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Corrections of Misrepresentations of My Work by House Homeland Security Committee Republicans in Mayorkas Impeachment

08 Thursday Feb 2024

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By Frank Bowman

As readers of this blog will remember, I was called as a witness by the House Homeland Security Committee in the first impeachment hearing of Secretary of Homeland Security Alejandro Mayorkas on Jan. 10, 2024. During that hearing, several Republican members, to be frank, misquoted or misrepresented things I had written in the past, but did not actually ask me questions about the misquoted or misrepresented passages in order that I could correct their misunderstandings.

Moreover, the Republican majority actually had the temerity to rely on these very same misrepresentations of my work in the text of their report to the full house on the Mayorkas impeachment. See pp. 16 and 26 of the Report.

One of the ordinary practices of congressional committees following a hearing is to allow submission of supplemental questions to witnesses to permit witnesses to amplify on points thought critical by a member, or to clarify issues on which there may have been a misapprehension by a member of a witness’s testimony. These questions are submitted by members to the Committee’s clerk, who in turn is supposed to pass them along to the witness. Once the witness responds, the responses become part of the record of the hearing.

Ranking Member Bennie Thompson (D-MS) was good enough to submit to the clerk several supplemental questions allowing clarification of Republicans’ misapprehension of my prior work. It is a curious fact that, although those questions went to the clerk roughly two weeks ago, the clerk sent them to me only today, long after the Committee voted on articles of impeachment, after Committee Republicans wrote their Report containing misrepresentations of my work, and indeed after the full House voted on the Mayorkas articles (for the first, if perhaps not the last, time).

Whatever the reason for this delay may have been, I have now provided the clerk my responses. You can read the questions and my responses below:

QUESTION #1 from Mr. Thompson: Republicans have portrayed your previous academic writing as confirming their position that mere policy differences may be a ground for impeachment. In particular, that “displeasure with administration personnel and policy” may be sufficient to warrant impeachment. Is that correct?

I have never written that mere policy differences would be an adequate ground for impeachment. To the contrary, I join with the consensus view of constitutional scholars that ordinary policy differences are not a proper ground for impeachment. Indeed, this general principle is particularly applicable to a disagreement on policy between a presidential administration and a political party controlling only one house of Congress, and that by the very narrowest of margins.

The quotation to which the question alludes, one mentioned by Chairman Green and Rep. Bishop, occurs in the final paragraph of Chapter 4 of the second edition of my book, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge Univ. Press 2023). Both congressmen take the snippet of text they quote entirely out of context.

In the referenced section of Chapter 4, I discuss the only prior impeachment of a U.S. cabinet officer, President Ulysses Grant’s Secretary of War, William Belknap. Prior to the quoted passage, I explained why no cabinet officer before or after Belknap has been impeached. The primary, and obvious, reason is that, as I wrote, any cabinet officer “whose behavior veered anywhere near an impeachable zone” was simply removed by the President.[1] Which is what happened to Belknap. He took a bribe. When President Grant found out, he fired Belknap. But the House, controlled by Democrats for the first time since the Civil War, impeached the Secretary anyway as a means of politically damaging President Grant and by extension the Republicans in the upcoming 1876 election.

In the final paragraph of Chapter 4, I was, of course, not saying that mere “displeasure” with either a person or a policy is a constitutionally acceptable ground for impeachment. Rather, when a subordinate official has actually committed “treason, bribery, or other high crimes and misdemeanors” (as Secretary of War Belknap incontestably did), Congress might elect to proceed with impeachment to signal its displeasure.

Secretary Mayorkas has not committed any impeachable offense. Impeaching a cabinet officer innocent of “treason, bribery, or other high crimes and misdemeanors” to indicate displeasure with administration policy or the officer’s administration of that policy would be a profoundly anti-constitutional act.

