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Lying as an impeachable offense – Part III: Chronic or pervasive falsehood

08 Sunday Oct 2017

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In previous posts, I have considered two types of presidential lie as impeachable offenses: criminally indictable falsehoods and unindictable official falsehoods.  Here I address a third category — lies that are neither indictable nor, strictly speaking, official, but that are so frequent as to amount to a pattern of chronic or pervasive falsehood.

This third category is both the easiest and hardest for those who would like to see Mr. Trump impeached.  On the one hand, as I said in the first post in this series, “The simple fact is that Mr. Trump lies all the time.  Ceaselessly.  Unrepentantly.  About pretty much everything. Big things.  Little things.  Public matters and private ones.”  Both the New York Times and the Washington Post have published lengthy lists of Mr. Trump’s falsehoods. The New Yorker has an entire series devoted to debunking his more notable prevarications. Thus, proof of the factual basis would seem easy (though as discussed below, it may prove harder than it appears).

On the other hand, the proposition that a president can be impeached, not for one specific criminal or official lie, but for being a liar, is not only novel, but would obviously be subject to abuse unless well grounded in constitutional theory and carefully limited in scope.

Let’s begin by considering how executive lies might fit into the history and function of impeachment in the American constitutional scheme.

English impeachment

“Impeachment” in the American constitution is a lineal descendant of a weapon first employed by English parliaments in the long struggle over whether the monarchy would be absolutist or would govern in tandem with hereditary, ecclesiastical, and economic elites represented in the legislature.  A parliament that disapproved of the king’s policies could frustrate those policies to some degree by, for example, refusing to fund unpopular royal projects.  But, the monarchy being hereditary, if the king forged ahead despite parliamentary opposition, he could not be removed absent a genuine, and possibly quite bloody, revolution.

Hence, those opposed to the policies of the king’s government indulged the fiction that it was not the king who was at fault; rather, he was being misled by incompetent or malicious ministers who could be removed as a signal of parliamentary displeasure.

The two procedural vehicles most often used to remove offending ministers of the Crown were bills of attainder and impeachment (though bills of attainder could be, and often were urged by the Crown to punish the king’s enemies). Both bills of attainder and impeachment could carry very severe penalties, extending beyond removal from office to fines, forfeitures, prison, or even death. One customary distinction between the two was that a bill of attainder could be unapologetically retrospective — meaning that Parliament could pass a bill of attainder punishing someone for behavior that violated no previously enacted law — while impeachment came to be thought of as possible only if the defendant’s acts were contrary to law, or at least well-settled norms, when committed.

The drafters of the American constitution disapproved of bills of attainder, both because of their historical employment as instruments of royal oppression and because they offended a foundational principle of the rule of law — nulla poena sine lege — there should be no punishment for something not already prohibited by law.  This disapproval manifested itself in Article I, Sections 9 and 10, which prohibit both Congress and state governments from enacting ex post facto laws or bills of attainder.

But the founders, after much debate, concluded that some mechanism was needed to remove a misbehaving president, as well as judges and subordinate executive officers.  Hence, the impeachment clauses in Articles I and II.

The Founders and the relation of public virtue to presidential impeachment

The impeachment process installed in our constitution was plainly influenced by the founders understanding of English precedents, but in its details it is a uniquely American creation.  English influence is obvious in the choice to echo parliamentary practice by giving the “lower” or “more democratic” legislative chamber the power of initiating an impeachment and the power to try impeachments to the “upper” chamber.  On the other hand, the founders were keen to avoid the bloody example of some English impeachments by specifying that impeachment is strictly a political remedy limited to removal of the offender from office.  Article I, Section 3, specifies that:

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

Officers who are impeached and removed for conduct otherwise criminal can be charged and punished for such conduct, but only in a separate proceeding in regular courts.

The decision to restrict the consequence of impeachment to loss of office tells us something about the kinds of conduct the framers meant to be impeachable.  They adopted the famously enigmatic phrase “high crimes and misdemeanors” as the standard for executive impeachability.  I think it is fair to conclude that the framers were content with this imprecise and rather elastic definition of impeachable offenses precisely because they designed impeachment as a political tool that excised dangerous officials from office, but did not expose them to death, imprisonment, or financial ruin.

