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No, Professor Bowie (& Professor Dershowitz) impeachment does not require a chargeable crime

20 Monday Jan 2020

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By Frank Bowman

About a year ago, a bright young professor at Harvard Law, Nikolas Bowie, wrote an article claiming that the phrase “high crimes and misdemeanors” required proof of a crime. This opinion is so contrary to all the learning on the subject since the founding and before that I was moved to write a response, which you can find here. I figured back then that his heterodox view would resurface should Mr. Trump ever be impeached. It has, forming a part of Alan Dershowitz’s arguments on behalf of Trump.

Professor Bowie is wrong. I won’t repeat all the arguments establishing that point that I made a year ago on this site. You can find them here. However, inasmuch as his opinion may assume outsize importance over the next few weeks, some additional observations are called for, particularly in response to observations he has made today on Twitter defending his perspective.

As I previously observed, Professor Bowie simply ignores all the historical evidence from 1386 through the founding about the origins and meaning of the phrase “high crimes and misdemeanors.” That evidence demonstrates unequivocally that the phrase was a term of art employed virtually exclusively in impeachment and that it embraced a wide array of misconduct by government officials that was not criminal. Moreover, it is indisputable that the framers were aware of the phrase’s origins and that it included non-criminal conduct. For a full summary of the relevant history, see this summary I wrote for The Atlantic.

But for the present consider only two incidents.

First, when the Constitutional Convention convened in Philadelphia in the summer of 1787, the English-speaking world was riveted by the commencement of impeachment proceedings against Warren Hastings, governor general of Bengal. Few if any of the charges against Hastings were indictable crimes, but that was immaterial to Edmund Burke, the principal parliamentary prosecutor of Hastings. He said the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”

More critical than Burke’s view of Hastings’ alleged wrongdoing was the opinion of the American framers across the sea. When George Mason rose to object that “treason and bribery” only covered too little offensive conduct, he said:

“Why is the provision restrained to treason and bribery only? Treason, as defined in the Constitution, will not reach many great and dangerous offenses. Hastings is not guilty of treason. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachment.”

Mason then proposed that “maladministration” be added. When that was objected to, he suggested “high crimes and misdemeanors,” which was readily accepted.

Mason wanted an impeachment provision that would cover the kinds of offenses charged against Hastings, which were non-criminal abuses of official power. And there is every reason to believe that Mason (and Madison and the rest) believed “high crimes and misdemeanors” fit that bill.

As for whether the rest of the founding generation understood “high crimes and misdemeanors” to embrace non-criminal behavior, consider but one other case. In 1774, the Massachusetts colonial assembly impeached Chief Justice Peter Oliver for the sin against colonial autonomy of accepting the salary prescribed by Parliament for colonial judges instead of the stipend voted by the assembly. This was obviously no crime, yet the assembly described his conduct in the articles of impeachment as “certain high crimes and misdemeanors.” The Oliver case was a colonial cause celebre. It was a primary cause of the complaint against King George written into the Declaration of Independence that, “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.“

Critically, both the intimate facts of the Oliver case and the particular verbal description of his conduct were well known to many men who participated in drafting or ratifying the Constitution. Nathaniel Gorham both voted for Oliver’s impeachment and later served as Chairman of the Committee of the Whole at the constitutional convention. Seventeen other men both voted on the Oliver impeachment and served as delegates to the Massachusetts ratifying convention. All of them knew that “high crimes and misdemeanors” had been used in both England and America to describe non-criminal official conduct.

Moreover, multiple framers were explicit in their assertions that various kinds of non-criminal behavior by presidents would be impeachable, including abuse of the pardon power (Madison and George Nicholas), violation of the foreign emoluments clause (Edmund Randolph), convincing the Senate to ratify a treaty that “violated the interest of the nation” (Madison), and “wanton removal of meritorious officers” (Madison).

In Federalist 65, Alexander Hamilton not only spoke of impeachable offenses as being in their essence “POLITICAL,” but went on to describe the nature of impeachments this way: “[An impeachment proceeding] can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.” In other words, impeachable offenses are not constrained by the prior definitions afforded by pre-existing law in ordinary courts.

It simply cannot be plausibly maintained that the architects of the constitution would be publicly contending that the constitution contemplated impeachment for conduct not previously barred by law if they had written the constitution to prohibit that precise outcome.

Professor Bowie really has nothing to say about the overwhelming evidence that the founding generation understood impeachable offenses as extending beyond criminal conduct. Or about the fact that, for example, the first successful impeachment and conviction in American history was the 1803 removal of Judge John Pickering, whose offenses were making erroneous legal rulings, drunkenness, profanely invoking “the name of the Supreme Being,” and (probably) being insane. Or about any of the handful of other later impeachments in which American officials were impeached for, and sometimes convicted by the Senate of, non-criminal misbehavior.

