have used his powers over domestic law enforcement, military affairs, and foreign diplomacy to obtain negative information on Vice President Biden and his son. This was my best effort at a response:

The essence of impeachable abuse of power is using a power legitimately granted by presidential office for an illegitimate purpose.  The most common illegitimate purpose is using official authority to promote one’s private interests. 

In authoritarian states like Putin’s Russia, it may be seen as normal for a leader to use state power to ensure his continuation in office. In this country, we consider a president’s interest in getting re-elected to be a private, rather than a public interest. Therefore, although we understand that presidents, and all elected officials, will have an eye on public reaction and thus their political prospects when they exercise the powers of office, it remains profoundly improper – un-American I might even say – for a president to leverage his official power to disadvantage political opponents.          

This is particularly so in the case of investigations of supposed criminal wrongdoing.  One of the hallmarks of what we Americans loftily call “banana republics” is the tendency of each incoming administration to bring criminal charges against leaders of the outgoing administration.  Leaving aside the fact that such charges are often (pardon the term) trumped up, the danger is that the stakes of losing become too high. That is, good people won’t enter political life because the risks are too great.  Those who do shortly realize that the price of losing an election could be financial ruin or even prison.  Thus, they are tempted to go to any extreme to win, and so avoid the awful results of losing.

When we talk proudly about our uninterrupted history of peaceful transfer of power, we are referring not only to the absence of military coups or violence in the streets, but to the fact that public officers lose elections and go quietly back to private life, unmolested by the organs of the state.           Trump’s misuse of power here is dreadful for two reasons:    

First, he is trying to drag us into the abyss of political investigations and prosecutions that could destroy the essential, and widely admired, character of our politics.  Second, the threat he employed to pursue dirt on VP Biden and son was to withdraw American support from a vulnerable country on the edge of an expansionist Russia. Doing so is not only immoral, but subverts the 70-year bipartisan consensus that peace and stability in Europe requires containing any expansionist tendency of the Russians.

These are matters of the utmost seriousness. No American of either party can afford to dismiss them.          

An illustrative hypothetical…


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By Frank Bowman

This semester, I have the pleasure of teaching a seminar titled “Impeachment & the American Constitutional Balance” one day per week at Georgetown. I have a group of first-rate students who will be writing about a variety of impeachment-related topics throughout the semester. Sometimes, I’ll post their work here.

In yesterday’s class we talked about the historical definition of “high crimes and misdemeanors” and then turned to the week’s revelations about Mr. Trump’s contacts with Ukraine.

Max Lesser posed the following hypothetical, which readers may find thought-provoking:

It’s 2012 and President Obama is running against Mitt Romney. Obama has just “lost” the first presidential debate, and his re-election campaign looks to be in trouble. Obama has noticed his attacks on Mitt Romney having off-shore bank accounts in the Cayman Islands seems to be having an effect, however, and a plan is hatched.

The Cayman Islands have just been hit by a hurricane and are desperate for aid and relief. President Obama unilaterally directs his Chief of Staff to freeze $400 million in aid to the Cayman Islands. President Obama calls the Prime Minister of the Cayman Islands, who immediately requests the aid they desperately need and have historically received. Obama tells him the U.S. has been very good to the Cayman Islands in the past, better than any other country. The relationship hasn’t been, reciprocal, however, and the President needs a “favor.” He says the Prime Minister should look into the Romneys’ holdings in the Cayman Islands, especially his son Tagg, who appears to be cashing in on his father’s name. This is because President Obama is concerned about “corruption.” Nothing to do with re-election. 

Obama tells the Cayman Islands PM to coordinate with his Attorney General Eric Holder and his non-government employee private attorney, Michael Avenatti, who has been the main point of contact this far. He says they will be in touch. The Cayman Islands PM realizes he will have little choice but to bend to these demands.

Obama administration staff, realizing the transcript of this call is likely criminal and at a minimum extremely problematic, violates protocol to store the conversation in safes meant for critical national security interests. A whistleblower comes forward to expose these actions, and the administration releases a transcript of the call that confirms the allegations. 

A day later President Obama implies the whistleblower is a “spy” who should be treated the way we did in the “old days.” I.E. He appears to be obviously implying the death penalty. 

How do you think the Republican House of Representatives will respond? 