QUESTION #2 from Mr. Thompson: In the past, you have written that impeachable “high crimes and misdemeanors” can be interpreted to include “serious executive misconduct, including…betrayal of the nation’s foreign policy interests” such as when a president subordinates the nation’s interests to foreign interests. Republican Rep. Guest suggested that you have written in the past about foreign policy differences as grounds for the first impeachment of President Trump—what you describe as Trump’s “rolling destruction of American foreign policy”—and that your past writing contradicts your testimony at the January 10, 2024, hearing. Are foreign policy differences an impeachable offense, and how do foreign policy differences differ from ordinary policy differences?

I have written that one of the accepted historical categories of impeachable conduct, in both the pre-1787 United Kingdom and in the United States, has been “betrayal of the nation’s foreign policy interests.”[2] However, in saying this, I was obviously not saying that ordinary policy differences between a presidential administration and the opposing political party become impeachable simply because the subject matter of the disagreement is foreign, rather than domestic, policy.

To the contrary, long precedent establishes that, in the U.S. impeachment context, “betrayal of the nation’s foreign policy interests” has had certain identifying features.

First, for impeachment purposes, a nation’s “foreign policy interests” are not merely the transient preferences of a political party or faction. Rather, they are enduring interests about which there is a broad societal consensus, ideally one embodied in statutes, treaties, the practice of multiple presidential administrations, and (where applicable) the views of a nation’s diplomats, foreign policy experts or professionals.

Second, the word “betrayal” implies, not merely changing policy or adopting policy views contrary to one’s political adversaries, but subverting the national interest for illegitimate, often personal, motives.

British impeachments that illustrate these features include the following.

In 1667, after an expensive and unnecessary war with the Dutch, the Earl of Clarendon was impeached in part for seeking payments from France to the British crown to evade parliamentary controls on royal finance.

In 1678, the Earl of Danby was impeached for soliciting—on behalf of the English King Charles II—a bribe from Louis XIV of France in return for English neutrality in the Franco-Dutch War.

Both Clarendon and Danby’s solicitations not only undercut longstanding British foreign policy objectives and subjected the British monarch to undue foreign influence, but were a bald attempt to avoid a significant parliamentary constraint on royal overreach – the requirement that the Crown obtain “supplies” (i.e., funding in addition to the monarch’s private wealth) through the legislature.

More relevant to the present case are the American impeachments of Senator William Blount in 1797-98 and of President Donald Trump in 2020.

Sen. William Blount: Blount, then a U.S. senator, concocted a scheme to enrich himself by giving Great Britain control of the territories of Louisiana and Florida. Blount’s scheme was obviously contrary to contemporary U.S. foreign policy interests inasmuch as the American government and populace wanted to expand into Louisiana and Florida, or at the very least to prevent Great Britain from assuming control over those territories. In addition, the articles of impeachment against Blount charged him with violations of the Neutrality Act of 1794, and also with violation of the Treaty of Friendship, Limits, and Navigation between the United States and Spain (because his scheme involved stirring up Native American tribes to attack Spanish officials and interests).

Not only was Blount’s scheme undeniably contrary to U.S. foreign policy interests, and to multiple treaty obligations,[3] but it was a “betrayal” in the most obvious sense. Blount tried to sell out the interests of his country for personal financial gain.

Although Blount was acquitted by the Senate, the historical consensus is that the verdict turned on the decision that senators are not “civil officers” subject to the impeachment remedy under Article II, Section 4 of the Constitution.[4]

President Donald Trump:

President Trump’s first impeachment involved two articles, the first charging that Trump committed “high crimes and misdemeanors” in relation to his scheme to coerce the government of Ukraine into announcing investigations into Trump’s likely presidential opponent, Joe Biden, and the second charging obstruction of Congress. The first article was captioned “Abuse of Power,” but as I have written, it “braided together three themes … corruption, damage to foreign policy interests, and injury to the democratic process.”[5] As the first article of impeachment summarized the matter:

President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.[6]

The “national security and other vital national interests” alluded to in the article were the interest of the United States in supporting, militarily and diplomatically, a country threatened, and indeed physically invaded, by Russia, a longstanding geopolitical opponent of the United States, together with the interest of the United States in preventing Russian territorial expansion up to the borders of the countries of the NATO alliance.