High Crimes & Misdemeanors:  Throughout the constitutional convention, various formulations were proffered to define the scope of impeachable conduct. The final modification occurred in a famous exchange between George Mason and James Madison.  Mason suggested “treason, bribery, or maladministration.” Madison objected that, “So vague a term will be equivalent to a tenure at the pleasure of the Senate.” Mason withdrew “maladministration” and substituted “treason, bribery, or other high crimes and misdemeanors.” The framers and ratifiers seem to have interpreted this formulation to mean that a president should not be impeached for honest mistakes of policy, or indeed for pursuing in good faith courses with which a majority of the legislature heartily disagreed. For example, Edmund Randolph observed at the Virginia ratifying convention that a man should not be impeached “for an opinion.”

That said, the framers plainly thought of impeachment as a vital shield against executive misconduct. James Madison in Federalist 39 lists the impeachability of the president as among the guarantees of republican government. Alexander Hamilton makes the same point in Federalist 77.  It is also plain that the framers conceived of impeachment as reaching beyond ordinary crimes to a range of misbehavior and abuses of power. In Federalist 65, Hamilton described impeachment as “a method of NATIONAL INQUEST into the conduct of public men,” and famously described impeachable offenses as being “of a nature which may with peculiar propriety be denominated POLITICAL.” In Federalist 66, Hamilton characterized impeachment “as an essential check in the hands of [congress] upon the encroachments of the executive.” Although Madison’s objection to “maladministration” as overly broad led to Mason’s alternative of “high crimes and misdemeanors,” Madison believed impeachment necessary because he  “thought it indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the chief magistrate.”

The use of the term “perfidy” is suggestive because concern with the fundamental honesty of the president resonates with the statements and values of other founders. Theirs was a generation that placed great stock in the virtue of public men.  Indeed, their choice of an electoral college as the means of electing presidents was based in large measure on their faith that a group of the “best” men drawn from the ruling elites of the several states would provide a wiser and more informed judgment of the character of a prospective president than the unmediated assessment of ordinary voters, who might be swayed by the arts of the demagogue.  They were not naive, of course, and as practical politicians would have had no foolish expectation that every word from an elected official’s mouth would be 100% true.  Still, I suspect they would view habitual public dishonesty on subjects relating to the exercise of presidential power as disqualifying in a candidate and impeachable in an incumbent.  As Edmund Randolph said of the president, if “he be honest, he will do what is right, if dishonest, the representatives of the people will have the power of impeaching him.”

In the end, the evil against which the impeachment remedy was aimed was presidential conduct that undermines the constitutional order. George Mason’s insistence that the range of impeachable offenses should extend beyond treason was grounded in the recognition that, “Attempts to subvert the Constitution may not be treason.”  If, therefore, a pathologically dishonest chief executive undermines constitutional order, then impeachment on that ground would be consistent with the views of the founding generation.

Chronic, but non-criminal, lying 

Given this historical background, should chronic or pervasive, but non-criminal, lying be an impeachable offense?  We begin by recapping the conclusions of the two previous posts on impeachable lies.

First, some, but apparently not all, indictable lies are impeachable offenses.  That at least some criminal lies would also be ground for impeachment is consistent with the English understanding that impeachment, as distinct from bills of attainder, should be based on conduct previously understood to be an offense. However, the Clinton case teaches us that, in the United States, even indictable lies may not be impeachable if they involve essentially private matters or are told in a highly politicized, and perhaps legally compelled, setting like the civil and criminal litigation that arose out of Paula Jones’ sexual harassment suit against President Clinton.

Second, it is fairly plain (though the precedent is sparser) that non-criminal lies told to congress or other government actors for the purpose of affecting government policies or decisions can be impeachable.  This assertion is at least superficially in tension with the English idea that impeachment should be based on conduct previously understood to be a grave offense. But the apparent tension arises from the mistaken notion that an offense for impeachment purposes is the same thing as a statutorily defined crime.  In England, officials were not uncommonly impeached for conduct that, while understood to be wrongful for one in office, would not be chargeable as a crime in ordinary criminal courts. See, e.g., Raoul Berger, Impeachment: The Constitutional Problems 67-69 (Harvard Univ. Press 1973). In the United States, the conclusion that official, but non-criminal, lies to congress are impeachable finds support in both founding-era statements by luminaries such as James Iredell and the concrete example of the fifth of the proposed articles of impeachment of Richard Nixon (regarding lies about the bombing of  Cambodia).

The course of the Clinton impeachment and the evidence favoring the impeachability of lies to congress strongly imply that a lie – or pattern of lying – is most likely to be considered impeachable if the subject is public matters and if the falsehood is uttered in connection with the president’s official duties for the purpose of affecting decisions by government actors. This inference is also consistent with Hamilton’s characterization of impeachable offenses as political in character.

