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The Case for Impeachment of Donald Trump, Part 4 (Subversion of the justice system)

28 Monday Jan 2019

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By Frank Bowman

Much of the public conversation about possible impeachable conduct by Mr. Trump has centered on obstruction of justice in the narrow sense of a violation of criminal statutes defining obstruction. I have discussed the legal issues surrounding the application of those statutes to Mr. Trump at length on this blog (see this link for a list of those posts). I will do so again once the Mueller investigation is complete. Until then, I am reluctant to offer a definitive view on whether Mr. Trump’s conduct constitutes obstruction in the legal sense or on whether such legal violations are of the type that constituted so large a part of the impeachment case against Richard Nixon.

Nonetheless, if the case for technical obstruction of justice remains uncertain, the conclusion that Mr. Trump has systematically sought to corrupt and subvert the justice system as a whole is ironclad.  Inasmuch as the health of the justice system is essential to the health of constitutional order, a presidential effort to undermine it deserves consideration as impeachable conduct.

Throughout his pre-presidential career in business, Mr. Trump viewed the law from two perspectives.  As the operator of multiple businesses some aspects of which, at best, skirted the edges of legality, Mr. Trump viewed the government’s civil and criminal enforcement agencies as opponents to be thwarted or circumvented.  Conversely, he learned early to use his money to employ private civil litigation as a weapon against personal and business adversaries.  As of 2016, he and his businesses had been involved in more 3,500 lawsuits.

Mr. Trump has carried his prior attitude toward the law into the White House.  Early in his presidency, exasperated by the pertinacious refusal of James Comey to back off the Russia investigation and by Attorney General Sessions’ decision to recuse himself from that investigation, Trump famously asked, “Where is my Roy Cohn?”  The reference being to the notoriously hard-nosed and questionably ethical lawyer who acted as Trump’s legal fixer and attack dog early in his career.  More disturbing than the desire for a personal legal heavy is the fact that Mr. Trump plainly imagines the role of the Department of Justice and the rest of the federal law enforcement establishment as defending him against legal inquiries and standing ready to use the law to discredit or even imprison his critics and opponents. 

The essence of Mr. Trump’s defensive approach has been to appoint justice officials chosen for personal loyalty (e.g., Jeff Sessions and Matthew Whitaker) and simultaneously to attack any official, whether political appointee or career civil servant, who pursues matters that might implicate Trump, his family, or his supporters.  When Sessions disappointed Trump’s expectations of servility by recusing himself from the Russia investigation, Trump turned on him, calling him “weak,” “disgraceful,” and an “idiot” before finally firing him.  He has characterized the FBI as “in tatters” and the Justice Department itself as “an embarrassment to our country.”  His personal assaults have even reached down into the middle levels of the Justice Department bureaucracy, as exemplified by his baseless demonization of career DOJ official Bruce Ohr. The unifying theme of Trump’s assaults on all the men and women doing their duty by investigating matters that might implicate or inconvenience him is that they are corrupt members of the “Criminal Deep State.”

Trump’s denigration of the integrity of anyone who stands in his way is not restricted to officials and employees of the executive branch he heads, but notoriously extends to the federal judiciary.  Trump routinely attacks any judge or judicial panel that rules against him or any administration initiative.  The examples are too numerous to mention them all, but include:

During his 2016 candidacy, Trump said of U.S. District Judge Gonzalo Curiel, then presiding over suits against Trump University, that he should be disqualified because, as a person of Mexican heritage, he would necessarily be biased against Trump.  When U.S. District James Robart enjoined Trump’s travel ban on persons from certain Muslim countries, Trump tweeted, “The opinion of this so-called judge, which essentially takes away law enforcement away from our country, is ridiculous and will be overturned.”  When U.S. District Judge William H. Orrick enjoined Trump’s executive order attempting to punish so-called “sanctuary cities,” Trump called the order “ridiculous,” and the White House put out a statement declaring, “The San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk. This case is yet one more example of egregious overreach by a single, unelected district judge.”  When U.S. District Judge Brian Morris of Montana enjoined implementation of President Trump’s order to proceed on the Keystone XL oil pipeline, Trump said, “It was a political decision made by a judge.  I think it’s a disgrace.” In response to a pointed rebuke of this kind of rhetoric from Chief Justice Roberts, Trump attacked the Ninth Circuit, asserted that “Obama judges” differ from persons “charged with the safety of our country,” and claimed that judicial restrictions on law enforcement will lead to “bedlam, chaos, injury, and death.”

Of course, throughout American history presidents have disagreed with particular decisions of federal courts and sometimes said so. Both Thomas Jefferson and Andrew Jackson disagreed heartily with important opinions of Chief Justice John Marshall, with Jefferson swallowing them graciously except in private correspondence and Jackson being more outspoken. At the outset of the Civil War, Abraham Lincoln simply ignored an opinion by Chief Justice Taney purporting to void Lincoln’s suspension of habeas corpus near vital rail lines Maryland. When the Supreme Court persistently voided New Deal legislation, Franklin D. Roosevelt fumed and mooted the possibility of inflating the number of justices — his famous “Court Packing Plan” — but never acted on the idea.

Trump’s defenders have attempted to analogize his routine denigration of the judicial branch to prior expressions of presidential unhappiness with legal outcomes. But the effort is strained and unconvincing. No president before Trump has ever made a staple of his ordinary public statements attacks on the integrity of individual judges or the legitimacy of the judiciary as a whole as arbiter of the meaning of the law.

This persistent pattern of questioning the integrity and legitimacy of the courts is not merely distasteful, or, as Trump’s defenders are apt to say, simply a matter of his personal “style.” It is instead overtly dangerous.  Court of Appeals judge Jay Bybee (a Republican appointee of impeccable conservative credentials) wrote in his dissent from the Ninth Circuit’s order upholding the injunction against Trump’s so-called “Muslim ban”:

Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
— Washington v. Trump, 858 F.3d 1168, 1185 (9th Cir. 2017) (en banc) (Bybee, J., dissenting).

Moreover, Mr. Trump’s abandonment of critical norms of presidential behavior in relation to the law have not been limited to questionable appointments decisions or ceaseless rhetorical denigration of legal officers, but has extended to placing pressure on the Justice Department and law enforcement agencies to open criminal investigations into his critics and opponents.  He has apparently been dissuaded from issuing direct orders for such investigations, but has made repeated calls for them in public declarations, most recently in response to the Roger Stone indictment.

Perhaps the most disturbing of Mr. Trump’s demands has been the endless harping that Hillary Clinton, his defeated 2016 rival, should be both investigated and jailed. The famous staple of his political rallies before and after the election — “Lock her up!” — can mean nothing else.

Even Republican stalwarts like former Attorney General Michael Mukasey have said that launching criminal investigations of defeated political candidates is un-American and akin to the practices of “banana republics.” He is right. The hallmark of successful democracies is the peaceful transfer of power from one elected administration to its popularly chosen successor. Such transfers reliably occur only if the electoral losers know that the sole consequence of the loss is return to private life. If a possible consequence of of losing is criminal prosecution by the winner, then losing becomes unthinkable and the contestants will be tempted to ever-more-extreme measures to prevent it. This is the all-too-common precursor to the death of democracy in the developing world. But regression is perfectly possible among mature democracies like our own.