These objectives had been endorsed as national security interests of the United States over multiple presidential administrations through repeated bipartisan approval of legislation authorizing military and security aid to Ukraine.[7] They were also endorsed by the entire diplomatic and national security apparatus of the U.S government before and during the Trump Administration itself.[8] For example, when Trump’s White House Office of Management and Budget (OMB) placed a hold on congressionally mandated aid to Ukraine in the July 2019 as part of President Trump’s scheme to coerce Ukraine, every relevant agency of Trump’s own administration except OMB questioned the hold and supported military assistance to Ukraine as being in the national security interest of the United States.[9]

Thus, Trump’s first impeachment precisely matches the template for “betrayal of the nation’s foreign policy interests” described above.

First, the foreign policy interests of the United States in that case were enduring interests embraced by multiple presidential administrations, endorsed by the foreign policy professionals of the executive branch, and manifested in bipartisan legislation enacted by multiple U.S. congresses.

Second, and critically, the “betrayal” of U.S. interests consisted of subverting the national interest for illegitimate personal motives – securing a personal political advantage over a potential political rival. In Trump’s case, the betrayal was doubly severe because it amounted to an effort to use presidential power to corrupt the democratic electoral process.

Secretary Mayorkas: Nothing alleged against Secretary Mayorkas meets the traditional criteria for impeachment based on “betrayal of the nation’s foreign policy interests.” The most that can be said against him is that he has executed the policy preferences of President Joe Biden in relation to immigration and border control issues and that the political party in control of the House of Representatives disapproves of those policy preferences.[10] There is no indication that the Secretary’s actions, or indeed the Biden Administration’s policy choices, are contrary to established national foreign policy interests. To the contrary, U.S. policy regarding immigration and border control has varied from administration to administration and congress to congress as the challenges, needs, and preferences of the country have varied. More importantly, there is absolutely no indication that Secretary Mayorkas has taken any official action for corrupt or illegitimate personal motives.

To repeat the central point, ordinary policy differences between a presidential administration and the opposing political party do not become impeachable simply because the subject matter of the disagreement is foreign, rather than domestic, policy.

Question #3 from Mr. Thompson: Rep. Crane suggested that Secretary Mayorkas has betrayed the Nation, and that betrayal of the nation would be sufficient to warrant impeachment. Are you aware of any evidence that Secretary Mayorkas has betrayed the United States? And Rep. Crane further suggested that you said “betrayal of the Nation” is a potential ground for impeachment, whereas you actually said “betrayal of the nation’s foreign policy interests” is a ground for impeachment. What precisely did you mean?

I did not say in my testimony to the Committee or elsewhere that that “betrayal of the nation” is a ground for impeachment. I have agreed with Charles Black that one decent definition of “high crimes and misdemeanors” that covers most cases is offenses “which are extremely serious, which in some way corrupt or subvert the political and governmental process, and which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.” Nothing alleged against Secretary Mayorkas meets this general definition of impeachable conduct.

I have also written that one specific category of impeachable “high crimes and misdemeanors” is “betrayal of the nation’s foreign policy interests.” In my previous answer, I explain what is meant by that phrase for purposes of impeachment and I demonstrate why Secretary Mayorkas’ conduct does not fall within it.

Finally, I am aware of no evidence that Secretary Mayorkas has betrayed the nation. To the contrary, based on the facts of which I am aware, Secretary Mayorkas appears to be a capable, dedicated public servant trying as best he can to carry out the policy priorities of the President of the United States and to manage the perennial and intractable problems related to immigration

[1] Frank O. Bowman, III, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump (2d ed.) 120 (Cambridge Univ. Press 2023).

