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A lesson from history: Conviction is not the only measure of a successful impeachment

26 Wednesday Jun 2019

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On June 25, Prof. Bowman published the following piece in Slate under the title, “Nancy Pelosi is taking the wrong lesson from past failed impeachments.”

By Frank Bowman

On Monday, Rep. Jim Himes of Connecticut became the latest Democrat to come out in favor of a formal impeachment inquiry. While Himes’ position on the House Intelligence Committee makes him one of the most prominent names to call for impeachment, House Democratic leadership has remained adamantly opposed to initiating such proceedings. As Democrats continue to agonize over whether to commence a formal impeachment inquiry against Donald Trump, they are trapped between two realities.

On the one hand, if they start an inquiry, the facts already known would compel a vote to impeach. On the other hand, the Republicans in the Senate will not vote to convict, regardless of the facts.

If, therefore, impeachment cannot compel removal, and if, as Speaker of the House Nancy Pelosi believes, impeachment risks loss of the House by the Democrats and enhances the chance of Trump’s reelection, what would be the point of starting the process?

I am loath to second-guess the proven political judgment of Pelosi in resisting a formal impeachment inquiry, but that judgment should at least be informed by a fair reading of history.

And as I explain in my forthcoming book, the history of impeachments—English and American—teaches that conviction of the target officeholder is not the only measure of a successful impeachment. Indeed, impeachments that did not result in convictions often succeeded in attaining most, if not all, of the objectives of those who initiated them.

Impeachment was invented by the British Parliament in the 1300s as a tool to counteract the dictatorial tendencies of the monarchy. Parliament could not remove an unsatisfactory king short of bloody rebellion. But impeachment gave it a means to check abuses of royal power by removing—and sometimes imprisoning, impoverishing, banishing, or beheading—the officials who carried out objectionable royal policies. The American founders abandoned British impeachment’s sometimes grisly criminal penalties (in part to make impeachment more palatable) but retained the distinctive procedural features of parliamentary practice—the lower house of the legislature brings the impeachment charges, and the upper house tries them.

Through the roughly four centuries during which impeachment was in active use by Parliament, a great many officials were impeached by the House of Commons but never convicted by the House of Lords. Sometimes the House of Lords acquitted the defendant outright. More often, it simply failed to act, or the process was blocked when the monarch “prorogued” (dissolved) Parliament before a trial could be held. The Earl of Suffolk (1450), the Duke of Buckingham (1626), and the Earl of Danby (1678) were all impeached but never tried because the king prorogued Parliament. Nonetheless, for each of these men and the king he served, impeachment was a personal and political blow.

The King preemptively banished Suffolk to forestall parliamentary condemnation, but Suffolk was murdered by pirates in the English Channel. Buckingham retained the King’s favor despite impeachment, but impeachment aggravated his personal unpopularity and he was assassinated. Danby was driven from office and imprisoned during the impeachment wrangling and effectively banished from public life during the reign of Charles II. In each case, the policies these men promoted on behalf of their royal masters were also impeded.

In 1715, the Earl of Strafford was impeached for giving Queen Anne “pernicious advice” about the Treaty of Utrecht. He was never tried but fell from power. His impeachment—along with that of the Earl of Oxford and Viscount Bolingbroke—signaled a decisive repudiation of pro-Catholic foreign policy and extinguished any hope of restoration of a Catholic English monarchy.

In 1787, when the Framers were gathered in Philadelphia to draft the Constitution, Parliament had just commenced the impeachment of Warren Hastings, governor-general of Bengal. Hastings’ impeachment was specifically mentioned in the exchange between George Mason and James Madison that gave us the phrase “high crimes and misdemeanors.” The trial dragged on for seven years and ended in acquittal, but the proceeding both destroyed Hastings and markedly altered the way England viewed governance of its overseas territories.

On this side of the Atlantic, impeachment was sometimes used by American colonists to protest royal policies. For example, in 1774, the Massachusetts House of Representatives impeached Chief Judge Peter Oliver for the “high crime and misdemeanor” of accepting a salary paid by the British monarchy under an act of Parliament. This seems bizarre to us, but to the colonists, the effort to pay colonial judges from the royal exchequer was an attempt to wrest control of the judiciary away from local authorities and make American judges accountable only to the faraway king.

Oliver was never tried because Colonial Gov. Thomas Hutchinson dissolved the upper chamber of the Legislature to prevent a trial. Nonetheless, Oliver became the hated embodiment of the danger of judicial servility to the monarchy. Faced with his example, no other Massachusetts judge dared to accept the king’s salary.