Hence, Clinton’s lies, badly as they reflected on his personal character, did not lead to conviction because they did not directly affect the course of any public issue.  By contrast, Justice Iredell was focused on the hypothetical case of a president who lied to the senate to secure ratification of a treaty, and the Nixon article of impeachment addressed the very real case of a president who lied to congress and the public about military actions in a neutral country in order to frustrate congressional oversight of the Vietnam War.  In both the latter cases, the lies, hypothetical and real, were limited to a particular topic and causally related to identifiable action or inaction on the part of the national legislature. In both cases, it is easy to see that, but for the lie, congress would, or at least might have, acted differently.  The lie becomes an impeachable offense because it was designed to distort the deliberative function of another coordinate branch of government.

Mr. Trump’s habitual prevarication presents an unprecedented problem.  The issue is not how to view one or a related series of falsehoods about one particular topic, but that Mr. Trump lies constantly about virtually all topics. Some of his untruths relate directly to particular public policy issues or proposals.  Examples include claims made in connection with the debate over the future of the Affordable Care Act that “millions of people” lost insurance coverage under the ACA and that all or portions of certain states had no insurance carrier for the ACA exchanges. Likewise, he has falsely claimed that 3 million illegal aliens voted in the last election and that the Obama Administration tapped his telephone lines in Trump Tower. And in the midst of growing tensions with North Korea, he claimed he was sending an “armada” toward Korea when in fact the carrier group in question was steaming in the opposite direction.  But many of his lies are about subjects  — the size of his inaugural crowd or whether the head of the Boy Scouts or the President of Mexico called him — that in themselves are inconsequential.  The question is whether numerous unrelated falsehoods, none of which would be impeachable standing alone, can be aggregated into an offense meriting removal from office.

Answering this question requires some reflection on the nature, purpose, and effect of presidential lies.  For an ordinary president, a particular lie may be intended to affect a decision by congress or a court or an agency or a foreign government or the electorate itself.  But, for an ordinary president, what makes the lie both effective and culpable is the background assumption that presidents customarily tell the truth on important matters, and particularly in official communications.  Only thus can the lie truly deceive. But what if the president lies constantly, demonstrably, and unashamedly, on such a broad array of topics that no sensible person — including his nominal political allies — accepts anything he says as true without independent corroboration?

In one sense, the lies of a known chronic liar may be less damaging in a particular case precisely because the liar is less likely to be believed.  But if the chronic liar is the president, his mendacity arguably undermines the operation of the government as a whole.

Chronic lying may be a political offense in the Hamiltonian sense insofar as it cripples the liar in the performance of his presidential duties. During the Clinton impeachment, it was often argued that the American president, who serves as both the operational head of government and the ceremonial and symbolic head of state, cannot function without a minimum of moral authority which is forfeit once he is proven to be a perjurer. As I wrote back then:

Presidential leadership depends in significant part on the exercise of moral authority, some inherent in the office of the presidency and some deriving from the character of its occupant. Presidential leadership also requires integrity, at least insofar as both a President’s friends and foes must have reasonable confidence that, at least most of the time, the President speaks the truth and keeps promises. Furthermore, presidential leadership demands at least some modicum of virtue, at least to the degree that the President must not violate the basic social norms embodied in the law’s proscriptions against very serious criminal offenses. Without some indefinable minimum of these characteristics of moral authority, integrity, and personal virtue, a President cannot govern.

Nonetheless, the apparent lesson of the Clinton affair is that lies about a single private matter, even if perjurious, are not enough for impeachment. The question presented by Mr. Trump is whether persistent mendacity on multiple subjects of public consequence so undermines a president’s authority that lying becomes sufficient for impeachment without an accompanying criminal violation.

I am persuaded that the answer is yes by considering that chronic presidential lies do not merely render the president himself ineffectual, but also damage every other branch and function of American government.

If the president’s subordinates in the executive branch cannot believe their boss, they will be hampered both in understanding what the president’s policies are and in executing them.  If the legislature cannot believe what the president says, it can neither legislate with confidence that it is acting based on accurate information nor be confident that its directives will be honestly executed once enacted. If the judiciary becomes convinced that the president cannot be trusted, it will be less disposed to accept government lawyers’ explanations of executive actions and more inclined to meddle in matters in which it has traditionally deferred to executive branch discretion.  If foreign governments come to believe that the American president is a liar, the confidence in the fundamental reliability of the United States that is the true foundation of a sound and effective foreign policy will begin to unravel.  If the American people conclude that the president is a congenital liar, their cynicism about government – already sadly advanced – will increase, making the successful operation of participatory democracy even more doubtful.