[2] Bowman, High Crimes & Misdemeanors, supra note 1, at 39, 102; Frank O. Bowman, III, The Constitutional Case for Impeaching Donald Trump (Again), Just Security (Jan. 9, 2021).

[3] As I have written elsewhere:

Blount’s scheme violated national foreign policy objectives shared by the executive and legislative branches. President Adams, and Washington before him, favored U.S. neutrality in the ongoing European wars.  Before Adams’ election, Congress had passed legislation mandating neutrality and specifically barring the sort of buccaneering adventure against foreign states Blount was planning. The friendship treaty with Spain, negotiated by the executive and ratified by the Senate, imposed an obligation on both nations not to stir up hostility against each other among the Indian nations.  Similarly, U.S. policy toward the Indian nations, embodied in legislation, was to maintain peaceful relations and to avoid friction by dealing with them only through governmentally authorized agents. Finally, unstated in any treaty or statute, but widely understood, was a general desire to weaken the hold of European powers on lands bordering the United States, particularly land around the vital Mississippi waterway, leaving those territories available for American expansion and annexation. *** Blount’s adventure ran afoul of all these objectives.

Bowman, High Crimes & Misdemeanors, supra note 1, at 117-18.

[4] Id. at 115-16.

[5] Id. at 331.

[6] House Resolution 755, 116th Cong. (Dec. 18, 2019).

[7] Bowman, High Crimes & Misdemeanors, supra note 1, at 313.

[8] Id.

[9] Report of the House Permanent Select Committee on Intelligence, Pursuant to H.Res. 660 in Consultation with the House Committee on Oversight and Reform and the House Committee on Foreign Affairs (Dec. 2019), at 72-74.

[10] Republican Members of this Committee have contended that Secretary Mayorkas is not merely executing Biden Administration policy preferences but “violating the law.” However, as I have demonstrated elsewhere, that is not the case. See Frank O. Bowman, III, Republicans Are Calling to Impeach Homeland Security Secretary Alejandro Mayorkas, Here’s Why Their Case is Bunk, Just Security (March 13, 2023), https://www.justsecurity.org/85427/republicans-are-calling-to-impeach-homeland-security-secretary-alejandro-mayorkas-heres-why-their-case-is-bunk/. The most that can be said is that there has been litigation challenging some decisions by Secretary Mayorkas, none of which has to date resulted in a final decision contrary to the Secretary. Moreover, as I indicated in my written testimony to the Committee, “As a constitutional matter, the existence of active litigation challenging discretionary actions by a cabinet secretary (or indeed by a president) is no ground for impeachment.” Bowman, Written Statement to House Committee on Homeland Security (Jan. 10, 2024), at 9.

Children Running With Knives: House Republicans & the Mayorkas Impeachment

07 Wednesday Feb 2024

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by Frank Bowman

House Republicans today charged ahead with an impeachment vote on Secretary of Homeland Security Alejandro Mayorkas. And ran straight into a brick wall. The nays had it 214-216.

In normal times, this result would have been entirely predictable, even inevitable given both a complete want of evidence that Mayorkas committed “treason, bribery, or other high crimes and misdemeanors,” and universal disapproval from those with even a nodding acquaintance with the text and history of the Constitution’s impeachment clauses.

It is no secret that the House Republicans’ motivation for seeking Secretary Mayorkas impeachment has been crassly political. They want to put immigration front and center in the 2024 election, as does former President Trump. Hence, it makes cynical sense both to block the bipartisan immigration deal pending in the Senate and to impeach Mayorkas for nothing more than being the face of Biden Administration immigration policy.

Even so, the temptation to employ impeachment against cabinet officers for purely partisan reasons has existed since the founding of the Republic. Only once, in the case of Secretary of War William Belknap in 1876, has the House yielded to them (by impeaching Belknap after he had already resigned). But even the Belknap case is easily distinguishable from the Republican’s pursuit of Mayorkas because Belknap indisputably did commit the impeachable offense of bribery.