If Trump’s Ukraine contacts aren’t impeachable, nothing is


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By Frank Bowman

Today, on CNN.com, I expanded on my conclusion of two days ago that Mr. Trump should indeed be impeached. You can read my comments at this link — https://www.cnn.com/2019/09/25/opinions/trump-ukraine-call-if-this-isnt-impeachable-nothing-is-bowman/index.html

I’ve also inserted the text of the piece below:

(CNN)The White House released a rough transcript Wednesday of a July phone call between President Trump and Ukrainian President Volodymyr Zelensky, indicating that the President pressured a foreign leader to gather dirt on a political opponent.

As a result, we now have facts quite distinct from any that have come out about this President before — and the strongest, or at least most easily explainable, case for impeachment to date.

The allegations at the heart of special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election concerned Trump’s conduct while he was a candidate for office. There is good authority from the founding era that an effort to corrupt the electoral process ahead of an election might be impeachable. For example, at the 1787 Constitutional Convention, both George Mason and Gouverneur Morris observed that a president who “procured his appointment” by corrupting the electors must be impeachable.

But since impeachment is at its core about a president’s misuse of office or suitability to hold it, pre-inauguration conduct at least raises a tricky question. Whatever happened with the Russians during the 2016 election, Trump wasn’t then in a position to use the organs of the American state to encourage foreign interference.

Trump’s attempts to pressure Ukraine to investigate former Vice President Joe Biden, on the other hand, happened after Trump became President and had sworn an oath to faithfully execute his office and “preserve, protect, and defend the Constitution of the United States.”

With Russia, the most that can be said is that Trump expressed a willingness to receive political help from a hostile foreign power. Mueller could not prove there had been direct contact between the Trump campaign and Russian officials to coordinate that help. It remains troubling, if not impeachable, that the help was nonetheless delivered in the form of leaks and a social media misinformation campaign aimed at Trump’s opponent.

There are three key differences between the Russian and Ukrainian situations that should affect the impeachment debate.

One: This week, it has been revealed that Trump personally spoke with a foreign head of state and directly asked for a foreign government to probe for negative information about a possible presidential opponent. In other words, Trump’s call with President Zelensky may well constitute the very thing Trump denied throughout the Mueller investigation: “colluding” with a foreign power for personal electoral advantage.

Two: The fact that Ukraine is not a powerful traditional adversary, like Russia, makes the case worse in several ways. It means that Trump was not asking a geopolitical equal for help; he was demanding help from a weakened country situated on the border of an increasingly aggressive Russia; a country part of whose territory has already been illegally annexed by Russia, and whose continued survival as an independent nation depends on military, economic and diplomatic support from the United States and its European allies in NATO. How can the request of “a favor” from the American President to such a country be understood as anything but an extortionate demand?

Three: Ever since the British invented impeachment in the 1300s, abuse of official power for personal gain has been on the short list of undeniably impeachable offenses in Great Britain and the United States. The second article of impeachment approved by the House Judiciary Committee against President Richard Nixon charged him with abuse of power. Nixon misused his domestic authority as President to get dirt on his political foes, and then used the powers of the federal government to try to cover it up.

But Nixon’s conduct was penny-ante compared to Trump’s. Trump didn’t cover up a second-rate burglary by a group of inept “plumbers” looking for dirt on Democrats. Rather, he appears to have wielded the entire economic, military and moral authority of a great nation to, effectively, extort another democratically elected head of state.

Leaving aside the question of impeachment, this episode must count as one of the most discreditable things any American President has ever done. Prior Presidents have been cruel or mean-spirited, bigoted or shortsighted, and sometimes exercised terrible judgment. And every President makes decisions with at least one eye on the political consequences. But I know of no comparable case where a President baldly, consciously misused the power of the whole nation for his own purely private political benefit, without even a credible claim that it was in the national interest.

If what Trump did here isn’t impeachable, nothing is.

Impeach Donald Trump


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By Frank Bowman

I haven’t been blogging for a longish time. That’s partly been due to frantic scuttling about attending either to personal life or the opportunities to communicate through other media occasioned by the recent publication of my book. Part of the radio silence must also be put down to fatigue — simple inability to tabulate and maintain a suitable level of outrage at Mr. Trump’s endless assaults on constitutional propriety. At a certain point, the parade of offenses is so relentless that the man just wears you down.

But now I have to shake off my lethargy. We all do.