In sum, pervasive lying by a president tends to undermine the entire constitutional order. Accordingly, I have little hesitation in concluding that, in theory, pervasive presidential lies can properly constitute an impeachable offense.

And yet…

That said, the practical and political obstacles to impeaching a president for his mendacity alone are formidable.

First, one would have to decide which falsehoods and prevarications should count. For example, should we count only statements made after a president’s inauguration?  Or, since the point is to prove a pattern of lying, should statements made prior to assumption of office, for example during the presidential campaign, be considered?

Likewise, one would have to decide how to define the statements includable in the pattern of falsehood.  Should we include only statements that would qualify as perjury if made under oath — that is, statements of present or past fact that are wholly false and known by the speaker to be so when made?  Or could notable exaggerations be included?

What would be the required mental state? Would one have to show that the president was consciously aware of the absolute falsity of a statement when made?  Or would it be sufficient to show that the president made a statement without making any effort to determine its truth?  In short, could a president be impeached for a pattern of reckless disregard for the truth?

Since the essence of the offense would be a pattern of lies, how many lies of what type would be required to make a pattern?

How consequential would any particular statement have to be to be included in the pattern?  Could one include, for example, a lie about whether the president received a phone call from the head of the Boy Scouts about the reception of his speech to the Boy Scout Jamboree?  Or would a lie have to be about a subject directly related to an issue of public policy? If the latter, how consequential would the statement have to be?

Moreover, sometimes presidents must lie for the public good. To be entirely candid about, say, pending military operations might be unforgivable, not laudable.  How would one distinguish between the necessary and culpable lies?

Second, given that all presidents lie at least sometimes, there would have to be some comparative standard or every president would be impeachable for dishonesty.  How would one set such a comparative standard?

Third, the proof problems would be formidable and the process of collecting evidence would necessarily involve massive intrusions into the ordinary operations of the White House.  Proving that the president either knew that a particular statement was untrue or was reckless about its falsity would require discovery of all his own personal investigations into the matter and all the information and advice provided to him on the subject.  Recall the extraordinarily protracted process of investigating the single question of whether President Clinton lied about sex with Monica Lewinsky and multiply that by the dozens of alleged falsehoods that would be necessary to establish a pattern of presidential lying.

Finally, any impeachment is a fool’s errand unless the overwhelming majority of the public – including a solid majority of a president’s own political party – can be convinced that the allegedly impeachable offense occurred and is a legitimate basis for removing a president.  Mr. Trump occupies the White House today as both beneficiary and inciter of a culture of distrust of “establishment” institutions and disbelief in the very existence of objective truth.  To a distressing degree, many, perhaps most, people who are at all politically aware tend to receive their information from sources broadly congenial to their own settled views and tend to disbelieve information from sources they associate with “the other side.” There are few, if any, widely recognized neutral arbiters of public fact.

This manifests itself directly in the electorate’s views of Mr. Trump’s honesty.  In one recent poll, only 37% of all respondents said Mr. Trump is honest. But the partisan breakdown of this view is stark. Only 5% of Democrats found him honest. Among independents, 35% did so. But on September 27, 2017, after nine months of his presidency, 79% of Republicans said they viewed Mr. Trump as honest. Moreover, so cynical have we become about all elected officials past and present, that a significant fraction of the population do not believe that Mr. Trump is materially more or less honest than his predecessors.

Leaving to one side the sociological and psychological explanations for these astounding figures, they mean that any effort to impeach Mr. Trump for dishonesty alone would inevitably be viewed by many, perhaps most, Republican voters as an unsubstantiated, purely partisan endeavor.  And that, in turn, means that Republican legislators – however dishonest they personally know Mr. Trump to be – would cooperate with such an effort only at the certain peril of losing their offices.

In the end, therefore, although I am convinced that impeachment exclusively on the ground of pervasive dishonesty would be entirely constitutional, I am unconvinced that any such project is practical, politically feasible, or indeed desirable.  However, I am convinced (a) that Mr. Trump’s dishonesty may prove to be a significant feature of other impeachable offenses, and (b) that, if more concrete grounds for impeachment should ever be advanced by the House, an additional, carefully considered and crafted, count for pervasive dishonesty should at least be explored.