For some 235 years, members of Congress have understood that neither cabinet officers nor presidents were to be impeached for mere disputes over policy, and that commencing a practice of impeachments for policy disputes would subvert the basic separation of powers design of the Constitution and weaken impeachment as a tool for dealing with truly dangerous executive office holders.

So some other explanation for the Republicans’ present constitutional heedlessness seems required.

The common hypothesis is simply that Congress generally, but more particularly its Republican membership, has become more overtly partisan than has been true at any time in living memory. And more importantly that the Republican Party is no longer a conventional American political party interested in legislative success and competent governance, but an extremist movement in thrall to a disturbed authoritarian.

This, I think, is the core problem behind most of Congress’s current dysfunction, and also the primary explanation of the Mayorkas impeachment travesty. Nevertheless, there are corollaries that help explain how this particular debacle unfolded.

One striking phenomenon is the degree to which the “Impeach Mayorkas” train has been driven by novices, newcomers to leadership and indeed to Congress itself, with little or no knowledge of congressional rules, norms, and traditions; a shocking ignorance of the proper role of Congress in the constitutional system; and an evident disrespect for the institution in which they serve.

It has often been remarked that current Speaker of the House Mike Johnson is in only his fourth two-year term in the House, and that he is the least experienced Speaker in 140 years. But the experience levels of those most directly involved in the Mayorkas impeachment are even lower.

The event that precipitated impeachment hearing in the House Homeland Security Committee was privileged motion to impeach the Secretary introduced the House floor by Rep. Marjorie Taylor Greene (R-GA), a, shall we say, noisy member in her second term. The parliamentary vehicle for avoiding immediate impeachment by the whole House was a motion to refer the matter to the Homeland Security Committee.

The Homeland Security Committee could have buried Greene’s incendiary screed in the queue of other work, as has been the custom for both parties when confronted by exhibitionist impeachment petitions from fringe members. Instead, Homeland Security Chairman, Mark Green (R-TN), chose to make it an immediate priority.

That Chairman Green acted as he did is, of course, primarily a consequence of the general radicalization of the House Republican caucus. But it is also, I suspect, a result of the sheer inexperience of both Green and his Republican colleagues.

Incredibly, Rep. Green, the chair of a major committee, was himself first elected in 2018. And of the eighteen Republican members of Homeland Security, Green is junior in seniority to only two members – Michael McCaul (R-TX), elected in 2005, and Clay Higgins (R-LA), elected in 2016. Two Republican committee members other than Chairman Green were elected in 2018, five were first elected in 2020, and eight are serving their first terms in Congress. Moreover, of the eighteen Republican committee members, only three had prior state legislative experience.

In short, this is a group that collectively has virtually no experience actually doing the primary job Congress, or indeed any legislature, is supposed to do — inquire soberly into the problems of the country, craft legislation to provide solutions to those problems, and negotiate with other members (of both the other party and one’s own) to agree on statutory language which can gain the approval of a bicameral legislature and the signature of the President.

Of course, one cannot attribute the intemperate conduct of Homeland Security Republicans entirely to callow inexperience. The nature of their brief tenures also matters. The congressional lives of Republicans on the Homeland Security Committee have consisted almost entirely of serving in the minority as members of a party that now confers influence based not on seniority or legislative accomplishment but on some combination of performative obnoxiousness and regular expressions of fealty to Donald Trump.

Still their collective inexperience seems a likely contributing factor.

A source of strength for any well-established institution is the accumulated wisdom embodied in its rules, traditions, norms, and expectations, a wisdom preserved in the institutional memory of its long-serving members. In any sound organization of long standing, when mad schemes are proposed, the older, more experienced, more prudent members are apt to put a brake on foolishness by noting how contrary the new scheme is to institutional values, institutional interests, and long-settled norms. Any organization which has lost its prudent older generation, or perhaps has consciously determined to ignore them, is apt to fall into self-defeating error.