What Trump has now admitted about his contacts with the Ukrainian President is – by every textualist, originalist, historical, living constitutionalist, or commonsense standard – impeachable. Full stop. I’ll expand on that in later posts.

For today, I worry about two things, but come to one long-delayed conclusion.

First, Trump and his abettors in Congress, Fox News, and far-right echo chamber are already turning this into a story about supposed corruption of Vice President Biden and his son. To 30-40% of country, that will stick, regardless of the facts. See Benghazi.

Second, regardless of the facts, the law, and the applicable ethics-in-government rules, Hunter Biden’s choice to take a seat on the board of Ukrainian conglomerate Burisma Holdings looks bad. Legal or not, one would have to be blind not to suspect Hunter Biden’s major asset from Burisma’s point of view was his father’s position. Perhaps Joe couldn’t have stopped his boy from cashing in this way. Any father with a wayward son will understand the limits of that endeavor. But Hunter’s opportunism now unavoidably taints the Biden family as akin to the Clintons – congenitally unable to resist trading on their public position for money.

That’s desperately unfair to Vice President Biden. Whatever he is, he’s not a grifter. But fair or not, it means that both the looming impeachment battle and perhaps the 2020 election will be ugly mudfights comparing the real corruption of Trump & Co with supposed corruption of the Bidens.

It all makes me inexpressibly weary and sad. But I no longer think a real, to-the-knife, impeachment fight can be avoided. Trump has unapologetically admitted that he used the power of the presidency to secure help from a foreign power against a political rival. Constitutionally, he has shot someone in the middle of 5th Avenue. And he’s daring Congress and the rest of us to do something about it.

So, at last, I come to the point I have avoided for many months. Since starting this blog, I’ve contented myself with parsing the constitutional text and the historical evidence to distinguish between presidential behavior that could fairly and soberly be deemed impeachable and other behavior that, however distasteful, could not. But until today, I have never expressed an opinion about whether Congress should do what Mr. Trump’s misconduct has long given it the constitutional authority to do.

AS OF TODAY, here’s what I believe: If we love this country, we must take up the gauntlet Donald Trump has sneeringly thrown down. We must insist that the House stop its cautious minuet — one step forward, two back, and a hop step to the side — always hoping to be seen as doing something while never actually getting anywhere much at all.

We must insist that the House immediately hire the necessary staff to do a proper, comprehensive, speedy impeachment inquiry. We must demand that it move expeditiously to prepare and vote on articles of impeachment once that inquiry has winnowed the possible offenses down to those that are most serious and most readily provable to the public and at the bar of Senate.

We must insist that the Senate face its own reckoning. Mitch McConnell will no doubt attempt to shield Republicans from the unpleasantness of choosing between political expediency and their country’s honor and safety. But I think, in the end, he will not succeed. Both courage and principle are in short supply in the American Senate in these degenerate days. And conviction of Trump in the Senate remains vanishingly unlikely. But I do not believe McConnell can prevent at least a public vote. And I am no longer convinced, if I ever was, that forcing Republicans to choose is even bad politics.

In any case, there comes a time when nice calculations of political advantage simply cannot matter any more. This is such a time. If the House of Representatives will not at least try to use the tools the Constitution provided for the emergency of an ignorant, mendacious, bullying, demagogic, would-be autocrat, it abandons even the pretense of being a consequential participant in American republican government. If the House will not even risk labeling Trump’s brazen abuses of power as the constitutional high crimes they are, what future is there for representative democracy?

It falls to the rest of us to help our timorous leaders screw their courage to the sticking place. It falls to us to demand that now — at long, long last — Donald Trump must be impeached.

“High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump”

We are delighted to announce that Prof. Bowman’s book — High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge Univ Press 2019) — has been released and is available through Amazon, Barnes & Noble, Cambridge Univ Press itself, and other fine booksellers at an internet portal near you. (We hope to see it in some brick and mortar bookstores, as well.)

If the House impeached, would the Senate have to conduct a trial? If so, what would it look like?


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By Frank Bowman

Over at Balkinization, David Super addresses the question of whether, even if the House were to impeach Mr. Trump, the Senate would be obliged to conduct a trial on the articles of impeachment transmitted by the representative of the House, the “managers.” This is a question I discussed with my friends, law professor and Atlantic journalist, Garrett Epps, and constitutional scholar extraordinaire, Michael Gerhardt, a week or two back. Some insights I gained from that conversation follow:

I am largely in agreement with David Super’s conclusion that Mitch McConnell could probably find plausible excuses not to commence a trial, if that outcome suited his political ends. Still, I would add a few more wrinkles.

