Tag Archives: Reconstruction

“High Crimes & Misdemeanors” on CNN

14 Sunday Jul 2019

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CNN’s fine reporter Zachary Wolf has published a conversation with Prof. Bowman about his new book, “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump” (Cambridge U Press 2019). You can read the conversation here — and it’s reproduced below:

Washington (CNN) As Democrats try to square growing calls for impeachment proceedings against President Donald Trump with hesitation from party leadership — and the political reality of a Republican-controlled Senate — it’s worth understanding what’s behind the concept of impeachment and why it should or shouldn’t apply to Trump.Luckily, Frank Bowman III, a law professor at the University of Missouri, is out with the definitive history of impeachment in his new book, “High Crimes and Misdemeanors; A History of Impeachment for the Age Of Trump.”We asked him in the lightly edited conversation below what something meant to curb the power of kings of England has to do with the current President of the United States.

Where does impeachment come from?

CNN: I found it really interesting the way you tied the idea of impeachment back to the Magna Carta and how lords used it almost as a form of protection against the king. Is there anything left from that original meaning in the way it is applied today?

BOWMAN: For centuries, the kings and queens of England were the dictators of their age, with the added advantage that they could claim a divine right to rule. They sought close-to-absolute power when they could. The other power centers in the society — hereditary aristocrats (lords), landowners, clergy, merchants, lawyers, judges and others — clustered in Parliament and fought for the idea that the king ruled under the law with an obligation to serve the whole kingdom, not merely his personal interests.Parliament couldn’t use impeachment to depose the king himself, but they did use it to bring  down ministers of the king who promoted absolute royal power and denied the authority of Parliament and the laws. They charged such ministers with subverting the “ancient and well established form of government” of the kingdom and introducing tyranny.

Under our Constitution, impeachment extends all the way to the person who heads the executive branch, the president. And the basic theory of the most important old English impeachments is built into our Constitution. We can impeach a president when his conduct subverts our form of government — the rules and norms that make up our constitutional order — and threatens tyrannical government by the chief executive without regard to the legislature or the law. I’d argue that’s exactly the situation we now face.

Is there a precedent for impeaching Trump?

CNN: You profile, in great detail, the impeachments of Andrew Johnson and Bill Clinton and the near-impeachment of Richard Nixon. Which of those bears the most resemblance to the possible effort by Democrats against Trump?

BOWMAN: Nixon is the closest in terms of the offenses he committed. Nixon’s troubles began  with illegal efforts to gather information against his Democratic opposition in the 1972 election, but mushroomed when he tried through lies, dangling pardons, bribery, attempting to enlist the CIA and FBI in a cover-up, firing special prosecutor ArchibaldCox, suborning perjury, specious claims of executive privilege, etc., to obstruct the investigation. He put the cherry on top by defying legitimate subpoenas from the House Judiciary Committee. The parallels to Trump’s conduct in relation to the Russia investigation and other inquiries are not exact on every point, but they are very close.A possible, and frightening, difference between Nixon and Trump is that Nixon, in the end, was a man of the law in the sense that, while he committed offenses and tried to evade responsibility for them, he nonetheless believed in the constitutional structure of the US and that its laws applied to him. So when push came to shove and he was ordered to produce incriminating material, he did. I am quite sure that Trump neither understands nor believes in the American constitutional system. And I am not sure that Trump believes that he is bound by the law.

Johnson’s case is quite different than Trump’s on its facts and historical context. It was a fundamental dispute between Johnson and the majority in Congress over the proper approach  to post-Civil War Reconstruction and the role of black freedmen in American life. Johnson was ready to re-empower the unapologetic leadership class of the defeated South and consign black people to the status of permanent peons. The Republicans in Congress wanted a wholesale restructuring of Southern society, including rights for freed black people. The impeachment fight was between two fairly well-articulated and clashing theories about what America should become.One can try to superimpose some coherent idea of America on Trump’s flailings, but in the end, the problem with Trump is not that he is trying to move the country toward some unpleasant, but coherent, vision of the future but that he is destroying the constitutional order to gratify his own ego and pursue personal wealth and power. In that respect, the fight between congressional Democrats and Trump is similar to some clashes between Parliament and the English crown.

Still, Johnson’s impeachment may have at least one lesson for us: The House impeached Johnson, but he escaped conviction and removal by one vote in the Senate. As a result, the effort to impeach him is often called a failure and a misuse of the impeachment power. I disagree. Johnson should have been impeached and convicted because his vision of America’s future was fundamentally wrong AND he would not accept the contrary judgment of Congress. Though he was not removed, the impeachment did cripple him politically and force him to back off some of his most intransigent positions on Reconstruction. The lesson, to which I’ll return  below, is that impeachment without removal can sometimes be valuable.

What’s are the limits of high crimes and misdemeanors?