The House Republican caucus now seems to have only a tiny handful of sober keepers of the institutional flame. But on this occasion, that handful was enough. The rest of the caucus, marching heedlessly beneath the standard of House novices Speaker Mike Johnson and Chairman Mark Green, blundered to an embarrassing defeat.

Of course, it appears Speaker Johnson will take another run when Rep Steve Scalise (R-LA) returns from cancer treatment. But neither the merits of the case nor the amateurishness of its advocates will change…

Second Edition of “High Crimes & Misdemeanors” Now Available

11 Monday Dec 2023

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I’m pleased to report that Cambridge University Press has just released the second edition of High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump. The first edition was published in August 2019, just before the Trump-Ukraine story broke, precipitating Trump’s first impeachment. Although I was pleased and honored that the book was widely read and cited by the participants in the Trump impeachments, the treatment of impeachment in the first edition seemed incomplete without discussion of the Trump events. Accordingly, the second edition contains nine new chapters describing and analyzing the actual impeachments of Donald Trump, as well as the other scandals of his presidency that some argued should have resulted in impeachment.

I’m also pleased to report that readers with an intimate familiarity with the Trump impeachments think well of the second edition. Cong. Jamie Raskin (D-MD), lead impeachment manager of the second Trump impeachment, says of the book that it is: ‘A perceptive, historically-grounded and constitutionally fastidious guide to the people’s ultimate check against a president who behaves like a king or a mob boss.’

Sadly, the new edition may prove to be of not only historical interest. As I write this, House Republicans are teeing up a vote on a resolution authorizing and impeachment investigation of Pres Joe Biden. The current situation is a weird, distorted mirror image of the situation facing the country in the fall of 2019. Accordingly, some may find the second edition’s discussion of those earlier events and the catastrophic close of the Trump presidency of relevance in considering present circumstances.

The second edition is available from Cambridge Univ Press itself — https://www.cambridge.org/us/universitypress/subjects/law/us-law/high-crimes-and-misdemeanors-history-impeachment-age-trump-2nd-edition?format=PB

And also from Amazon —

The senatorial oath requirement in impeachment trials

03 Friday Jan 2020

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By Frank Bowman

Over the past few weeks, the requirement of Article I, Section 3, of the Constitution that senators, when sitting in trials of impeachment, “shall be on oath or affirmation,” has provoked some heated discussion. The Constitution does not prescribe a particular form of words, but, by tradition, senators now declare that, “I, [name], solemnly swear, (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachment now pending, I will do impartial justice, according to the Constitution and laws: So help me God.”

Democrats have decried Senate Majority Leader Mitch McConnell’s statement that he is not impartial and will coordinate trial strategy with the White House as a preemptive violation of this oath. Others have suggested that the oath implies an obligation by all senators to pursue relevant evidence by adopting rules that authorize Senate subpoenas to recalcitrant administration witnesses.

These may be effective rhetorical ploys, but as a constitutional matter, the oath requirement probably doesn’t compel any particular action.

In truth, we don’t really know what the Framers had in mind with the senatorial oath requirement. Some commentators have suggested that it was meant to emphasize that the Senate proceeding, in which the Senate has “the sole power to try all Impeachments,” is to be a trial-like process with trial-like rules. But that’s pure speculation, and it doesn’t really help very much even if true. To say that an impeachment trial should have some attributes of trials in other settings just doesn’t get us very far.  The Supreme Court, in its only case on the minimum requirements for a Senate impeachment trial, U.S. v. Walter Nixon, said that the word “trial” doesn’t imply any particular procedural rules.  In essence, it found that the Senate can adopt pretty much any rules it likes short of deciding cases by coin flip.