First, I think that the Constitution’s provisions on impeachment certainly imply a duty by the Senate to address articles of impeachment approved and conveyed to it by the House. However, the Constitution nowhere says this expressly. Moreover, it’s as certain as anything can be that a refusal to act by the Senate could not be appealed by the House to the courts. Thus, action by the Senate is simply a normative expectation, and as we learn daily in the age of Trump, norms carry ever smaller weight.

Second, as Prof. Super observes, there are Senate rules about how impeachments are to be handled, but these don’t settle the question of whether a trial must follow impeachment. My analysis tracks his, but adds a couple of additional points:

  1. The Senate rules say that, once the articles are presented by the house to the senate, “then the Presiding Officer of the Senate shall inform the managers that the Senate will take proper order on the subject of the impeachment”?   But what does “proper order” mean in this context?  If it means only that the Senate will take such notice of the House’s action as it deems appropriate, or is required under its rules, then this notice to the House means no more than, “OK, House, we got this.  We’ll let you know when and if we want to go further.”
  2. The rule says that the Senate must, the day after it receives the articles, “proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.”  But I agree with David that, parsed carefully, this rule seems to draw a distinction between “consideration of such articles” and an actual trial.  For example, it seems quite clear that the rule does NOT mean that a trial must start the day after the articles are transmitted, only that the Senate must “consider” the transmitted articles in some sense.  Ordinarily, this would mean setting the rules and timing for an impeachment trial.  But an aggressive majority leader might conclude that “consideration” extends no further than, for example, an immediate vote without evidence, or more likely, a motion to table.  As to the latter, one would have to read other parts of the Senate rules to know whether tabling articles of impeachment would be possible. 
  3. In any case, as Michael Gerhardt reminded us, even if the Constitution and Senate rules are read to demand some official Senate resolution of articles of impeachment, the proceeding that produces the resolution might not be anything like what we would ordinarily view as a “trial.” Options might include an immediate vote on the articles by the Senate without a formal presentation of evidence or a truncated evidentiary presentation to a committee (which has been the norm for judicial impeachments for some years). The Senate, in his view, has considerable discretion in fashioning its method of addressing House-approved articles.
  4. Finally, the existing rules seemingly could be amended if the Republicans wanted to do that. At first, I thought that wouldn’t be possible because the Senate rules for impeachments are (I believe) “standing rules,” and the Senate rules seem to say that a motion to amend standing rules requires a 67 vote majority. https://fas.org/sgp/crs/misc/IN10875.pdf.  But the same rules were in effect when McConnell killed the filibuster for Sup Ct justices and the Republicans had only a 55-45 majority.  They got around that by having Orin Hatch in the chair declare that the motion to change the rules was in order regardless of the absence of 67 votes for a rules change or even 60 votes for ordinary cloture. https://www.nbcnews.com/politics/congress/senate-democrats-block-neil-gorsuch-s-supreme-court-nomination-n743326 

In sum, if McConnell wants to block or fast-track or trivialize the Senate’s response to House impeachment action, he probably can.

Mueller’s testimony and the fight for truth


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By Frank Bowman

After my last post here, I developed some additional thoughts for Slate on the Mueller testimony, particularly the invariable pattern where the Democrats asked Mueller about the facts he found, while Republicans, to the last man and woman, asked nothing about facts and instead simply attacked the motives of the investigators.

The Slate article is here.

Preliminary thoughts on Mueller’s Judiciary Committee testimony


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By Frank Bowman

I may have more to say later, but Robert Mueller’s testimony this morning before the House Judiciary Committee generated a couple of off-the-cuff reactions.

First reactions

An hour or so in, I’d say this is going about as I expected. Mueller is rigidly insisting on not going one inch beyond the report. The Republicans are avoiding talking about what’s in the report, focusing instead on conspiracy theories about the origins of the investigation. 