In short, systematic public assault on the executive and judicial branch employees of the justice system is bad enough because it risks creeping corrosion of the public trust essential to the rule of law.  Far more troubling is employing, or even threatening to employ, the vast powers of the federal criminal apparatus against opponents because it places this or any country on a straight road to autocratic rule. 

The facts that the Justice Department has, so far, ignored Trump’s efforts at jawboning and forged ahead with investigation of the president and his associates; that judges have, so far, continued to rule against the administration when moved to do so by their reading of the law; and that the federal law enforcement apparatus has, so far, largely resisted Trump’s calls for retaliatory investigations of his critics does not materially diminish the seriousness of Mr. Trump’s deviation from American constitutional norms. Nor does it materially alter the impeachment calculus.  Federal agencies for the most part resisted Richard Nixon’s efforts to enlist them in efforts to obstruct justice or punish his enemies, but the House Judiciary Committee included Nixon’s unsuccessful efforts along with his more successful ones as grounds for his impeachment.

The Framers inserted the impeachment remedy into the Constitution precisely in order to deal with an executive whose conduct, in George Mason’s words, “subvert[ed] the constitution.” By “constitution,” Mason and his colleagues meant not merely the document they were drafting. They understood that their brief composition could only be the skeleton to which later generations would add the flesh and sinew of statutes, judicial decisions, customs, and behavioral norms that make up the true constitution of any mature state. A president who would subvert that constitution may be impeached.

Trump’s persistent shamelessness has dulled all our senses to the point that he has normalized behavior that would only two years ago have seemed unthinkable. Unthinkable because it strikes so deeply at the unwritten norms — here the impartial, apolitical, administration of the law — that sustain American constitutionalism. It behooves us to shake ourselves free of his narcotic influence to at least consider whether he presents a danger great enough to merit his removal.

The Case for Impeachment of Donald Trump, Part 3 (Foreign Policy)

15 Tuesday Jan 2019

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By Frank Bowman

Among the most persistent misconceptions about impeachment under the United States constitution is that indictable criminal conduct is a prerequisite for impeachment. The prevalence of this error is easy to understand inasmuch as the textual standard for impeachable conduct is “Treason, Bribery, or other other high Crimes and Misdemeanors” — a phrase that sounds like it refers to crime of the customary sort. However, as has been repeatedly discussed on this blog and as virtually all serious students of impeachment recognize, the phrase “high Crimes and Misdemeanors” was adopted by the Framers from British and early American impeachment practice and extended to a wide variety of non-criminal official ineptitude or misbehavior. There is powerful evidence that the Framers included conduct severely damaging to U.S. foreign policy interests in the category of impeachable behavior.

During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they wrestled over what conduct should be impeachable. Various formulations were advanced.  As the convention rounded into the home stretch, the phrase that had taken hold was “treason or bribery.”

George Mason objected because he thought “treason and bribery” far too narrow.  Mason was a student of British impeachment and had authored the post-revolutionary impeachment provisions of the Virginia state constitution.  He wanted a federal impeachment remedy analogous to British practice at least in the conduct it covered, even if not in the sorts of brutal personal punishments Parliament could impose.

“Treason,” Mason said, “will not reach many great and dangerous offences. Hastings is not guilty of treason.” He was referring to the impeachment trial of Warren Hastings, Governor General India, just about to start in England. Mason wanted American impeachments to reach beyond the two indictable crimes of treason and bribery to important breaches of public trust in both the domestic and foreign sphere, the kinds of offenses charged against Hastings.

Mason’s solution was to add the word “maladministration” after bribery. But James Madison rose to object, saying, “So vague a term will be equivalent to a tenure during pleasure of the Senate.”

Mason thought the matter over and came back with a compromise. Omit “maladministration” but add to treason and bribery “other high crimes and misdemeanors.”  The new language passed 8 states to 3.

Mason’s choice of “high crimes and misdemeanors” was not whimsical.  Rather, he lifted it from British practice where, beginning in the 1600s, Parliament increasingly (though not invariably) used this phrase to describe conduct it charged as impeachable.  My study of British and American impeachments convinces me that “high crimes and misdemeanors” does not limit Congressional impeachment power to the necessarily idiosyncratic and antique list of misdeeds Parliament had addressed by 1787.  Both Parliament and the Framers were acutely conscious that the sorts of dangerous public misconduct for which impeachment is a necessary remedy could not easily be described in advance. However, the Framers’ choice of “high crimes and misdemeanors” does set the baseline minimum for the scope of American impeachments. In other words, American officials are properly impeachable for at least the range of conduct covered by British practice.

A persistent theme in British impeachments was the charge that the impeached minister had pursued a policy at odds with the nation’s basic foreign policy interests.  Impeachments on this ground were a constant beginning with the charges against William de la Pole in 1450 for his role in arranging the marriage of Henry VI to Margaret of Anjou.  The Duke of Buckingham was impeached in 1626 in part for loaning English ships to the French to employ against the Protestant Huguenots at Rochelle.  In 1678, the Earl of Danby was impeached for assisting King Charles in negotiations with France for British neutrality in the Franco-Dutch War.  Lords Oxford, Bolingbroke, and Strafford were impeached in 1715 for their advocacy of the Treaty of Utrecht, which was widely despised as selling out Britain’s Dutch allies in favor of making accommodations with Britain’s traditional enemy France. And Warren Hastings’ 1787 impeachment, so central to George Mason’s thinking, centered on fundamental disagreements about the proper relationship of Great Britain to its Indian possessions and the states that abutted them.  

Over and over again, Parliament employed impeachment to assert an authority independent of the royal executive to define the nation’s true foreign policy interests. That Congress has believed itself to have similar authority is demonstrated by the first impeachment in American history, that of Senator William Blount, charged in 1797 with conspiring to assist the British in acquiring Spanish territory in Florida.  Blount was acquitted, but only because there were doubts that senators are “civil officers” subject to impeachment and because he had already resigned.

During the 1788 ratification debates on the federal constitution, James Madison insisted that a president who made a treaty that “violated the interest of the nation” and convinced the Senate to ratify it could be impeached. 3 Jonathan Elliot, The Debates in Several State Conventions of the Adoption of the Federal Constitution 500 (1827).  If, in the considered opinion of the architect of the American constitution, a president can be impeached for inveigling the Senate into one bad treaty, we surely can impeach a president for heedlessly shattering a basket of good treaties and the entire intricate web of foreign relationships they support without so much as a by-your-leave.

Consider Mr. Trump’s rolling destruction of American foreign policy.  (And assume that his actions flow merely from caprice or bad judgment, and are not, bizarre though it seems to say such a thing, the result of his having been compromised by Russia.)

To summarize, in the seventy-odd years since the Second World War, generations of American presidents, legislators, soldiers, and diplomats have labored to create a world order of multilateral institutions and agreements with the United States at its center.  That order has averted nuclear annihilation, prevented conventional war between the major powers, secured a stable, democratic Europe and an increasingly prosperous and stable East Asia, managed the fall of Soviet communism, and overseen a fairly universal rise in human material welfare, all while maintaining the United States as the single indispensable world power.  All has not been wine and roses for everybody, of course.  Humanity is on the verge of destroying the world’s ecosystem through climate change, pollution, and habitat destruction.  And global overpopulation and income inequality pose continuing threats to individual well-being and regional peace.  However, the looming existential crises of the age can only be addressed (if they can be at all) through increased collaboration and cooperation across borders. Most importantly for present purposes, whatever else one may think about the post-World War II world order, it has been hugely advantageous for the United States, placing this country at the center of all important decisions about international trade, finance, technology, and security.