 

Collusion not Confirmed

05 Thursday Oct 2017

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This article, from the Washington Post, reports that the Sentate Intelligence Committee cannot yet confirm whether President Trump colluded with the Russian government. The Committee reported on their progress yesterday: a series of interviews with those who worked on Trump’s campaign and extensive document review confirmed that Russians had interfered with the 2016 election, but offered no answer on collusion.

Russian collusion is one of the most serious violations the President has been accused of so far, and could mean impeachment. However, the Senate Intelligence Committee estimates we won’t have an answer until the 2018 primaries.

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Kneeling linebackers and the path to impeachment

25 Monday Sep 2017

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Most of my writing on this site is devoted to the technical legal issues raised by Mr. Trump’s misadventures and the constitutional riddle of what constitutes an impeachable offense.  I hope readers find these discussions useful.  Nonetheless, Mr. Trump’s vulgar, tawdry, racially incendiary feud with protesting NFL players is a reminder that the path to impeachment, if it exists at all, will be opened by public sentiment, not legal argument.

Any discussion of presidential impeachment is bounded by two apparently contradictory realities. On the one hand, then-congressman Gerald Ford was right that, as a practical matter, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” In the other hand, our historical practice has been to read “high Crimes and Misdemeanors” fairly narrowly and to shrink from actually removing presidents from office.

No American president has been both impeached by House and convicted and removed by the Senate. President Nixon resigned rather than face impeachment, but only after the release of the Watergate tapes caused his public support to collapse. President Clinton survived trial in the Senate not, I think, because he was factually innocent of the charges against him. Rather, his public support remained high, indeed grew, during the impeachment controversy, and a majority of the Senate concluded that his removal from office for what most people viewed as unseemly, but not disqualifying, lying about sex, would outrage the electorate.

In Mr. Trump’s case, I have identified one provable impeachable offense — the Arpaio pardon. Others have contended that what is known of Mr. Trump’s financial entanglements and of his efforts to quash the Russia investigation amount to impeachable violations of the emoluments clauses and obstruction of justice statutes.  Evidence of other conduct that could be categorized as impeachable by serious people may well emerge over the coming months. But none of it – none of it — will matter so long as Republicans hold the House and Mr. Trump holds the allegiance of 40-some percent of the electorate as a whole and three-quarters or more of Republican voters.

No majority-Republican House will ever vote to impeach Mr. Trump, or even to investigate the question seriously.  In an earlier era, there might have been enough public-spirited Republicans to open an inquiry, if the facts were egregious enough. But the extreme polarization of the House, and the death grip on the House Republican caucus enjoyed by its right-most fringes would surely foreclose such a development. Even if the Democrats flip the House in 2018 and proceed to impeachment, conviction in the Senate would require a dozen or more Republican votes.  Those votes will never be available as long as Republican senators face a credible threat of primary challenges from the Trumpian right.

Therefore, unless and until Mr. Trump loses the active support of something approaching half of the primary-voting base of the Republican party, his lease on the White House is secure until 2020. It may not be necessary that half of all Republicans openly repudiate him, but close to half must become sufficiently disillusioned that Mr. Trump’s removal would become a matter of relative indifference rather than a cause for tribal fury.  Then, and only then, will he become vulnerable to impeachment.

Which brings us back to the NFL.  There has been a good deal of brow-furrowing analysis of the perverse cleverness of Mr. Trump’s insult campaign against kneeling NFL players.  And I suppose it is clever in the sick sense that he is managing to inflame the latent hostility of fans who obsess over the game, but nonetheless privately, even subconsciously, resent the players’ wealth and status, by reminding the fans that a whole lot of these guys are black.  Trump’s genius is the sadist’s gift of finding every raw nerve, suppressed neurosis, and healing wound in the body politic and poking at it.

Mr. Trump’s sadism secures him the loyalty of the angry and the insecure who constitute a large fraction of his political base. And I’m sure that his NFL tantrum will go down well enough with many of these. But does there come a point when he has simply gone too far?  A point when the loyalty or at least amused patience of tribal Republicans begins to crumble under the weight of the ceaseless tide of insults directed at nearly every admired figure in American life?

I certainly don’t know the answer to this question.  But I can’t help but believe that getting into a fight with Lebron James, Steph Curry, the Golden State Warriors, and the whole NFL establishment is a bad move for a guy whose base is disproportionately made of folks for whom professional sports generally and football in particular are near to religion.  It would be sickly ironic if the mass affinity for Trump that survived his insults to a genuine American hero like John McCain began to crack over a cheap feud with sports stars, but somewhere there must be a straw that will break this pestilent camel’s back.