And although Oliver’s impeachment produced no conviction, the case assumed such importance in American minds that it made its way into the list of grievances against the king laid out in the Declaration of Independence. The king, wrote Thomas Jefferson:

… has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

After the newly independent United States adopted impeachment as part of its Constitution, the House of Representatives impeached Supreme Court Justice Samuel Chase in 1804, largely for judicial intemperance and displaying partisan bias in the exercise of his judicial duties. The effort to remove him was said to be part of an attempt by President Thomas Jefferson to purge the federal bench of judges aligned with his political opponents, the Federalists. Chase’s acquittal is often cited as authority for the proposition that judges should not be impeached for their political leanings. But it had another effect, which was to admonish federal judges to stay out of partisan politics when on the bench, which they have for the most part done ever since.

Finally, the failed impeachment of President Andrew Johnson in 1868 is cited by some as both a misuse of the impeachment power and an example of the futility of impeaching a president in the House, but failing to convict him in the Senate. I disagree on both points.

Johnson plainly deserved to be impeached. He was wrong about the most important constitutional questions posed by the aftermath of the Civil War—whether to readmit the rebel states of the defeated Confederacy to full political participation in national government without thorough reform of their politics and social structure, and whether to confer on black people the rights of citizenship that the abolition of slavery necessarily implied. Johnson wanted a version of “Reconstruction” that restored the white supremacist oligarchy of the Old South to power locally and influence nationally. And he wanted to consign freedmen to a sort of permanent peonage.

The Republican-dominated Congress wanted thorough Southern reformation and far more rights for black Americans. Johnson opposed them at every turn, vetoing virtually every congressional reconstruction bill and opposing ratification of the 14th Amendment. His effort to, in effect, pretend that the Civil War never happened was the true ground on which Republicans sought his removal, even though the articles of impeachment focused on the technicality of his violating the Tenure of Office Act by firing Secretary of War Edwin Stanton.

Although Johnson escaped Senate conviction by one vote, the impeachment proceedings forced Johnson to make concessions to Congress on reconstruction. Impeachment also eviscerated his effort to secure election to the presidency in 1868. One can fairly debate whether, in the long run, the goal of meaningful Reconstruction was helped or hurt by Johnson’s impeachment. But in the short term, it made crystal clear that congressional Republicans, not the president or recalcitrant southerners, would define the postwar political order.

Against all these cases stands the supposed cautionary tale of Bill Clinton’s acquittal. It is unquestionably true that the rush to impeach Clinton over his reprehensible personal conduct and obfuscatory perjuries imposed a short-term political cost on Republicans. But the lesson of that sad episode is not that any failure to convict a president is necessarily a political disaster for his or her opponents. Rather, the lesson is that the public will punish a party that tries to remove a president on transparently trivial grounds.

To draw from Clinton’s travails the lesson that no impeachment inquiry should be attempted without a guarantee of success in the Senate is to insulate even the most egregious presidential wrongdoing from serious scrutiny, still less serious consequences, so long as he can coerce the loyalty of a craven majority of senators of his own party. To take that line not only abandons a primary constitutional defense against executive tyranny but concedes that a politically dispositive fraction of the American public is so tribalized as to be unpersuadable.

I don’t think that is the lesson of American history, at least so far. Richard Nixon resigned because congressional hearings, including a formal impeachment inquiry, convinced an initially resistant American public and their congressional representatives that he committed constitutionally consequential misdeeds. Democrat Bill Clinton was acquitted because his impeachment inquiry disclosed tawdry and dishonorable, but constitutionally inconsequential, misbehavior. In the next presidential election, Republican George W. Bush, though confronted with Clinton’s strong economic legacy, ran on restoring “honor and dignity” to the White House … and won.

Ultimately, it’s not political naïveté to believe that a voting majority of Americans can be educated to recognize the threat to constitutional governance President Donald Trump presents.

Moreover, while it is imperative that Trump be beaten, it is only slightly less important that he be beaten on proper grounds. Not merely by promising better health care, or a more rational and humane immigration system, or a moderately improved system of allocating the vast wealth generated by robust capitalism. The constitutional health of the country requires that he lose, in significant part, because a voting majority of the American people understands that, unless repudiated, Trump and Trumpism will destroy the Constitution. Democrats can’t do this if they don’t at least try to make the case, and history suggests that the risks of such an effort are lower than they seem to fear. 

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. 

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

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/