Since his election, Mr. Trump has moved steadily in the direction of unilaterally dismantling the United States’ foreign policy, trade, and security architecture by formally abandoning or denigrating every form of multilateral engagement from the Paris Climate Accords, to the Trans-Pacific Partnership, to the Iran Nuclear Accord,to the World Trade Organization,[ to a nuclear weapons treaty with Russia, to the United Nations, not to speak of our most fundamental military alliance, NATO.[ He has consistently quarreled with our oldest democratic allies, while cozying up to autocracies across the globe: Duterte’s Philippines, Crown Prince Mohammed bin Salman’s Saudi Arabia, Viktor Orban’s Hungary, Recep Erdogan’s Turkey, and, of course, Vladimir Putin’s Russia.  The result is that, if allowed to continue, Trump will, singlehandedly, transform America’s position among the nations, from being the leader (however imperfect) of the free world and indispensable fulcrum in every realm of hard and soft power to a diminished, cranky, ungenerous, avowedly self-absorbed friend of tyrants and oligarchs. 

It is of particular moment that Trump is taking the country down this path singlehandedly.  The policies he is pursuing are not the policies of the party under whose banner he ran.  They are not the policies recommended to him by the vast bulk of civilian and military leaders and experts in his administration.  Indeed, as recently demonstrated by the resignation of Secretary of Defense Mattis following Trump’s sudden decision to withdraw entirely from Syria and partially from Afghanistan, they are often undertaken against the explicit opposition of those persons.  They do not emerge from any process of study or consultation. They proceed from his personal whims (or, though I shudder to to contemplate it, perhaps from directions or suggestions provided by Vladimir Putin), abetted by a very small coterie of courtiers. In the case of the Syrian withdrawal, the decision apparently occurred literally in the middle of a phone conversation between Trump and Turkish President Erdogan.  Trump’s position on foreign policy is “l’état c’est moi.” That is not the design of the United States Constitution.

President Trump can do these things in part because Congress has, quite unwisely, acquiesced in the doubtful doctrine that, while two-thirds of the Senate must vote to ratify a treaty, a president may withdraw from it without consent of Congress or anyone else. As pernicious as this legislative timidity has been in principle, one could excuse it on the ground that Congress has assumed with some justice that presidents would be cautious, judicious, and consultative before taking so drastic a step.  While that confidence has not always been justified, it generally has. 

However, in Mr. Trump, the country has for the first time a president who combines a near-complete lack of understanding of history, finance, trade, military affairs, or diplomacy with supreme confidence that he, and no one else, knows exactly how to arrange matters in all these arenas.  In short, the electoral system has placed in the White House the ignorant demagogue that the Framers feared at a time when the system of institutional checks they installed to deal with such an eventuality has atrophied so far as to be nearly useless.  Catastrophe looms unless Congress recognizes the danger and reasserts the powers the Constitution gave it. 

Some of the foreign policy damage Trump is doing could be prevented or at least ameliorated if Congress woke up and employed the tools short of impeachment at its disposal.  That said, there is little question that the constitutional impeachment power includes a situation in which a president is inflicting irreparable harm on the nation’s position in the world and will not be dissuaded. 

National Emergencies and Impeachment

11 Friday Jan 2019

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By Frank Bowman

The looming question in the ongoing government shutdown is whether Mr. Trump will, as he repeatedly threatens, declare a “national emergency” to get funding for his border wall if Congress will not pass budgetary authorization for the edifice. Multiple excellent analyses of a president’s legal authority to declare such emergencies have appeared. The upshot of all of them is that the administration could make superficially plausible arguments for such authority, but that all such arguments would trigger compelling legal challenges. Moreover, a use of “emergency” powers to circumvent congressional unwillingness to fund a long-wished-for presidential pet project would be both unprecedented and a serious challenge to constitutional separation of powers norms.

What has not been fully addressed is the claim, floated by several commentators, that declaration of a national emergency under these circumstances would constitute an impeachable offense. As a constitutional matter, I believe such a declaration could constitute part of a larger pattern of impeachable conduct. However, three factors would make the political path to impeachment on that ground very tricky. The first is the promiscuity with which Congress has ceded emergency authority to the president. The second is the Supreme Court’s overzealous limitations on the so-called “congressional veto” — a mechanism for constraining presidential misuse of Congress’s grants of discretion. The third is the distressing likelihood that Republican legislators, blinded by tribalism and cowed by Trump’s enduring popularity with the Republican base, would not defend their own constitutional authority.

Let’s walk through the problem.

First, as all but a few outliers concede, impeachable offenses need not be crimes. As George Mason, who introduced the phrase “high Crimes and Misdemeanors” into the constitutional text, observed, the primary objective of the impeachment mechanism is to forestall “[a]ttempts to subvert the Constitution.” Multiple British parliaments, from whose precedents Mason drew the phrase “high Crimes and Misdemeanors,” employed impeachment, not for punishment of statutory crime, but to remove executive officials who “subvert[ed] the ancient and well-established form of government” of Great Britain.

One of the most fundamental precepts of American constitutional government is that Congress makes the laws and, in particular, maintains the power of the purse. Article I, Section 9 of the Constitution is unequivocal: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The wall dispute is nothing more than an appropriations fight. The president wants Congress to appropriate money for a special purpose — building a border wall — and Congress declines to do so. A president who claims the power to spend $5.7 billion dollars on a project Congress has expressly refused to authorize is therefore in undoubted violation of the most basic separation of powers principle … unless he can claim that Congress has somehow already authorized him to act.

That’s where the threatened declaration of national emergency comes in. One potentially salutary effect of Trump’s threat is that it has awakened the public to the striking variety of laws permitting a president to claim emergency powers. On the one hand, the existence of such laws is unsurprising. In the modern interconnected world, real threats to the public welfare — war, terrorism, disease, or natural disaster — can arise quickly. Sometimes the federal government is the only entity with the resources for adequate response and sometimes action will be required before congress can authorize it. On the other hand, Congress’s choice to delegate emergency power rests on the assumption, the norm if you will, that presidents will not misuse that power to circumvent ordinary constitutional arrangements. Mr. Trump is casting a bright and disconcerting light on that happy assumption.

Sources of emergency authority

The most likely legal sources of emergency authority for wall-building lie in statutes relating to military matters such as 10 U.S.C. 2808(a). That act provides that, upon presidential declaration of “a national emergency … that requires use of the armed forces,” the government may “undertake military construction projects … that are necessary to support such use of the armed forces.”

Of course, whatever one’s view of the current situation at at the border, there is no serious case that it “requires the use of the armed forces.” Regulating commerce, immigration, and crime at the border are all traditional civilian functions and there has been no recent change, no “crisis,” remotely justifying military intervention. Moreover, even if one believed that the Army had a useful role to play in border security, it cannot be plausibly argued that building several hundred miles of wall would be “necessary to support” military operations. Indeed, Trump’s approach to the issue would turn the statute on its head. He has not claimed that there are required military operations for which a wall would be necessary support. Rather, he claims that the wall is necessary and thus, in the absence of congressional authorization to build it, military funds should be diverted for its construction.