 

 

President Trump’s Worsening Relationship with the Black Caucus

22 Tuesday Aug 2017

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This article describes President Trump’s worsening relationship with the Congressional Black Caucus, from the cancellation of next month’s meeting to doubts about the President’s fitness to serve.

hbcu.jpgAndrew Harnik AP

Institutional Corruption and Public Trust

20 Sunday Aug 2017

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“Because institutions rely on public trust to fulfill their purposes, loss of trust in institutions constitutes institutional corruption, as it harms the ability for institutions to achieve their purposes.”

This article from the Southern California Interdisciplinary Law Journal examines institutional corruption and its influence on the effectiveness of government. An aspect of institutional corruption is loss of public trust, as is highlighted in the excerp above. One might consider this as an additional consequence of President Trump’s lying, as examined in Professor Bowman’s recent posts. 

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Lying as an impeachable offense – PART I: Criminally indictable falsehoods

17 Thursday Aug 2017

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Several weeks ago (before Charlottesville and the nuclear saber-rattling with North Korea) Mr. Trump claimed that the leader of the Boy Scouts of America called him to congratulate him on his, shall we say, unusual speech to the Boy Scout Jamboree.  He also claimed that the President of Mexico called him and discussed the supposed success of Trump’s border policies in deterring migrants.  Neither call happened, as the White House reluctantly, if obliquely, had to admit.  Though inconsequential in themselves, these incidents are examples of a persistent pattern that raises a critical question – can a president constitutionally be impeached for lying?

Mr. Trump has a highly idiosyncratic relationship with the truth.  Or, if one is inclined to plainer speaking, he lies.  A lot.

Reasons of state sometimes impose on government officials an obligation to lie in the national interest. Had a member of the press asked FDR on June 5, 1944, if the invasion of France was going to occur the following morning, and in Normandy, he would have been duty-bound to deny it.  To lie. But none of Mr. Trump’s manifold untruths fall into this category.

Nor is Mr. Trump’s mendacity merely an unusually pronounced example of the ordinary, if less laudable, disposition of all public figures to put a positive spin on awkward negative facts, or stretch positive facts somewhat farther than strict probity might dictate.

Nor are Mr. Trump’s fictions properly grouped with the occasional whoppers that politicians, eager for that little extra touch of authenticity, or pathos, or drama, sometimes blurt out in the midst of a speech or interview.  This is not Ronald Reagan’s famously false claim that he was present at the liberation of Nazi death camps, or Hillary Clinton’s more recent, but equally false, claim that she landed in Bosnia under sniper fire.

The simple fact is that Mr. Trump lies all the time.  Ceaselessly.  Unrepentantly.  About pretty much everything. Big things.  Little things.  Public matters and private ones.  The New York Times keeps a running count of his public falsehoods.  And while one can quibble with some of the items on the Times‘ list, no fairminded person can dispute the fact that Mr. Trump spouts untruths weekly, if not daily.

One might, I suppose, argue that Mr. Trump is so uninformed, so impulsive, so desperate for affirmation, so disconnected from ordinary reality that he isn’t “lying” because he merely speaks what he wishes were true and doesn’t subjectively realize, or care, that his imagined reality is not the world the rest of us experience.  That may be so — although that sort of speculation lies more in the realm of psychology than law or practical politics — and even if so, it has no relevance to how we as citizens are entitled to judge what a president says.   If a president consistently says things that are objectively untrue and does so either knowing that they are false or just not caring one way or the other, we are, I think, entitled to say he lies.  Indeed, we are entitled to conclude that he is a liar – in every sense of the word that has any meaning.

Which is all very well, but can a president constitutionally be impeached for lying, or for being a liar?

To address that question, we need a quick introduction to the constitutional standard for an impeachable offense — “high crimes and misdemeanors.”

A fast primer on “high crimes and misdemeanors”

Article II, Section 4, of the Constitution states that, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

I will have numerous occasions in the coming weeks and months to dissect the phrase “high crimes and misdemeanors,” but let us begin with some basic points.

First, it is a mistake to think that there is some settled body of “law” out there that will tell us exactly what “high crimes and misdemeanors” means and that will, therefore, bind Congress if it decides to consider impeaching Mr. Trump.  Like so many other constitutional phrases, “high crimes and misdemeanors” is vague and open to differing interpretations.  But unlike most other constitutional language,  “high crimes and misdemeanors” is probably not subject to definitive interpretation by the Supreme Court. The question of whether some particular presidential misbehavior amounts to an impeachable “high crime” has so far in our history been left entirely to Congress, and it is almost certain that the Supreme Court would refuse to hear a president’s appeal from a congressional impeachment judgment.