CNN: You detail many possible high crimes and misdemeanors, including obstruction of justice, abuse of the pardon power, lying and greed. Can Democrats essentially say anything they don’t like is a high crime and/or misdemeanor?

Bowman: Yes … and no. From a purely procedural point of view, Gerald Ford was right when he famously said (during the course of an unsuccessful attempt to impeach Justice William O.Douglas) that an impeachable offense is whatever a majority of the House and 2/3 of the Senate say it is. That’s because (despite what Mr. Trump seems to think) congressional decisions on what does or does not constitute impeachable conduct are not “justiciable” — that is, they are not reviewable by the courts. (I know Alan Dershowitz has said the contrary, or something like it, but he’s dead wrong and, as usual, just trying desperately to keep his name in the media.)

That said, there are some generally accepted historical parameters for what does and doesn’t qualify as impeachable. Classically, they must be “great” offenses, that is, they need not be crimes, but must be serious offenses against the law or constitutional order. Generally, they involve misuses of the president’s office, though most experts concede that really serious private misconduct would count. For example, Mr. Trump’s famous boast notwithstanding, a president who committed a private murder is surely impeachable. President Clinton avoided conviction in the Senate for a variety of reasons, but among them was surely the conclusion by many senators that his misconduct, though disgraceful and criminal, was private, pretty inconsequential and unrelated to his presidential role.

I could go on, but the basic point is that a set of generally shared understandings about the kinds of conduct that should be impeachable has tended to place outside limits on what Congress is willing to seriously consider when contemplating impeachment. We’re talking about historical norms, not enforceable law. Of course, as we are reminded daily in the current administration, norms are flimsy things once those in power decide to ignore them.

Is impeachment possible with a Republican Senate?

CNN: Some Democrats want to impeach Trump but it seems extremely unlikely they could remove him from office with a Republican-led Senate. Does that essentially move impeachment off the table?

BOWMAN: I don’t think so. I respect Speaker Nancy Pelosi’s apparent view that impeachment would be politically disadvantageous for Democrats. However, Trump’s assault on American constitutional structures and values is so profound and so dangerous that I think it requires a response. If that response cannot remove him from office, it can at the least explain to the American people the facts about his conduct and, or even more importantly, why what he is doing is so wrong, so contrary to our constitutional history and so dangerous for our future. A properly conducted impeachment inquiry is the tool the Constitution gives Congress to perform this task.

Impeachment is a power granted the House by the express language of the Constitution. Therefore, in an impeachment inquiry, Congress’ power to demand information from the president is at its highest — far greater than the more general oversight powers of Congress to inquire into executive branch operations for other legislative purposes. Moreover, an impeachment inquiry — and the hearings that would be part of it — could command public  attention more than anything else Congress might do. Let’s be honest. It may be that nothing can cut through the endless stream of broadcast and social media chatter and focus the country on what Trump has done and why it is constitutionally unacceptable. But the best shot at that is probably impeachment.

Moreover, the lesson of history is that impeachments can succeed in the political sense even when they do not remove the offending official. British history is full of examples of officials who were impeached by the House of Commons and not convicted by the House of Lords but who were nonetheless politically destroyed. Likewise, just before the American Revolution, the Massachusetts Colonial Legislature impeached Chief Judge Peter Oliver for the sin of accepting a salary from the crown. Oliver was not convicted, because the royal governor dissolved the Legislature before he could be tried in the upper chamber (previewing, perhaps, the approach of Sen. Mitch McConnell). But he was forced from office nonetheless by public outcry, and the principle that American judges should be accountable to American legislatures, not the faraway royal government, was established in patriot minds.

I gave the example of President Andrew Johnson above. He was not removed, but he was  politically crippled and his approach to Reconstruction wounded, if (sadly) not killed.

What should Democrats do?

CNN: As the person who has spent more time studying impeachment than maybe anyone else in the country, what would be your advice to Democrats considering doing it now?

BOWMAN: I won’t presume to tell Congress what it should do. I’ll just say to the Democrats that if you are going to do it, don’t do it as a noble, but futile, gesture. If you’re going to do it, (a) use its power as a means to extract information about presidential misconduct that you can’t otherwise get, and (b) structure it to educate persuadable, but underinformed, citizens about Trump’s conduct and why it endangers the health of the American republic.

What should everyone remember about impeachment?

CNN: What’s the one thing you think every American should keep in the back of their head about impeachment?

BOWMAN: Impeachment is the Constitution’s defense against a president who, by conscious design or because of defects in his character, threatens republican government. The framers made impeachment hard because they didn’t want Congress throwing out presidents in partisan hissy fits. Still, the framers meant it to be used if, somehow, a manifestly unfit person were to become president and endanger the constitutional order they so carefully constructed. Donald Trump is the contingency for which they gave us the weapon of impeachment. The question is whether our politics is so broken that we lack the will even to pick it up.

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.