Counteracting an emergency declaration

But assume that whether under Section 2808(a) or some other statute Trump claims emergency power to build his wall. Opponents would have two possible avenues of response.

First, subject to rules about standing, a variety of folks might sue (Congress itself, individual congressmen, border landowners, conservation groups, etc.). Three lines of argument seem likely: (a) there is no “emergency” justifying a presidential declaration in the first place; (b) emergency or not, building a border wall doesn’t fit within the parameters of whatever emergency statute Trump chose to rely on (e.g., building a wall is not necessary to support military operations); or (c) the broader contention that this particular declaration of emergency powers is a transparent nullification of the constitution’s allocation of powers among the branches of the federal government.

Traditionally, courts try very hard to avoid second-guessing presidential decisions in areas where either the constitution or statutes grant him wide discretionary authority. That said, using emergency powers to authorize a long-debated civilian construction project in the face of congressional refusal to appropriate seems such a flagrant abuse that I suspect the courts would ultimately rule against Trump. Nonetheless, he would have a fig leaf of legal justification and resolving the matter would take months or years.

Alternatively, Trump’s congressional opponents could invoke the provisions of the National Emergencies Act. That law, passed in 1976, created a mechanism for congressional termination of presidentially-declared emergencies. As originally written, such emergencies ended once the president said so or congress passed a “concurrent resolution” (a resolution by both the House and Senate). In its original form, the law did not involve the president in the congressional termination process; once the concurrent resolution passed both houses, the emergency was over, regardless of what the president had to say about it.

However, in a 1983 case called INS v. Chadha, the U.S. Supreme Court seemingly voided all so-called legislative vetoes. Chadha involved a statute that allowed a vote by one house of congress to reverse certain executive branch decisions about immigration cases. The Court decided that this procedure violated the constitutional requirement that lawmaking be bicameral, i.e., involve votes by both the House and Senate, and the so-called presentment clauses that require presidential signature before a bill can become law. The primary focus of Chadha was the unicameral nature of the immigration procedure at issue, but Chadha at the least casts grave doubt on the validity of even bicameral congressional veto procedures.

Therefore, in 1985, Congress amended the National Emergencies Act to specify that presidential emergencies terminate when “there is enacted into law a joint resolution terminating the emergency.” This language implies that, to become “law,” the joint resolution would have to be presented to the president for signature. Thus, the president could veto the resolution, leaving the emergency in place unless Congress could summon 2/3 majorities in both houses for an override.

In any previous era of American history, securing a majority or a even super-majority of both House and Senate to void a president’s blatant nullification of the constitutional appropriations authority of Congress would, I think, have been a cinch. Any rational legislator, even one of the same party as the president, would recognize that acquiescence would badly dilute his or her own institutional power. Not to speak of creating a precedent that would be employed by succeeding presidents of the opposite party.

However, the standards and institutional self-respect of this Congress (particularly, if I may say, its Republican members) are so degraded that it seems entirely possible that all but a handful of Republicans would vote to uphold the emergency declaration — the Constitution and separation of powers be damned.

Impeachment

Which brings us to impeachment. I have no doubt that the Founders would have considered presidential abuse of emergency powers to nullify congressional appropriations authority to be impeachable conduct. Invocation of emergency authority in the wall dispute would be unprecedented. It would amount to presidential rule by decree and subversion of a bedrock of American constitutional design.

That said, I suspect even the most doctrinaire constitutionalists might hesitate to impeach a president for a single instance of such abuse. One can fairly argue that Harry Truman’s effort to seize the steel industry for national security reasons in the face of a nationwide strike was a more egregious overstep, and the remedy there was not impeachment, but a judicial smackdown by the Supreme Court in the Steel Seizure Case. However, an unwarranted emergency declaration by Trump would not be an isolated misstep, but merely a single item in the bill of particulars supporting impeachment for a pattern of conduct destructive of the constitutional order.

The likelihood of a Trump wall emergency becoming part of articles of impeachment would be enhanced if one or both of two things occurred:

First, before Congress could seriously contemplate impeaching Trump for abusing his emergency powers, it would have to have exerted its own authority by voting to terminate Trump’s emergency declaration under the National Emergencies Act. If Congress made no effort to use this tool or failed to secure majority votes in both houses, it would be poorly placed to argue that Trump had committed a major constitutional sin against congressional prerogatives. Congressional termination of the emergency by majority votes including significant numbers of Republicans in both houses would be an especially persuasive indicator that this was a constitutional, and not a partisan, disagreement. Still better (though implausible) would be termination votes by veto-proof 2/3 majorities. Sadly, the events of the past two years give one little confidence that many Republican legislators retain sufficient awareness of constitutional principles or indeed sufficient institutional self-respect to resist their raging leader.

Second, if the Supreme Court definitively rejected Trump’s move as an unconstitutional breach of the separation of powers, the case for impeachment would be significantly strengthened. A ruling against Trump on the ground that he violated the terms of a particular emergency powers statute would also be helpful, though not as compelling. Mere misapplication of statutory language — even if the misapplication is willful and flagrant — has less resonance as a ground for removal than a constitutional infraction. In either case, Trump would surely bluster and denigrate the judges, but a well-reasoned judicial repudiation of Trump’s overreach could stiffen the spines and harden the resolves of Republican legislators now too timorous to do what most know is right.

Impeachment for Concealing the Mistresses? Not Now, Maybe Later

22 Wednesday Aug 2018

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By Frank Bowman

On August 21, 2018, Michael Cohen, Mr. Trump’s former lawyer, pled guilty to eight felony charges, including two campaign finance violations.  The last two impose criminal liability for Mr. Cohen’s role in paying two women involved in affairs with Mr. Trump to prevent their stories from becoming public before the election.  Critically, during his plea colloquy with the judge, Mr. Cohen stated under oath that, “I participated in this conduct … for the principal purpose of influencing the [2016 presidential] election,”  and acted “in coordination with and at the direction of a candidate for federal office” — Mr. Trump.

Cohen’s statement, if true, means that Mr. Trump is guilty of a conspiracy to violate election law under 18 U.S.C. Sec. 371, and of the election law violations themselves under a complicity theory, 18 U.S.C. Sec. 2.  Of course, as has been discussed ad infinitum over the past year, the Justice Department has a policy not to indict a sitting president and there is no indication that they intend to deviate from that policy now.

So lots of folks (including Chuck Todd of NBC, Bret Stephens of the NY Times, and my energetic student and blog co-author Sam Crosby) have jumped immediately to the suggestion that these campaign finance violations constitute proper grounds for impeachment.  I disagree, for both constitutional and political reasons.  At best, depending on how the Mueller investigation finally plays out, the payoffs could form part of a plausible impeachment argument.

First, some background.  The constitution defines impeachable conduct as “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are crimes, but “high crimes and misdemeanors” need not be.  The phrase is a term of art adopted from British parliamentary impeachments and was not limited to criminal conduct. Two centuries of American usage have confirmed this point. Commission of a crime is not a necessary precondition for impeachment.