Two modest surprises for me:

1) Mueller himself is more halting and less commanding than I might have expected. Part of this, I think, is that he is so committed to sticking with the report that he’s not focusing on the substance of the questions and answering them on their merits — as would be true for ordinary witnesses or for Mueller himself in any other situation. Instead, he is measuring every question by only two metrics: first, can I answer simply by referring to the report, and second, can I decline to answer at all on the ground that the question asks about internal special counsel or DOJ deliberations. That’s an artificial and unnatural way of thinking about questions, and it makes him seem indecisive.

(I should say in passing that, on many points where Mueller refused to answer, it’s not at all clear that he had any legal right or privilege to do so. It’s hard to imagine any other witness being given this degree of deference on what questions he will or won’t answer. But neither party elected to spend the time or energy to press him. Hence, the Committee, and the rest of us, got no more or less than Mueller wanted to talk about.)

2) Although the media may not score the Democrats very well on their performance today, so far the Democratic members have displayed a pleasantly surprising degree of discipline in walking Mueller succinctly through the major factual components of the obstruction case against Trump. In another era – the era of Watergate for example – the facts they are highlighting would be devastating to a president. But because the facts are detailed and because the attitude of the committee Republicans is that there’s nothing to see here (an attitude that will be reinforced by Fox and other pro-Trump media), these crushingly incriminating facts are unlikely to perceived as such by anyone not already convinced going into the hearing.

Republicans attack Mueller’s team and with it, the Dept of Justice

Towards the end of the hearing Republican Cong. Armstrong raised questions about the apparent political affiliations of Mueller’s team — i.e., 14 of them seem to have donated to democratic political candidates — in an effort to argue that Mueller’s investigation was fatally biased.  

Although this sounds like a plausible line of inquiry, it totally distorts the basic ethos of federal prosecutors, which is that DOJ does not inquire about prosecutors’ political affiliations.  It judges them on their body of work, and it presumes, in the absence of affirmative contrary evidence, that regardless of political leaning or affiliation, prosecutors will pursue the facts and the law wherever they may lead.  DOJ has a long history of impartiality that supports this operating assumption.

The Repub line of attack here implies an absurd rule going forward — that only Republicans or unaffiliated independents can investigate Republicans, and only Democrats or unaffiliated independents can investigate Democrats. Adoption of such a rule, or operational guideline, would shake the foundation of the Department’s professional code and internal esprit.

More importantly, the Republicans are actively contributing to the public’s already-growing distrust of government and the impartiality of justice itself.  There is, in fact, no evidence that Mueller and his team shaded their efforts or their report against Trump & Co.  To the contrary, they treated him with kid gloves relative to regular defendants. And in his report, Mueller bent himself into linguistic pretzels to avoid saying what the evidence proved – namely that Trump obstructed justice.  By attacking Mueller (a lifelong Republican) and his team this way, the Republicans are actively eroding the confidence of the American public in their government — indeed in the very possibility of impartial administration of the law.  Republican members may think this is to their advantage in the short term, but it’s corrosive, and we will all live to regret their short-sighted selfishness. 

That said, I confess to thinking Mueller notably inept in his defense of his own people and of the traditions of the Justice Department.  This line of questioning was easily foreseeable, and Mueller should have had a devastating response ready.  That he didn’t suggests two things about him: First, he is still, stubbornly, living in the world he (and I) grew up in, one in which the honor, probity, and professional competence of long-serving federal law enforcement officers was accepted by both political parties.  Second, he’s gotten old. He simply can’t respond quickly, either with spontaneous argument or even with pre-prepared speeches

“High Crimes & Misdemeanors” on CNN


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CNN’s fine reporter Zachary Wolf has published a conversation with Prof. Bowman about his new book, “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump” (Cambridge U Press 2019). You can read the conversation here — and it’s reproduced below:

Washington (CNN) As Democrats try to square growing calls for impeachment proceedings against President Donald Trump with hesitation from party leadership — and the political reality of a Republican-controlled Senate — it’s worth understanding what’s behind the concept of impeachment and why it should or shouldn’t apply to Trump.Luckily, Frank Bowman III, a law professor at the University of Missouri, is out with the definitive history of impeachment in his new book, “High Crimes and Misdemeanors; A History of Impeachment for the Age Of Trump.”We asked him in the lightly edited conversation below what something meant to curb the power of kings of England has to do with the current President of the United States.

Where does impeachment come from?

CNN: I found it really interesting the way you tied the idea of impeachment back to the Magna Carta and how lords used it almost as a form of protection against the king. Is there anything left from that original meaning in the way it is applied today?