Nonetheless, both scholars and Congress have assumed that the constitution’s language, its legislative history in the founding era, and the sparse precedents derivable from the fewer than two-dozen actual or near-impeachments of the last two centuries provide some guidance on what presidential behavior should and should not be deemed impeachable.  The usefulness of this handful of precedents is limited by the fact that most of them involved life-tenured federal judges as to whom many scholars believe different standards apply. Still, there is a high degree of consensus on at least some points:

  • The phrase “high crimes and misdemeanors” includes many offenses that are actual crimes indictable under federal or state statutes.
  • Some indictable crimes are almost surely not impeachable offenses. Virtually all modern misdemeanor offenses — like driving under the influence or petty theft — and a good many low-level felonies — say counterfeiting a postage stamp or punching a “foreign official” in the nose — are surely not impeachable offenses.
  • The consensus view is that a president can be impeached for conduct that is not an indictable criminal offense.

As I argued at the time of the Clinton impeachment, the offenses, indictable or otherwise, most likely to be considered impeachable are: Very serious offenses that, as Alexander Hamilton wrote in the Federalist No. 65, are “of a nature which may with peculiar propriety be denominated POLITICAL,” because they either (a) involve direct abuses of the president’s powers of office, or (b) though arguably private in character, are public in effect in that they deprive the president of the personal or political legitimacy necessary to the performance of his office.

Impeachable lies

It is easy to dismiss impeachment for lying as overheated fancy.  After all, everyone lies sometimes, and often for laudable reasons.  And, as noted above, persons in public life are particularly prone to occasional prevarication, whether out of public necessity or meaner calculations of personal or partisan advantage.  The overwhelming majority of falsehoods, whether pronounced by private citizens in private settings or public officials in public affairs, are neither criminally prosecutable, nor civilly actionable, nor grounds for removal from office high or low.

That said, it is also true that some lies do have legal consequences.  Indeed, it is indisputably true that certain kinds of presidential lies are impeachable offenses.  And there are additional types of presidential lie that have not, so far in our history, been the basis of an impeachment, but could plausibly become so.

So let us consider three broad categories of possibly impeachable lie – (1) criminally indictable falsehoods; (2) unindictable official falsehoods; and (3) unindictable, but pervasive or pathological, falsehoods.

I will address the first category in this post and turn to the second and third categories, and their relation to Mr. Trump’s peculiar case, in my next two posts.

Indictable falsehoods

Federal law makes a great many kinds of lies indictable felonies.  The most well-known category is perjury – knowingly telling a falsehood under oath — before a court, grand jury, or other official tribunal.  But it is also a felony to lie to virtually any federal agency so long as the subject matter of the lie is within the “jurisdiction of the executive, legislative, or judicial branch of the Government of the United States.”  So, for example, if Mr. Trump were to submit to an interview by the FBI in the Russian election interference investigation and tell a lie about a matter material to the investigation, that lie would be a felony, regardless of whether the statement was under oath.

Similarly, all sorts of unsworn lies told (or written) in commercial settings can be felonies.  All federal fraud statutes have as one element a false or fraudulent pretense, representation, or promise.

Many of these felonious lies would surely be grounds for impeachment. Two federal judges, Alcee Hastings and Walter Nixon, have been impeached for perjury.  In the case of a president, it seems plain that lying in the course of the Russia investigation, either under oath to a grand jury or in an unsworn statement to the FBI, would qualify as an impeachable offense. Such an indictable falsehood in a criminal investigation into foreign meddling in U.S. elections would be criminal, consequential, integral to the integrity of the presidential office, and thus squarely in the zone the founders would have considered impeachable.

But not all indictable lies are necessarily impeachable offenses.  The most notorious (though complicated) counter-example is President William J. Clinton.  On the one hand, the House of Representatives approved an article of impeachment charging that Mr. Clinton committed perjury in front of a grand jury by lying about his sexual relationship with Monica Lewinsky (and about previous allegedly perjurious testimony on the same subject in a civil lawsuit brought by Paula Jones).  On the other hand, the Senate found him not guilty of that charge by a vote of 45-55.