Conversely, not every violation of the criminal code is impeachable. The constitution speaks of impeachment for ‘”misdemeanors” — or perhaps only “high misdemeanors” — but it is well nigh impossible to think of any modern crime classified as a misdemeanor that would justify removal of a president.  Jaywalking. Shoplifting stuff worth less than $300. Driving under revocation. Punching somebody in the nose in a fit of anger.  All misdemeanor crimes. But preposterous as grounds for impeachment.

Not even all felonies are proper grounds for impeachment. The basic rule that has evolved over the years is that “high crimes and misdemeanors” are serious offenses that either endanger the political order or demonstrate an official’s manifest unfitness to continue in office — which if the official is the president necessarily endangers the political order.

This is the lesson of the Clinton affair.  Did Bill Clinton commit the felony of perjury when he lied about sex with Monica Lewinsky? Surely.  He was impeached by the House of Representatives for doing so.  Yet he was acquitted by the Senate.  Not because he didn’t lie, but because many senators just didn’t think lying about sex was sufficiently important to merit removal of a president.

The parallel to Mr. Trump’s situation is plain.  Trump was engaged in extramarital sex.  He wanted to hide it. He arranged to pay off one of them and to reimburse the publisher of the National Enquirer for its payments to the other for the rights to her story.  Neither the sex nor even the payments were in themselves unlawful.  What made Michael Cohen a felon is that paying off the women to aid a candidate is a political contribution.  One of the payments was apparently made by the Trump Organization, and corporate contributions made directly to presidential candidates are illegal.  The other payment (to “Stormy Daniels”) was made by Cohen personally, but it far exceeded the legal limit of $2,700 per person per candidate.  Cohen made one payment and arranged the other.  Trump allegedly asked that he do it.  Hence, two crimes.

But the crimes were in the payments.  One from an illegal source, the other in an illegal amount.  What they bought — concealment of embarrassing sexual escapades — is completely irrelevant under election law.  Cohen (and Trump) would be equally guilty if the money was used to buy a shipload of red MAGA hats.

In Mr. Clinton’s case, his Republican opponents endlessly recited the mantra, “It’s not the sex. It’s the lying under oath.”  Here, Mr. Trump’s pursuers could (and some surely will) say, “It’s not the sex, it’s the concealment in violation of election law.”

One can argue that Trump’s violation of laws designed to protect the integrity of elections is more indicative of unfitness for office than Clinton’s perjury because Trump’s offense relates to the democratic process.  That is a key point, and I’ll return to it in a moment.  But the fact remains that the essence of Cohen’s payoffs of Trump’s former inamoratas is extramarital sex and a guy trying to cover it up.  The parallel to Clinton is just too strong for the Democratic Party to press for impeachment on this ground.  The cries of hypocrisy would be too loud … and they would in large measure be justified.

But what about the fact that Cohen says Trump helped him violate election law — statutes designed to protect the integrity of the democratic electoral process ?  The Founders were quite clear that efforts by a presidential candidate to corrupt the process by which he was selected would be impeachable.

At the Constitutional Convention, George Mason (who introduced the phrase “high crimes and misdemeanors” into the constitution) maintained that a president who “procured his appointment” by corrupting the “electors” must be impeachable. Gouverneur Morris made the same point. 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 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 two large caveats.

First, 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 can’t 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.

Second, 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.

Mistress-payoff election violations are too inconsequential (and too obvious a parallel to the Clinton debacle).  To figure at all in a serious impeachment case, those payoffs would have to be part of a larger pattern of  illegal or plainly illegitimate conduct designed to give the candidate an unfair advantage or to deceive the electorate.  Better yet, they should be part of a pattern of conduct that does not merely give advantage to a candidate, but places him under an obligation to some person or entity or foreign power whose interests are inimical to the United States.  In short, all the stuff that Robert Mueller is looking into.

The suspense continues….

Trump’s Foreign Policy Is Impeachable

12 Thursday Jul 2018

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By Frank Bowman

By any objective measure, Donald Trump’s conduct of American foreign policy, particularly over the past six months or so, has been a catastrophe.  He has persistently — and quite consciously — alienated our most faithful traditional allies, disrupted critical trade arrangements, and undermined vital security relationships both in Europe and across the globe, while at the same time cozying up to vicious dictatorships and promoting authoritarian rulers even in recently democratic states.  He is systematically destroying a world order created over seventy years by American statesmen of both parties, an order that has not only maintained peace among the great powers and seen steadily improved standards of living worldwide, but has already made America first among the nations of the earth.

But what, you may ask, can be done about it between now and the 2020 election?  The answer, as always when dealing with this catastrophic man, is nothing … at least until Democrats win at least one house of Congress and at least some Republicans are sufficiently shamed by their craven abandonment of every foreign policy principle they ever claimed to stand for to join with Democrats in blocking Trump’s demolition of America’s position in the world.

If such a (concededly unlikely) epiphany were to occur among Trump’s Republican abettors — most likely as a result of a midterm electoral drubbing — then there is a remedy for Trump’s foreign policy carnage.  Impeachment.

This suggestion will, of course, be dismissed by the Trumpian chorus as a wild liberal fever dream. Certainly, the political obstacles to successful impeachment on any ground are daunting. But as a constitutional matter, indeed as a matter of the original intention of the Framers, there is no serious question that a president is impeachable for activities in the foreign policy sphere that seriously undermine the national interest.

Impeachment is a British invention, employed by Parliament beginning in 1376 to resist the general tendency of the monarchy to absolutism and to counter particularly obnoxious royal policies by removing the ministers who implemented them.

During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they wrestled over what conduct should be impeachable. Various formulations were advanced.  As the convention rounded into the home stretch, the phrase that had taken hold was “treason or bribery.”

George Mason objected because he thought “treason and bribery” far too narrow.  Mason was a student of British impeachment and had authored the post-revolutionary impeachment provisions of the Virginia state constitution.  He wanted a federal impeachment remedy analogous to British practice at least in the conduct it covered, even if not in the sorts of brutal personal punishments Parliament could impose.

“Treason,” Mason said, “will not reach many great and dangerous offences. Hastings is not guilty of treason.” He was referring to the impeachment trial of Warren Hastings, Governor General India, just about to start in England. Mason wanted American impeachments to reach beyond the two indictable crimes of treason and bribery to important breaches of public trust in both the domestic and foreign sphere, the kinds of offenses charged against Hastings.

Mason’s solution was to add the word “maladministration” after bribery. But James Madison rose to object, saying, “So vague a term will be equivalent to a tenure during pleasure of the Senate.”

Mason thought the matter over and came back with a compromise. Omit “maladministration” but add to treason and bribery “other high crimes and misdemeanors.”  The new language passed 8 states to 3.

Mason’s choice of “high crimes and misdemeanors” was not whimsical.  Rather, he lifted it from British practice where, beginning in the 1600s, Parliament increasingly (though not invariably) used this phrase to describe conduct it charged as impeachable.  As a result, one of the perennial arguments in American impeachments is over whether the Framers intended “high crimes and misdemeanors” as a term of art limiting impeachable conduct to only those misdeeds impeached by Parliament prior to 1787.

My study of both British and American impeachments convinces me that “high crimes and misdemeanors” does not limit Congressional impeachment power to the necessarily idiosyncratic and antique list of misdeeds Parliament had addressed by 1787.  Both Parliament and the Framers were acutely conscious that the sorts of dangerous public misconduct for which impeachment is a necessary remedy could not easily be described in advance.

