The case to begin hearings to determine whether impeachment is warranted

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The Constitution allows impeachment of the president for abuse of the authority of his office, and also for obtaining his office by corrupt means.

Cass Sunstein provided the history behind the impeachment clause in an opinion piece last year:

[The impeachment clause] says that a president may be removed only for “Treason, Bribery, or other high Crimes and Misdemeanors.” The reference to treason and bribery, together with the word “other,” suggests that the president must have violated the law — and that the violation must be quite egregious (“high Crimes”).

But the debates at the Constitutional Convention offer a radically different perspective. An early draft of the founding document said that the president could be impeached for “malpractice, or neglect of duty.” That draft provoked an extended debate, featuring three distinct positions.

An extreme view, attracting little support, was close to [President Gerald] Ford’s: The legislature should be able to remove the president at its pleasure. An equally extreme view, obtaining considerable support, was that the president should not be impeachable at all. The third position, which carried the day, was that the president should be impeachable, but only for a narrow category of egregious abuses.

Promoting that compromise in 1787, George Mason argued that the Constitution must allow a response if the president obtained office by corrupting his electors. That argument led other delegates to agree that impeachment might be permitted in situations of “corruption & some few other offences.”

James Madison concurred, pointing to cases in which a president “might betray his trust to foreign powers.” Gouverneur Morris added that the president “may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard against it by displacing him.”

Capturing the emerging consensus, a new draft of the impeachment clause would have permitted the president to be impeached for treason, bribery and corruption. With little additional debate, and for no obvious reason, this provision was abbreviated to “treason and bribery.”

In the final debate, Mason complained that the provision had become too narrow to capture his earlier concerns, and urged that “maladministration” should be added, so as to include “attempts to subvert the Constitution” that would not count as treason or bribery. But Madison responded that the term “maladministration” was far too open-ended. Hence Mason withdrew “maladministration” and added the new, more precise phrase “other high crimes and misdemeanors against the State.”

In the ratification debates, one of the most sustained explanations came from the highly respected (and later Supreme Court justice) James Iredell, speaking in the North Carolina ratifying convention: “I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other.” By way of explanation, Iredell referred to a situation in which “the President has received a bribe…from a foreign power, and, under the influence of that bribe, had address enough with the Senate, by artifices and misrepresentations, to seduce their consent to a pernicious treaty.”

Alexander Hamilton similarly explained that the “subjects” of impeachment involve “the abuse of violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself.”

Interestingly, the phrase “high Crimes and Misdemeanors,” which was drawn from English law, did not produce much debate; apparently the founders regarded it as a term of art. Crucially, the term “misdemeanor” did not mean a distinct set of crimes (as opposed to felony); it referred instead to bad acts, in the form of exceptionally serious public misconduct.

A “high crime and misdemeanor” could certainly be a crime, but the term could also include acts or omissions that did not amount to a violation of the criminal law. If an official simply refused to do his job for six months, there is a good argument that he would be committing a “misdemeanor.” In England, it was even said that serious misconduct, as in a case of committing the nation to an ignominious treaty, was a legitimate basis for impeachment.

The upshot is both simple and clarifying: The Constitution allows impeachment of the president for large-scale abuse of the authority of his office, and also for obtaining his office by corrupt means.

With this historical perspective in mind, there were two important opinion pieces last week arguing for the House to begin an investigation of the president potentially leading to impeachment.

Neal K. Katyal, former acting U.S. solicitor general from 2010 to 2011, and Michael V. Hayden, former director of the National Security Agency from 1999 to 2005 and the Central Intelligence Agency from 2006 to 2009, wrote at the Washington Post, The House should investigate impeaching Trump:

We have been exceptionally reluctant to call for the impeachment of President Trump. Impeachment runs the risk of undoing an election and dividing the nation. But there is a big difference between calling for impeachment and calling for an investigation into whether impeachment is appropriate.

After careful review of the articles of impeachment for President Richard M. Nixon, we now believe it is appropriate for the House of Representatives to begin the process by launching an impeachment investigation. No legislator should rush to judgment one way or the other. The process should be designed to uncover the facts.