BOWMAN: For centuries, the kings and queens of England were the dictators of their age, with the added advantage that they could claim a divine right to rule. They sought close-to-absolute power when they could. The other power centers in the society — hereditary aristocrats (lords), landowners, clergy, merchants, lawyers, judges and others — clustered in Parliament and fought for the idea that the king ruled under the law with an obligation to serve the whole kingdom, not merely his personal interests.Parliament couldn’t use impeachment to depose the king himself, but they did use it to bring  down ministers of the king who promoted absolute royal power and denied the authority of Parliament and the laws. They charged such ministers with subverting the “ancient and well established form of government” of the kingdom and introducing tyranny.

Under our Constitution, impeachment extends all the way to the person who heads the executive branch, the president. And the basic theory of the most important old English impeachments is built into our Constitution. We can impeach a president when his conduct subverts our form of government — the rules and norms that make up our constitutional order — and threatens tyrannical government by the chief executive without regard to the legislature or the law. I’d argue that’s exactly the situation we now face.

Is there a precedent for impeaching Trump?

CNN: You profile, in great detail, the impeachments of Andrew Johnson and Bill Clinton and the near-impeachment of Richard Nixon. Which of those bears the most resemblance to the possible effort by Democrats against Trump?

BOWMAN: Nixon is the closest in terms of the offenses he committed. Nixon’s troubles began  with illegal efforts to gather information against his Democratic opposition in the 1972 election, but mushroomed when he tried through lies, dangling pardons, bribery, attempting to enlist the CIA and FBI in a cover-up, firing special prosecutor ArchibaldCox, suborning perjury, specious claims of executive privilege, etc., to obstruct the investigation. He put the cherry on top by defying legitimate subpoenas from the House Judiciary Committee. The parallels to Trump’s conduct in relation to the Russia investigation and other inquiries are not exact on every point, but they are very close.A possible, and frightening, difference between Nixon and Trump is that Nixon, in the end, was a man of the law in the sense that, while he committed offenses and tried to evade responsibility for them, he nonetheless believed in the constitutional structure of the US and that its laws applied to him. So when push came to shove and he was ordered to produce incriminating material, he did. I am quite sure that Trump neither understands nor believes in the American constitutional system. And I am not sure that Trump believes that he is bound by the law.

Johnson’s case is quite different than Trump’s on its facts and historical context. It was a fundamental dispute between Johnson and the majority in Congress over the proper approach  to post-Civil War Reconstruction and the role of black freedmen in American life. Johnson was ready to re-empower the unapologetic leadership class of the defeated South and consign black people to the status of permanent peons. The Republicans in Congress wanted a wholesale restructuring of Southern society, including rights for freed black people. The impeachment fight was between two fairly well-articulated and clashing theories about what America should become.One can try to superimpose some coherent idea of America on Trump’s flailings, but in the end, the problem with Trump is not that he is trying to move the country toward some unpleasant, but coherent, vision of the future but that he is destroying the constitutional order to gratify his own ego and pursue personal wealth and power. In that respect, the fight between congressional Democrats and Trump is similar to some clashes between Parliament and the English crown.

Still, Johnson’s impeachment may have at least one lesson for us: The House impeached Johnson, but he escaped conviction and removal by one vote in the Senate. As a result, the effort to impeach him is often called a failure and a misuse of the impeachment power. I disagree. Johnson should have been impeached and convicted because his vision of America’s future was fundamentally wrong AND he would not accept the contrary judgment of Congress. Though he was not removed, the impeachment did cripple him politically and force him to back off some of his most intransigent positions on Reconstruction. The lesson, to which I’ll return  below, is that impeachment without removal can sometimes be valuable.

What’s are the limits of high crimes and misdemeanors?

CNN: You detail many possible high crimes and misdemeanors, including obstruction of justice, abuse of the pardon power, lying and greed. Can Democrats essentially say anything they don’t like is a high crime and/or misdemeanor?

Bowman: Yes … and no. From a purely procedural point of view, Gerald Ford was right when he famously said (during the course of an unsuccessful attempt to impeach Justice William O.Douglas) that an impeachable offense is whatever a majority of the House and 2/3 of the Senate say it is. That’s because (despite what Mr. Trump seems to think) congressional decisions on what does or does not constitute impeachable conduct are not “justiciable” — that is, they are not reviewable by the courts. (I know Alan Dershowitz has said the contrary, or something like it, but he’s dead wrong and, as usual, just trying desperately to keep his name in the media.)