However, the Framers’ choice of “high crimes and misdemeanors” does set the baseline minimum for the scope of American impeachments. In other words, even if one accepts both the originalist approach to American constitutional interpretation and that the founders meant to restrict American impeachment within the boundaries set by British practice, that means American officials are properly impeachable for at least the range of conduct covered by British practice.

A persistent theme in British impeachments was the charge that the impeached minister had pursued a policy at odds with the nation’s basic foreign policy interests.  Impeachments on this ground were a constant beginning with the charges against William de la Pole in 1450 for his role in arranging the marriage of Henry VI to Margaret of Anjou.  The Duke of Buckingham was impeached in 1626 in part for loaning English ships to the French to employ against the Protestant Huguenots at Rochelle.  In 1678, the Earl of Danby was impeached for assisting King Charles in negotiations with France for British neutrality in the Franco-Dutch War.  Lords Oxford, Bolingbroke, and Strafford were impeached in 1715 for their advocacy of the Treaty of Utrecht, which was widely despised as selling out Britain’s Dutch allies in favor of making accommodations with Britain’s traditional enemy France. And Warren Hastings’ 1787 impeachment, so central to George Mason’s thinking, centered on fundamental disagreements about the proper relationship of Great Britain to its Indian possessions and the states that abutted them.   

Over and over again, Parliament employed impeachment to assert an authority independent of the royal executive to define the nation’s true foreign policy interests. That Congress has believed itself to have similar authority is demonstrated by the first impeachment in American history, that of Senator William Blount, charged in 1797 with conspiring to assist the British in acquiring Spanish territory in Florida.  Blount was acquitted, but only because there were doubts that senators are “civil officers” subject to impeachment and because he had already resigned.

President Trump’s disparagement or outright abandonment of long-established defense and trade relationships with democratic states in Europe, the Americas, and Asia in favor of self-destructive mercantilism, “America First” isolationism, and a growing affinity for authoritarian regimes such as Russia, China, Hungary, Turkey, and the Philippines is far more destructive of American interests than Senator Blount’s failed Florida adventure or any of the policies for which Parliament routinely impeached royal ministers.

A Congress with any sense of America’s true interests, or indeed with any sense of responsibility for the continued peace and prosperity of the world in general, would be entirely within its constitutional authority to impeach Donald Trump.

 

 

 

 

The Logan Act: A Derelict Statute Robert Mueller Should Shun

06 Wednesday Dec 2017

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The following post first appeared today as an article on Slate.

The Logan Act is a 1799 statute that makes it a crime for a U.S. citizen to contact agents of a foreign government for the purpose either of influencing that government’s policies in disputes with the United States or of defeating U.S. policies. In a New York Times op-ed piece on Monday, Professors Daniel Hemel and Eric Posner argue that the Logan Act remains good law, despite the fact that no one has ever been successfully prosecuted under it. They contend that former national security advisor Michael Flynn violated it during the transition period by secretly contacting the Russian ambassador and asking that the Russian government not respond sharply to Obama administration sanctions against Russia for meddling in the 2016 election. They suggest that Trump son-in-law and senior advisor Jared Kushner is at risk of being indicted and imprisoned under the Logan Act. And they contend that, if Trump violated the Act, he would be impeachable on that ground.

I agree with the first two points. The Logan Act remains on the books and long disuse does not automatically invalidate it. Likewise, General Flynn did violate the statute. He and the other transition team officials mentioned in Flynn’s plea documents plainly sought to influence the policies of foreign governments or to defeat U.S. policies.

That said, much as I admire Hemel and Posner, they are wrong to think that Special Counsel Robert Mueller should consider indicting anyone under the Logan Act, and equally wrong to think that a Logan Act violation would be a tenable ground for impeaching a president. More importantly, their focus on a statutory obscurity like the Logan Act exemplifies an error a good many Trump opponents are making—fixating on the technical violation of a criminal statute as a basis for impeachment.

As for Mueller, he and his team have two intertwined objectives. The first is to investigate and prosecute crimes connected with Russian interference in the 2016 election. The second objective, unstated in his mandate but equally significant, is to ensure that the results of the investigation will withstand—at least in the eyes of rational observers—the inevitable allegations of political bias. Employing the Logan Act would defeat this crucial second objective.

There are good reasons why the Logan Act has not been successfully invoked in more than 200 years. The primary one is that it is violated routinely and enforcing it would contravene well-established norms of political behavior.

Consider, as but one example, the plethora of private persons and organizations interested in U.S.-Israeli relations. Lobbying groups like the American Israel Public Affairs Committee and J Street are routinely involved in disagreements between Israel and the United States. Sometimes they align with the policies of the administration of the day in Washington. Sometimes they oppose those policies as inimical to the well-being of Israel.  Regardless of the issue or the prevailing degree of comity between the U.S. and Israeli governments of any given moment, American Jewish groups are constantly in “correspondence or intercourse” with official representatives of Israel.

The same could be said of any number of other associations. Many Latino groups oppose current U.S. immigration policy. Does anyone seriously suppose that representatives of such groups should be criminally prosecuted if they met with, say, the Mexican ambassador, and urged the Mexican government to continue opposing Trump’s infamous wall? Amnesty International and Human Rights Watch vigorously opposed the U.S. practice of torture and so-called “extraordinary rendition” during the Iraq War and its aftermath. Should American members of these organizations be prosecuted if they met with representatives of foreign governments urging them, in the words of the Logan Act, to “defeat the measures of the United States.”

Criminal prosecutions for this ordinary form of American political behavior would excite clamorous public objections, invite comparison to efforts by authoritarian regimes like Russia to suppress domestic contact with Western open society groups, and draw immediate constitutional challenge on either First Amendment or overbreadth grounds. The fact that in Flynn’s case the American contacting foreign agents had quasi-official status as a member of a presidential transition team made it rather more likely that the meddling would have some practical effect. But transition contacts with foreign governments, complete with signals of varying degrees of directness about impending policy changes, are hardly unprecedented, even if they are poor form. And it’s hard to see why a member of a transition team should be prosecuted when others never have been.

This is not to say that contacts between members of the Trump team and Russia during the transition period were necessarily innocent. They may end up as components of some criminal charge. But Mueller and his people are not likely to complicate any case they bring by basing it on a controversial and constitutionally doubtful relic like the Logan Act. Doing so would be a gift to those who seek to question the legitimacy of their work. And these guys seem unlikely to score that kind of own goal.

For similar reasons, a Logan Act violation is not a plausible impeachable offense. It is a crime, yes, but, as the Clinton affair taught us, not all crimes are “high crimes and misdemeanors.” Conversely, not all “high crimes and misdemeanors” are violations of the criminal code. For example, James Madison maintained that abuse of the pardon power was impeachable. Edmund Randolph thought the same of receiving foreign emoluments. George Mason, who proposed the phrase “high crimes and misdemeanors,” was most concerned with what he termed “attempts to subvert the constitution.” Speaking generally, an impeachable offense is conduct that is both grave and involves genuine danger to the constitutional order. The danger can arise either if the conduct itself endangers constitutional order—as for example Nixon’s efforts to use intelligence and law enforcement against political enemies—or if the conduct indicates that the president is personally unfit to continue service. A violation of the Logan Act—which has been virtually ignored without consequence for two centuries—just doesn’t cut it.