Professor Bowie’s interpretive argument seems based primarily on two premises:

First, he points to the trial-like features of the House and Senate impeachment process and the constitution’s use of terms like “convict” or “conviction” to describe the Senate’s verdict. He also observes that sometimes the constitution uses the word “offence” in relation to conduct deemed impeachable. I won’t repeat here my earlier explanation of why the use of such terms simply cannot bear the interpretive weight he places on it.

Second, Bowie’s real argument seems to be a syllogism: (1) removal from office following impeachment is a criminal punishment, (2) the ex post facto clause bars punishment for conduct not previously defined as criminal, and (3) therefore impeachable offenses can only be previously defined crimes. But like any syllogism, this one fails if the initial premise is incorrect.

In his article, Bowie offers no evidence that removal upon impeachment was ever thought by the framers to be criminal punishment, or indeed that the simple fact of removal from public office has ever been categorically deemed a criminal punishment. He simply asserts that disqualification “is undoubtedly punishment.”

In my original response to Prof Bowie, I explained why his position is in tension with basic criminal law theory. Here I will only add that his view was long ago rejected by authorities such as Justice Joseph Story, who in his famous 1833 Commentaries on the Constitution, explained the character of American impeachment, saying: “[A]n impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.”

Moreover, and curiously, for one so reliant upon the textual nuances of the constitution’s impeachment clauses, Prof. Bowie fails to account for the passage of Article One that effectively disproves his premise:

“[J]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Note that the framers do NOT say, “Punishment in cases of impeachment shall not extend further….” The consequence of conviction in an impeachment is carefully called a “judgment.” The word “punishment,” the word critical to Bowie’s argument, appears only later in the sentence describing, not what happens in consequence of impeachment, but what may happen in another, expressly separate, proceeding in an ordinary court.

And that’s the whole point. As I explained in my first response to Professor Bowie, the framers expressly, and designedly, stripped American impeachment of all the characteristically criminal punishments that Parliament had the power to impose upon conviction in British impeachments. The framers did that because they recognized British impeachments had long been criticized for imposing punishments for conduct not previously deemed criminal. And they did it precisely because they intended impeachment to be a mechanism separate from the criminal courts, but available to address political wrongdoing that was dangerous to the Republic, but that had never previously been defined as criminal by statute or common law.

That Prof. Bowie has totally missed the point is driven home by one of his tweets today in which he suggests that because Wm Blackstone, the famous 18th Century treatise author, refers to British parliamentary impeachments as criminal, then American impeachments must be, as well. No. No. A thousand times no. British parliamentary impeachments were essentially criminal in character because they imposed characteristically criminal punishments. The American framers removed the criminal punishments and thus consciously altered the fundamental character of impeachment in this country.

Finally, Prof. Bowie suggests somewhat plaintively in another tweet that he did not invent the argument that American impeachment requires proof of crime. That is, of course, true. The argument has been raised as a matter of course by practically every defendant in every American impeachment since 1788. It was, as he observes, raised by Justice Benjamin Curtis acting as defense counsel in the impeachment of Andrew Johnson. But the fact that a defendant or his counsel makes an argument does not make that argument a correct statement of constitutional law, even if, as in the case of President Johnson, the Senate does not muster the votes to convict him.

Prof. Bowie in a tweet has characterized my unequivocal rejection of his argument as “uncharitable.” That it may be. If so, I apologize for my lack of charity. But Prof. Bowie has resurrected an old and long-discredited canard, and the importance of the question to the present national crisis leaves little room for the customary academic courtesies.

“High Crimes & Misdemeanors” on CNN

14 Sunday Jul 2019

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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.

OBSTRUCTION OF JUSTICE: PART ONE – Section 1503 Obstruction

28 Wednesday Jun 2017

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The commentariat is now absorbed with the – frankly premature – question of whether President Trump can commit the crime of “obstruction of justice.” Luminaries such as Eric Posner and Daniel Hemel of the University of Chicago Law School say he can. Alan Dershowitz of Harvard Law School and former House Speaker Newt Gingrich say he can’t.

Posner and Hemel’s analysis in the New York Times is closer to right, but Dershowitz makes an important point and the issue is far more complex than it appears. Sorting it out requires understanding the interaction of substantive criminal law, rules and norms governing prosecutorial discretion, separation of powers doctrine, and the law of impeachment.

In this and subsequent posts, I will walk through each of these issues.

In federal criminal law, the term “obstruction of justice” refers to violations of a number of statutes. The two critical ones for our purposes are 18 United States Code, Section 1503 and 18 United States Code, Section 1512. In this post, I consider several technical points about Section 1503 obstruction. In the next post, I will examine Section 1512 obstruction. In the third post, I will discuss the key to both 1503 and 1512 obstruction – the requirement that the defendant act “corruptly.”