That said, there are some generally accepted historical parameters for what does and doesn’t qualify as impeachable. Classically, they must be “great” offenses, that is, they need not be crimes, but must be serious offenses against the law or constitutional order. Generally, they involve misuses of the president’s office, though most experts concede that really serious private misconduct would count. For example, Mr. Trump’s famous boast notwithstanding, a president who committed a private murder is surely impeachable. President Clinton avoided conviction in the Senate for a variety of reasons, but among them was surely the conclusion by many senators that his misconduct, though disgraceful and criminal, was private, pretty inconsequential and unrelated to his presidential role.

I could go on, but the basic point is that a set of generally shared understandings about the kinds of conduct that should be impeachable has tended to place outside limits on what Congress is willing to seriously consider when contemplating impeachment. We’re talking about historical norms, not enforceable law. Of course, as we are reminded daily in the current administration, norms are flimsy things once those in power decide to ignore them.

Is impeachment possible with a Republican Senate?

CNN: Some Democrats want to impeach Trump but it seems extremely unlikely they could remove him from office with a Republican-led Senate. Does that essentially move impeachment off the table?

BOWMAN: I don’t think so. I respect Speaker Nancy Pelosi’s apparent view that impeachment would be politically disadvantageous for Democrats. However, Trump’s assault on American constitutional structures and values is so profound and so dangerous that I think it requires a response. If that response cannot remove him from office, it can at the least explain to the American people the facts about his conduct and, or even more importantly, why what he is doing is so wrong, so contrary to our constitutional history and so dangerous for our future. A properly conducted impeachment inquiry is the tool the Constitution gives Congress to perform this task.

Impeachment is a power granted the House by the express language of the Constitution. Therefore, in an impeachment inquiry, Congress’ power to demand information from the president is at its highest — far greater than the more general oversight powers of Congress to inquire into executive branch operations for other legislative purposes. Moreover, an impeachment inquiry — and the hearings that would be part of it — could command public  attention more than anything else Congress might do. Let’s be honest. It may be that nothing can cut through the endless stream of broadcast and social media chatter and focus the country on what Trump has done and why it is constitutionally unacceptable. But the best shot at that is probably impeachment.

Moreover, the lesson of history is that impeachments can succeed in the political sense even when they do not remove the offending official. British history is full of examples of officials who were impeached by the House of Commons and not convicted by the House of Lords but who were nonetheless politically destroyed. Likewise, just before the American Revolution, the Massachusetts Colonial Legislature impeached Chief Judge Peter Oliver for the sin of accepting a salary from the crown. Oliver was not convicted, because the royal governor dissolved the Legislature before he could be tried in the upper chamber (previewing, perhaps, the approach of Sen. Mitch McConnell). But he was forced from office nonetheless by public outcry, and the principle that American judges should be accountable to American legislatures, not the faraway royal government, was established in patriot minds.

I gave the example of President Andrew Johnson above. He was not removed, but he was  politically crippled and his approach to Reconstruction wounded, if (sadly) not killed.

What should Democrats do?

CNN: As the person who has spent more time studying impeachment than maybe anyone else in the country, what would be your advice to Democrats considering doing it now?

BOWMAN: I won’t presume to tell Congress what it should do. I’ll just say to the Democrats that if you are going to do it, don’t do it as a noble, but futile, gesture. If you’re going to do it, (a) use its power as a means to extract information about presidential misconduct that you can’t otherwise get, and (b) structure it to educate persuadable, but underinformed, citizens about Trump’s conduct and why it endangers the health of the American republic.

What should everyone remember about impeachment?

CNN: What’s the one thing you think every American should keep in the back of their head about impeachment?

BOWMAN: Impeachment is the Constitution’s defense against a president who, by conscious design or because of defects in his character, threatens republican government. The framers made impeachment hard because they didn’t want Congress throwing out presidents in partisan hissy fits. Still, the framers meant it to be used if, somehow, a manifestly unfit person were to become president and endanger the constitutional order they so carefully constructed. Donald Trump is the contingency for which they gave us the weapon of impeachment. The question is whether our politics is so broken that we lack the will even to pick it up.