This result is confusing because, while the House vote signaled that grand jury perjury is an offense for which impeachment is possible, the Senate acquittal might be interpreted to mean: (1) that grand jury perjury is never an impeachable offense; (2) that grand jury perjury, if proven, is impeachable, but that the House failed to prove that Clinton committed perjury in the legal sense; or (3) that at least some Senators believed that some perjuries are impeachable and that Clinton committed perjury, but that this particular instance of perjury – lying about a private sexual affair in legal proceedings instituted as an elaborate political trap – should not be grounds for conviction and removal from the presidency.

There is a sea of analysis of the Clinton verdict, but the consensus is that: (a) perjury certainly can be an impeachable offense; (b) Clinton surely lied under oath and pretty certainly committed the crime of perjury; but (c) a majority of senators probably concluded that the peculiar circumstances of his case made this perjury unworthy of the drastic, politically destabilizing, remedy of removal of a president from office.

The Clinton case highlights several critical points that would be at issue in any effort to impeach Mr. Trump for lies that did not violate a criminal statute:

On the one hand, the Clinton precedent illustrates that not even lies told in the most solemn, legally consequential setting are necessarily impeachable.  What undoubtedly saved Mr. Clinton was that, even though his lies were told under oath in an official setting, their subject was an intimately private matter – adulterous sexual relations.  To elevate lies on such a subject to impeachable offenses required that Mr. Clinton’s accusers argue either that the adulterous sex itself rendered Mr. Clinton morally unfit for office, or that any lie under oath by a president is subversive of the rule of law generally and, more particularly, violates the president’s constitutional obligation to ensure that the laws will be faithfully executed.

Mr. Clinton’s accusers didn’t press the moral disqualification argument, at least explicitly, both because the overwhelming majority of the public no longer viewed the more pedestrian varieties of sexual infidelity as a disqualification from public office, and because a quite remarkable number of Mr. Clinton’s principle accusers were themselves confessed adulterers. Consequently, the Republican House members who argued the case in the Senate (the “managers”) contended that a president who lies under oath on any subject subverts the rule of law and fatally undermines both that critical norm of democratic governance and his own capacity to preside over the government.

Mr. Clinton’s acquittal ultimately rested, I think, on two points that would be central to a case for impeaching Mr. Trump for epidemic lying.

First, Clinton’s lies were about a private matter.  One can argue that the Lewinsky affair had a public aspect insofar as the sex was between two government employees (a president and an intern) and occurred on government property (the White House).  But that was always a stretch.

Second, Clinton’s lies occurred in the context of the Paula Jones civil lawsuit which (however meritorious on its facts) was quite unapologetically financed by Clinton’s political enemies in order to embarrass him, and later in a grand jury empaneled by independent counsel Kenneth Starr, whose pursuit of Clinton began with inquiries into Arkansas land deals and devolved into what many perceived as a sex-obsessed inquisition.  Clinton’s lies in these settings could be characterized as purely defensive — the squalid and inglorious, but perhaps understandable, response of a man cornered by opponents determined to ruin him politically by exposing his personal failings. Accordingly, the lies felt less like subversion of the rule of law and more like a tit-for-tat response to a misuse of the law for partisan political ends.

By contrast, Mr. Trump’s lies are not limited to private matters, or indeed to any particular subject. He prevaricates about matters as trivial as the size of the inaugural crowd on the Washington Mall to matters of great consequence such as the claim that the Obama administration “tapped” Trump Tower.  The key is, first,  that his lies are almost all about public matters, and second, that they are not the defensive falsehoods of a man maneuvered by his enemies into a perjury trap.  Rather, his lies are gleefully volunteered (often, one suspects, despite the best efforts of his family and handlers to shut him up) with the express intention of promoting his public political objectives.

Nonetheless, at least so far, we have no publicly available evidence that Mr. Trump has told an indictable lie since assuming office.  (The question of whether his various falsehoods in prior private life could amount to impeachable offenses is one for another day.) Therefore, we are left to inquire whether there is any precedent or plausible constitutional argument for basing a presidential impeachment on chronic, but unindictable, lying.

 

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In my next post, I will address the possibility of impeaching a president for lies that are not criminally chargeable, but are part of formal presidential communications with congress.

 

Does Trump University Constitute an Impeachable Offense?

25 Tuesday Jul 2017

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In a draft for the upcoming University of Oregon Law Review, Professor Christopher L. Peterson explores whether the fraud and racketeering behind Trump University constitutes an offense which would enable Congress to pursue impeachment. Click here to read the article.

la-me-ln-trump-university-lawsuit-donald-trump-20160226.jpgBebeto Matthews / Associated Press