Section 1503 Obstruction:

A violation of Section 1503 occurs if a defendant “corruptly … endeavors to influence, intimidate, or impede any … officer in or of any court of the United States, or … corruptly… influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.” The last phrase is the so-called “omnibus clause” and has been construed quite broadly by federal courts.

Nonetheless, the statute is subject to several technical limitations not immediately obvious from its text.

First, an obstruction charge may only be brought against a defendant who obstructed a “pending judicial proceeding.” See, e.g., United States v. Neal, 951 F.2d 630 (5th Cir. 1992); United States v. Guzzino, 810 F.2d 687 (7th Cir.), cert. denied, 481 U.S. 1030 (1987); United States v. Capo, 791 F.2d 1054, 1070 (2d Cir. 1986), reh’g granted on other grounds, 817 F.2d 947 (2d Cir. 1987) (en banc); United States v. Johnson, 605 F.2d 729, 730 (4th Cir. 1979), cert. denied, 444 U.S. 1020 (1980); United States v. Baker, 494 F.2d 1262, 1265 (6th Cir. 1974).

The term “judicial proceeding” includes cases that have been commenced before judges, and also, critically, grand jury investigations. United States v. Aguilar, 515 U.S. 593 (1995); United States v. Wood, 958 F.2d 963, 975 n. 18 (10th Cir.1992); United States v. Campanale, 518 F.2d 353, 356 (9th Cir. 1975) (per curiam), cert. denied, 423 U.S. 1050 (1976).

Therefore, it would not be obstruction of justice under Section 1503 to interfere with a federal civil investigation that had not yet resulted in a court proceeding or a criminal investigation in which no grand jury had been or ever would be empaneled. That said, any federal criminal investigation will, if successful in securing evidence sufficient to establish probable cause of a federal felony, eventually involve a grand jury, if only because a grand jury indictment is a constitutional prerequisite to a federal felony prosecution. Ex parte Wilson, 114 U.S. 417 (1885). Therefore, in a criminal case where the alleged obstruction occurs before any charges have been filed, the operative question is whether there is a “pending judicial proceeding.”

A judicial proceeding is pending if a grand jury has been empaneled, has been advised of the existence of the investigation at issue, and has issued subpoenas in the matter. United States v. Nelson, 852 F.2d 706 (3d Cir. 1988). Even if Justice Department attorneys have (as they are entitled to do) issued subpoenas under the authority of and returnable to a particular grand jury, but have not yet informed the grand jurors of these actions, a judicial proceeding may be deemed pending for purposes of Section 1503. United States v. Steele, 241 F.3d 302, 305 (3d Cir. 2001); United States v. Simmons, 591 F.2d 206, 209-10 (3d Cir. 1979). Certainly this is true if the prosecutor contemplates presenting evidence produced in response to the subpoena to the grand jury at some future point. Id. at 210; United States v. Nelson, 852 F.2d 706 (3d Cir. 1988).

In sum, the absolute minimum requirement for a Section 1503 obstruction prosecution seems to be that a grand jury was empaneled at the time of the allegedly obstructive behavior and that one or more subpoenas relating to the investigation were issued under that grand jury’s authority.

Second, the Supreme Court holds that under Section 1503, “The action taken by the accused must be with an intent to influence judicial or grand jury proceedings; it is not enough that there be an intent to influence some ancillary proceeding, such as an investigation independent of the court’s or grand jury’s authority.” United States v. Aguilar, 515 U.S. 595 (1995). Even when there is a “pending judicial proceeding” in the form of an ongoing grand jury investigation, several courts have said that the defendant must know that a grand jury investigation – as opposed to a general inquiry by, say, the FBI or the IRS — is occurring. United States v. Frankhauser, 80 F.3d 641 (1st Cir. 1996) (FBI), United States v. Fassenacht, 332 F.3d 440 (7th Cir. 2003). In addition, courts have held that a defendant must “know that his corrupt actions ‘are likely to affect the … proceeding.’” United States v. Quattrone, 441 F.3d 153 (2d Cir. 2006).

At present (June 2017), the investigation Mr. Trump is suspected of obstructing is the Justice Department’s inquiry into Russian interference in the 2016 election, any collusion by persons associated with the Trump campaign with such interference, and, in particular, General Michael Flynn’s role in those events or other improper connections with foreign powers.  It is unclear from public sources if or when any grand jury became involved in these inquiries.

It is still less clear that Mr. Trump would have been aware of such grand jury proceedings or have harbored an intention to obstruct them, as opposed to entertaining a general notion that he wanted the Russia investigation, which he seems to have conceived as being conducted by the FBI alone, to stop. A court might impute to the President of the United States a basic understanding of the federal criminal process. Or this might be an instance in which Mr. Trump’s fairly transparent ignorance of governmental mechanics could be raised as a defense.