Of course, if Trump were shown to have “colluded” with the Russians to rig the election and if, in gratitude for the help, he made policy concessions of some sort, either during the transition or later, the concessions could be part of an argument that Trump’s pre-election behavior constituted an impeachable offense.  Founder George Mason observed that corrupting the “electors” – by which he meant members of the Electoral College — would be impeachable.  In the social media age, one could fairly argue that some kinds of cooperation with a foreign power to affect voter decisions is a modern equivalent.  But in such a case, the impeachable offense would be the election meddling in collusion with a hostile power and the giving of the quid pro quo.  Adding the Logan Act into the equation would merely confuse the issue and weaken the case.

The fact that brilliant legal scholars like Hemel and Posner are arguing for reanimation of a legal derelict like the Logan Act seems likely to reinforce two themes regularly advanced by Trump’s defenders—first, that Trump opponents are mining the federal criminal code for nitpicky crimes that can be stretched to cover normal political behavior, and second, the popular misconception that impeachable “high crimes and misdemeanors” must be indictable crimes.

The reality is that, however thorough and professional Mueller’s team may be, they have a limited brief—to investigate the Trump campaign’s involvement with Russian interference in the 2016 election. They are turning up a lot of dodgy behavior, but it is entirely possible, indeed likely, they will never produce indisputable evidence that Trump himself committed the kind of plain, unambiguous crime that people across the political spectrum will accept as an impeachable offense.

Sure, it’s possible that Mueller will find that Vladimir Putin has had leverage over Trump for years, or that the efforts of Trump’s bumbling crew of children, in-laws, and campaign sycophants to cadge Clinton dirt from the Russians rendered Trump subject to Russian blackmail. But face it—that kind of dramatic, unambiguous outcome is improbable. The current wishful obsession with Mueller’s work merely invites crushing disappointment among Trump’s opponents and cries of “I told you so” from his defenders. What’s more, a narrow focus on pre-election conduct in a way that relies on dubious laws like the Logan Act diverts attention away from what ought to be a primary focus of any effort to impeach Trump—his near-daily post-election assaults on the norms of American constitutional order. It is that behavior that makes Trump a constant danger to the Republic. And it was to defend against precisely that kind of danger that the Founders gave us the power to impeach a president.

Frank Bowman

Foreign Emoluments, the President & Professor Tillman

27 Friday Oct 2017

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By Frank Bowman

Impeachment aficionados will be aware that a group calling itself Citizens for Responsibility and Ethics in Washington (CREW) has filed suit in the Southern District of New York seeking a declaration that Mr. Trump’s copious and lucrative business transactions with foreign governments and entities violate the Foreign Emoluments Clause of Article I, Section 9, which reads as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.

Leaving to one side the question of whether the CREW plaintiffs have standing to bring the action, the central dispute is whether money paid to a president as a result of commercial transactions is a prohibited emolument.

As discussed on this site earlier in the year, Seth Barrett Tillman, an industrious professor from the National University of Ireland – Maynooth, has opened a second front in the emoluments battle with his claim that the foreign emoluments clause doesn’t apply to the president, or indeed to any elected federal official such the vice-president or members of congress.  In recent weeks, Professor Tillman has won two victories, one minor and another potentially less so.

His petit coup, recounted in a recent New York Times article, involved a dispute over the provenance of certain documents allegedly signed by Alexander Hamilton.  To make a long story short, in 1792, the Senate asked Hamilton, then the Secretary of the Treasury, to provide a list of all salaries and emoluments of “civil offices under the United States.” In a letter, Hamilton provided a list that included executive branch appointees, but not the president or vice president. Prof. Tillman contends that this letter is proof that Hamilton believed that the president is not a “person holding any Office of Profit or Trust under [the United States]” for purposes of the foreign emoluments clause.

You may think that this is a pretty thin argument (and as discussed below, it is), but a group of distinguished legal historians led by Professor Jed Shugerman who rejected Tillman’s interpretation in their amicus brief made an embarrassing mistake.  They pointed to a later 1793 document in government archives which does list the president and vice-president as holding civil offices under the United States and which appears to bear Alexander Hamilton’s signature.  They trumpeted this second document as conclusive disproof of an important prong of the Tillman position, only to have Tillman show that the second document almost certainly was not signed by Hamilton, but by some anonymous government functionary. Red faces abounded.  And the legal historians (very graciously) issued apologies for impugning the integrity of Tillman’s archival research.

Professor Tillman’s potentially more significant victory came in a letter from the Department of Justice to the judge in the CREW lawsuit in which DOJ stated that it is not conceding that the Foreign Emoluments Clause applies to the president.  This is notable because the Department’s position has traditionally been to the contrary, as most recently embodied in a 2009 memo from the Office of Legal Counsel opining that the president is “surely” covered by the clause.  So far, the Department has not reversed its 2009 opinion or affirmatively pressed the claim of presidential exemption, but the letter opens that possibility.

So does Tillman have a good argument?

In a word, no.

Tillman’s claim that the Foreign Emoluments Clause doesn’t include the president is based on two doubtful premises.

First, he contends that the phrase “office of profit or trust under [the United States]” doesn’t include the president because, he says, in English practice, the phrase “office under the Crown” referred not to the King or to elected offices, but only to appointed offices whose authority derived from the appointing hereditary sovereign.  But in the United States, the sovereign is not the president, but the people as a whole, or if one wants to take a strongly federalist view of the matter, the union of states represented by the elected central government.  All American officeholders — including the president — hold office “under the United States” because they derive authority from, and are not the sources of, the general government’s democratically legitimated sovereign power.

And even if this were not self-evidently the case, there is no plausible founding-era evidence that the drafters or ratifiers of the constitution viewed the phrase “office of profit or trust under” the United States in Professor Tillman’s peculiarly Anglophile sense.  Indeed, as the legal historians noted, the only direct expression of opinion by constitutional founders expressly endorses the view that the president is covered by the Foreign Emoluments Clause. During the Virginia ratifying convention, Edmund Randolph and George Mason plainly stated that presidents are bound by the clause, and Randolph, who would become Washington’s attorney general, went further to declare that a president who received foreign emoluments could be impeached for doing so.

The sole statement from a founding-era figure to which Tillman can point is the Hamilton response to the Senate inquiry.  But, as the legal historians convincingly explain, the Senate was asking for an accounting of “civil offices” and their salaries for a particular reason.

The request came in 1792, at the end of President Washington’s first term and towards the close of the second session of Congress. The term “civil offices” is distinct from the phrase in the Foreign Emoluments Clause (“office of profit or trust under [the United States]”), but matches the language of Article I, Section 6:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The most plausible explanation for the Senate request is that the Senate wanted to know which “civil offices” federal legislators would be barred from accepting, and which offices those standing for election to Congress for the first time in 1792 would be obliged to surrender if elected.  The presidency, being elective rather than appointive and thus irrelevant to the point of the inquiry, Hamilton did not include it.  What we can be absolutely sure of is that the Senate did not ask for, and Hamilton did not give, an opinion on whether the president is covered by the Foreign Emoluments Clause.

