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.

 

***

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.