But if the facts show that Trump ordered or participated in the commission of crimes, in particular crimes that may have allowed him to win the election, we think it incontrovertible that impeachment would be warranted. So too, if the facts show that Trump ordered his personal attorney Michael Cohen to lie to Congress, as BuzzFeed reported Thursday night in an article that the special counsel is now disputing, he would be guilty of an impeachable offense. One of the Nixon articles was for “approving, condoning . . . and counselling witnesses with respect to the giving of . . . false or misleading testimony in duly instituted judicial and congressional proceedings.”

Separately, if evidence shows that the president has acted as an agent of a foreign power, impeachment would be a proper remedy.

Things might be different if there were a guarantee that Trump would face the consequences of any criminal activity. But many of the president’s defenders have embraced a broad view of executive power, including a radical view that the president cannot generally obstruct justice, as well as the notion that a sitting president cannot be indicted.

Every serious scholar who believes a sitting president cannot be indicted couples it with the need for impeachment in such circumstances — otherwise a president would be above the law. So it follows, from Trump’s own defenders, that the process of investigating whether impeachment is warranted must begin. Trump seeks immunity from internal criminal investigation — but if he is immune from such a process, he must then face a separate external one: by the House of Representatives in impeachment proceedings, as our founders specified in Article I, Section 2, of the Constitution.

On the intelligence side, a host of revelations simply in the past few days should cause all Americans concern. A president meeting with Russian President Vladi­mir Putin and taking control of all notes, as reported by The Post? An FBI investigation into whether a sitting president is a compromised Russian asset, as the New York Times reported? And then all the deceptions, denials and distractions by Trump, including shutting down the government based on a rather thin claim of national security. Congress must fulfill its constitutional duty to protect our national security.

* * *

The president and his advisers have tried already to block the government from investigating these questions. They have criticized special counsel Robert S. Mueller III as engaged in a “witch hunt” and attacked Cohen as a “rat” and a liar. Trump’s lawyers have threatened to assert executive privilege to block answers to Mueller’s questions and threatened to block release of Mueller’s report. A senator has indicated he won’t pursue the interpreter’s notes due to executive privilege. All of this points to a severe danger that, absent an investigation into impeachment, there will be no process to ferret out the truth and report it to the American people.

* * *

Both of us have been critical of the president. But we fervently hope and pray that an impeachment investigation would come back with no evidence of crimes or conspiracy. To find such evidence would rip at the fabric of our nation and force a wrenching process upon it. There is only one thing worse than knowing the answers to these questions, and that is not knowing them.

Impeachment skeptics say it will be impossible in this hyperpartisan age to convict a president, even a guilty one, due to the constitutional requirement that two-thirds of the Senate must agree. But that requirement is a feature, not a bug, of our system. Our founders, in their wisdom, gave us an impeachment process that permits the House to diligently investigate the questions surrounding an individual without the fear that the investigation alone, or a political frenzy, would be enough to convict a president.

“The time has come for Congress to fulfill its constitutional duty and seek the answer.”

The second opinion piece from Yoni Applebaum at The Atlantic similarly argues that “Starting the process will rein in a president who is undermining American ideals—and bring the debate about his fitness for office into Congress, where it belongs.” Impeach Donald Trump (excerpts):

[Trump’s] actions are, in sum, an attack on the very foundations of America’s constitutional democracy.

The electorate passes judgment on its presidents and their shortcomings every four years. But the Framers were concerned that a president could abuse his authority in ways that would undermine the democratic process and that could not wait to be addressed. So they created a mechanism for considering whether a president is subverting the rule of law or pursuing his own self-interest at the expense of the general welfare—in short, whether his continued tenure in office poses a threat to the republic. This mechanism is impeachment.

Trump’s actions during his first two years in office clearly meet, and exceed, the criteria to trigger this fail-safe. But the United States has grown wary of impeachment. The history of its application is widely misunderstood, leading Americans to mistake it for a dangerous threat to the constitutional order.