Before moving to Tillman’s next point, it is worth pausing on Article I, Section 6, to consider one of the many unpalatable implications of his theory.  If he is right and the phrase “office under the United States” does not include the president, then Article I, Section 6, does not bar the president from serving as a member of Congress while also serving as president. Which is ridiculous inasmuch as it would utterly destroy the constitution’s separation of powers.  But it is the unavoidable implication of Tillman’s argument that the framers used “office under the United States” as a term of art excluding the president.

Second, and this is the real meat of Tillman’s argument, he points to a handful of incidents in which early American presidents accepted ceremonial gifts from foreign governments or their representatives.  Washington accepted a key to the Bastille from the Marquis de Lafayette and from Louis XVI a portrait of that ill-fated monarch. Jefferson accepted a bust of Czar Alexander I.  Madison accepted a pair of pistols from a South American revolutionary, which he apparently passed on to his successor, James Monroe.  Tillman argues that these gifts prove that Washington, Jefferson, Madison, and Monroe all believed that the Foreign Emoluments Clause didn’t apply to the president, and he contends that these early incidents outweigh the roughly two centuries of subsequent practice in which both presidents and congress expressly recognized the applicability of the clause to the presidency.

Professor Tillman is deadly earnest in professing the interpretive importance of these incidents, but the moment one takes a deep breath and steps back to gain perspective, it’s plain that there’s little substance to the argument.  In the first place, as I wrote several months ago:

After all, the point of the [Foreign Emoluments] clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

But the more important, and I think dispositive, point is this: If Tillman is right, then the framers wrote into the constitution a provision that would prohibit, say, the U.S. ambassador to France from accepting a jeweled snuff box from the French government, but would allow the King of France to award the President of the United States a title of nobility accompanied by a grant of land and revenues.  According to Tillman, King Louis XVI, rather than sending George Washington a portrait, could have tried to secure U.S. opposition to the Revolution of 1789 by declaring Washington the Duc de Haiti entitled to a percentage of the French crown’s revenues from that rich, sugar-producing colony.  Or George III of England could have begun the process of seducing America back into the British orbit by bestowing on Vice President Aaron Burr (a man notoriously open to extra-curricular peculation) the title of Baron of Barbados, with ownership of several large and lucrative sugar plantations.

These hypotheticals sound absurd to modern ears, but the problem of divided loyalties and overt corruption created by awards of foreign titles, lands, and revenue to heads of state and powerful notables was endemic to Europe from the Middle Ages through the 18th Century and would have been intimately familiar to the framers.

For centuries, English kings held French titles of nobility which, depending on the period, gave them French lands, which they held as feudatories of the French king, or even claims on the French crown.  Untold thousands of Englishmen and Frenchmen died in the wars fought over those territorial and dynastic claims. George III, the boogieman of the revolutionary generation, was simultaneously King of England, King of Ireland, and Duke and prince-elector of Hanover. And English critics were always troubled by the disposition of kings of the Hanoverian line to be drawn into German intramural squabbles. Phillip II was at various points King of Spain, Portugal, Naples, and Sicily, and Duke of Milan and lord of the seventeen provinces of the Netherlands. His far-flung dynastic commitments and devout Catholicism were the impetus for decades of near-constant warfare.  Endless additional examples could be cited, but the point is that the last thing the American framers would have wanted is an elected chief executive whose judgment might be distorted by enjoyment of an hereditary title or estate granted by a foreign power.

The even more acute problem that plainly concerned the founding generation was the seduction of both heads of state and lesser notables by rewards (or bribes, depending on your point of view) from foreign powers.  The practice was such a common aspect of European diplomacy as to scarcely merit remark on that side of the Atlantic. For example, the English Duke of Marlborough, Winston Churchill’s famous ancestor, was rewarded for his military successes with the title of Prince of the Holy Roman Empire and Prince of Mindelheim (a German principality). The entire European ruling class was entangled in a web of conflicting loyalties.

The American founders not only rejected hereditary aristocracy as a feature of the American future, but recoiled from the prospect of royal briberies.  In their brief, the legal historians note that Gouverneur Morris expressly cited the secret 1670 Treaty of Dover in which the King of England was induced to join France in its war against Holland both by providing him with a French mistress and paying him large sums to eliminate his debts.  Said Morris:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Morris was not discussing the foreign emoluments clause, but the passage reveals the founders’ acute awareness of the dangers of foreign payments to a head of state.  And it casts a revealing light on Professor Tillman’s primary defense against the practical absurdity of his position.  Tillman contends that it would have made sense to the framers to exclude the president from the foreign emoluments clause because a failure to do so would subject the country to diplomatic embarrassments attendant upon a constitutionally-mandated policy against the common European practice of accepting token diplomatic gifts.  But the whole point of the Foreign Emoluments Clause was to set the United States on a new path, free of the endemic corruption of European practices of the time.  To suggest that a fear of transitory diplomatic embarrassment would move them to gut this objective by permitting the most powerful officers of the United States to accept foreign titles and money is, frankly, absurd.

In the end, Professor Tillman deserves the respect due a diligent and inventive controversialist.  But his argument cannot stand up to serious examination.

James Madison on abuse of the pardon power as an impeachable offense

29 Tuesday Aug 2017

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In several recent posts, I have made and amplified on the case that Mr. Trump’s pardon of former sheriff Joe Arpaio is an impeachable offense.  Some commenters here and on other forums stoutly resist the idea that any exercise of the pardon power can be an impeachable offense.  They insist that, because Article II, Section 2 of the constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” then this textual grant of the pardon power makes the president immune from impeachment for its misuse.

In a previous post, I explained why, as a matter of constitutional logic, this position is wrong.  Put simply, the impeachment clauses were inserted into the constitution precisely in order to provide a constitutional remedy for misuse of constitutionally granted powers.  Merely because an official act is within the scope of the official’s constitutional power does not deprive the nation of a remedy for misuse of that power. And sometimes the remedy for misuse of the conceded power is not reversal of the particular official act, but removal of the official – impeachment. For example, if a judge dismisses criminal charges against a defendant after jeopardy has attached, even if he does so groundlessly, whimsically, even insanely, the double jeopardy clause prohibits retrying the defendant. There is no remedy for outraged justice in the particular case. But the judge can plainly be impeached for this behavior. Presidential pardons are no different. Once issued, they cannot be negated. But if the pardon offends constitutional values, the president can be impeached for issuing it.

I am hoping that folks unpersuaded by this logic, folks who think that, as several commenters have put it with varying degrees of politeness, that I’m just “making stuff up,” might be persuaded by James Madison, the principal architect of the constitution’s scheme of inter-branch checks and balances.

During the Virginia ratifying convention for the federal constitution, George Mason expressed concern about the breadth of the pardon clause and indeed about the very idea of giving pardon power to the president.  In language some may find eerily prescient of the current moment, he said:

Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic. If he has the power of granting pardons before indictment, or conviction, may he not stop inquiry and prevent detection?

James Madison responded:

There is one security in this case [a misuse of the pardon power by the president] to which gentlemen may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President.

In short, Madison said that the remedy for presidential misuse of the pardon power was impeachment.  I stand with Madison.

For those interested, the exchange can be found at http://teachingamericanhistory.org/ratification/elliot/vol3/june18/