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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Tag Archives: electoral college

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

12 Wednesday Dec 2018

Posted by impeachableoffenses in Uncategorized

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case for impeachment, electoral college, electoral corruption, electoral misconduct, hush money payments, Jerrold Nadler, Michael Cohen, russian meddling, Russian meeting

By Frank Bowman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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A reflection on the relationship between impeachment and a minority presidency…

16 Saturday Sep 2017

Posted by impeachableoffenses in Uncategorized

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electoral college, minority president

In my last post, I noted that students in my Honors College tutorial are preparing posts for this blog. One of these posts alludes in passing to the fact that Mr. Trump is a minority president — his opponent received nearly 3 million more votes and he wields the awful powers of an American president solely due to the peculiarities of the ever-more-regrettable Electoral College.

Walking around the world day to day over the last ten months, I have tried not to dwell on this fact.  It is just too galling to reflect that a clear majority of the American electorate correctly judged Mr. Trump unsuitable for the presidency, only to have that judgment overridden by a constitutional anachronism.

Consider, if you will, that the margin of Mr. Trump’s loss — 2.9 million votes — would have constituted more than 3/4 of all the 3.89 million human beings — male or female, children or adults, free or slave —  living in the United States in the decade the Constitution was adopted.  And substantially more than three times the number of free white males eligible to vote in the presidential elections of the period.  Largely due to the political difficulty of excising the Electoral College, we are wont to minimize the sheer outrageousness of our current situation, sometimes by pointing out that even a margin of nearly 3 million is only 2.1 percentage points, sometimes by mumbling about how the considerations that led to the adoption of the Electoral College remain relevant today.

Both these rationalizations are bunk. A system that awards elective office to a candidate who comes in second by multiple percentage points and 3 million actual votes has lost any serious claim to producing a democratic outcome.  Moreover, honoring democratic choice is not merely an abstract principle, but acknowledges that the judgment of the majority of a free populace is likely to be wiser than the judgment of the minority.  A country that awards office to the losers of fairly contested elections may reasonably expect inferior performance from those the majority has found wanting.  It is sobering to consider that two of the last three American presidents assumed office after losing the popular vote, and more sobering still to consider the performance of the two popular losers.

As for the founders’ reasons for cobbling together the Electoral College, space precludes addressing them one by one, but virtually none of them withstand scrutiny in the modern world. Leaving all else aside, the founders envisioned an Electoral College entirely different than the one we know, an institution that would be repugnant to modern notions of democracy.  They imagined the electors as a body of persons not bound by the popular votes of the states from which they were chosen, but permitted and expected to exercise judgment in casting their votes. As Alexander Hamilton wrote in the Federalist, Number 68:

[T]he immediate election [of the president] should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

Hamilton, who was no democrat, viewed the interposition of elite electors between the judgment of the democratic mob and the selection of a president as a good thing.  Few would join that opinion today. And in any case, the Electoral College never served the function the founders envisioned for it. Rather, it has lingered as a means of preserving outsize influence for underpopulated rural states, of giving power to real estate rather than citizens.

But what have the deficiencies of the Electoral College to do with impeachment?  Formally, little or nothing. Nonetheless, several connections suggest themselves.

First, there is, I think, a definite link between the voting public’s perceptions of the legitimacy of the presidential selection process and the ease with which those on the losing side turn their thoughts to impeachment.  In Mr. Trump’s case, impeachment talk began almost as soon as the election results were announced.  Some of the impetus for such talk surely stemmed from what many people across the political spectrum viewed as Mr. Trump’s manifest unsuitability for the office. But the idea of impeachment has, I think, also drawn strength from the undeniable fact that, measured on strictly democratic rather than formal constitutional grounds, Mr. Trump’s presidency lacks legitimacy.

Mr. Trump’s defenders (and indeed many who don’t like him, but are of a pragmatic turn of mind) may respond dismissively that the election rules written into the constitution make him legitimate beyond question.  But those who find both the man and the anachronism of the Electoral College wanting can fairly respond that impeachment, too, is a constitutional mechanism, one that the founders imagined would be employed rather more often than has historically proven necessary.  In short, an unsuitable  candidate made minority president by one constitutional mechanism can be unmade by revivifying another constitutional mechanism devised to protect the republic from dangerous chief executives.

Second, and here my thoughts are a good deal more tentative, might it not be argued that the standards of impeachable conduct are fractionally less forgiving for a president whose democratic legitimacy is impaired by having been soundly rejected by a majority of the electorate?  I’m not yet prepared to press this point very far because I see a number of fair objections to it.  But inasmuch as impeachment is, by express design, a political judgment on both the personal conduct of a president and his capacity to fulfill the duties of his office with the confidence of the country, the question is worth thinking about.

 

 

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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