Moreover, trying to analogize Senate trials to, for example, ordinary jury trials and senators to jurors (or even judges) just doesn’t work. The distinctive function of criminal and civil trial juries is that the judge tells them the law — i.e., what facts the plaintiff or prosecution must prove — and then the jury is to perform the very narrow task of deciding if the facts have been proven to the requisite degree of certainty (beyond a reasonable doubt in criminal cases, or to a preponderance of the evidence in civil trials).  Juries are never asked if the facts they have found should matter. 

For example, if the CEO of a corporation is tried for fraud, the jury is asked to decide whether Elements A, B, C, and D of the crime the law calls “fraud” have been proven, but they are not asked if fraud should be a crime in the first place.  Nor are they asked to consider whether this particular fraud by this defendant under these circumstances ought to be excused because it’s just not serious enough. Nor are they allowed to decide to wave away the whole affair because, on balance, the defendant has been a good CEO and removing him would be bad for the corporation.

Yet this is exactly what the senators are charged with doing in an impeachment case.  They find facts, yes, but they are also the judges of the law, by which I mean the questions of whether the proven facts amount to an impeachable “high crime or misdemeanor” and whether the president’s conduct ought to result in removal from office.

What’s more, unlike jurors in a court case, or even judges in such cases, senators as a body are not bound by any preexisting rules of procedure or evidence.  They are entitled to make such rules as seem appropriate to them at the outset, and to change them by majority vote in the middle of the trial if they like. 

In the end, I think the oath requirement has, and perhaps was intended to have, three related functions. First, it emphasizes the solemnity of the occasion.  Second, it admonishes senators to be honest in their judgments of the facts and, so far as possible, not swayed by partisan allegiances or personal political considerations.  Third, it reemphasizes the oath senators take upon assuming office to support and defend the constitution insofar as the impeachment trial oath charges senators with making judgments consistent with maintenance of constitutional order and promotion of the national interest. 

Therefore, one can fairly argue that the oath requirement calls senators to examine their motives and their consciences both when framing the original trial rules and in subsequent votes on process and substance.  Such an examination should tilt in favor of insistence on full production of evidence by the administration.  It should also, at least in my view, dispose senators to uphold the law, long-accepted norms of presidential behavior, and the institutional prerogatives of their own chamber even at some political risk.

Sadly, however, other than as a basis for an appeal to conscience, and when that fails, as a rhetorical club with which to thrash Republican senators, I don’t think the oath requirement has much practical value.

An illustrative hypothetical…

28 Saturday Sep 2019

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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? 

Impeach Donald Trump

24 Tuesday Sep 2019

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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.

Preliminary thoughts on Mueller’s Judiciary Committee testimony

24 Wednesday Jul 2019

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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

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.

The Black Pardon

16 Thursday May 2019

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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.

black.jpgDarren Calabrese / THE CANADIAN PRESS

Trump and Pardon Power

12 Friday Apr 2019

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Tyler Brown’s article, “The Court Can’t Even Handle Me Right Now: The Arpaio Pardon and Its Effect on the Scope of Presidential Pardons,” published in the Pepperdine Law Review, examines the effect the President Trump’s pardon of Joe Arpaio will likely have on the law and Trump’s political standing:

The Constitution grants the president the power to pardon individuals for offenses against the United States. Courts have interpreted this power broadly, and the American public has historically accepted its use, even in the face of several controversial pardons over the last five decades. However, after President Trump pardoned Joe Arpaio—a former Arizona sheriff who was held in criminal contempt of court for continuing to illegally detain suspected undocumented immigrants—scholars, activists, and political figures questioned whether this pardon was unconstitutional. This Comment discusses the Court’s interpretation of the pardoning power, controversial pardons in modern history, and the details of the Arpaio pardon and the public’s response. After comparing the Arpaio pardon to previous pardons, analyzing constitutional arguments, and laying out the legal and political impact the pardon may have on the Trump administration, this Comment ultimately concludes that the Arpaio pardon is constitutionally suspect, but the current Court is not likely to make any changes to the pardoning power’s broad interpretation.

AP19003760665159.jpgAssociated Press