That is precisely backwards. It is absurd to suggest that the Constitution would delineate a mechanism too potent to ever actually be employed. Impeachment, in fact, is a vital protection against the dangers a president like Trump poses. And, crucially, many of its benefits—to the political health of the country, to the stability of the constitutional system—accrue irrespective of its ultimate result. Impeachment is a process, not an outcome, a rule-bound procedure for investigating a president, considering evidence, formulating charges, and deciding whether to continue on to trial.

* * *

By denying the debate its proper outlet, Congress has succeeded only in intensifying its pressures. And by declining to tackle the question head-on, it has deprived itself of its primary means of reining in the chief executive.

With a newly seated Democratic majority, the House of Representatives can no longer dodge its constitutional duty. It must immediately open a formal impeachment inquiry into President Trump, and bring the debate out of the court of public opinion and into Congress, where it belongs.

* * *

Instead, Democrats intend to be a thorn in Trump’s side. House committees will conduct hearings into a wide range of issues, calling administration officials to testify under oath. They will issue subpoenas and demand documents, emails, and other information. The chair of the Ways and Means Committee has the power to request Trump’s elusive tax returns from the IRS and, with the House’s approval, make them public.

Other institutions are already acting as brakes on the Trump presidency. To the president’s vocal frustration, federal judges have repeatedly enjoined his executive orders. Robert Mueller’s investigation has brought convictions of, or plea deals from, key figures in his campaign as well as his administration. Some Democrats are clearly hoping that if they stall for long enough, Mueller will deliver them from Trump, obviating the need to act themselves.

But Congress can’t outsource its responsibilities to federal prosecutors. No one knows when Mueller’s report will arrive, what form it will take, or what it will say. Even if Mueller alleges criminal misconduct on the part of the president, under Justice Department guidelines, a sitting president cannot be indicted. Nor will the host of congressional hearings fulfill that branch’s obligations. The view they will offer of his conduct will be both limited and scattershot, focused on discrete acts. Only by authorizing a dedicated impeachment inquiry can the House begin to assemble disparate allegations into a coherent picture, forcing lawmakers to consider both whether specific charges are true and whether the president’s abuses of his power justify his removal.

Waiting also presents dangers. With every passing day, Trump further undermines our national commitment to America’s ideals. And impeachment is a long process. Typically, the House first votes to open an investigation—the hearings would likely take months—then votes again to present charges to the Senate. By delaying the start of the process, in the hope that even clearer evidence will be produced by Mueller or some other source, lawmakers are delaying its eventual conclusion. Better to forge ahead, weighing what is already known and incorporating additional material as it becomes available.

* * *

Democrats’ fear—that impeachment will backfire on them—is likewise unfounded. The mistake Republicans made in impeaching Bill Clinton wasn’t a matter of timing. They identified real and troubling misconduct—then applied the wrong remedy to fix it. Clinton’s acts disgraced the presidency, and his lies under oath and efforts to obstruct the investigation may well have been crimes. The question that determines whether an act is impeachable, though, is whether it endangers American democracy. As a House Judiciary Committee staff report put it in 1974, in the midst of the Watergate investigation: “The purpose of impeachment is not personal punishment; its function is primarily to maintain constitutional government.” Impeachable offenses, it found, included “undermining the integrity of office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.”

Trump’s bipartisan critics are not merely arguing that he has lied or dishonored the presidency. The most serious allegations against him ultimately rest on the charge that he is attacking the bedrock of American democracy. That is the situation impeachment was devised to address.

Applebaum’s lengthy historical analysis and arguments that follow are well reasoned and clearly stated. He is correct. I recommend you read his entire piece.





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6 COMMENTS

  1. Highlights from latest poll from Public Policy Polling, https://www.publicpolicypolling.com/polls/trump-polling-at-only-41-42-against-possible-democratic-foes/

    Only 40% of voters approve of the job Trump is doing to 57% who disapprove.

    46% of voters support impeachment, to 44% of voters who are opposed.

    If the Mueller investigation does find that Trump committed a crime, 61% think he should be indicted and prosecuted in the courts, to just 30% who disagree.

    Voters say they’d prefer to have either Chuck Schumer (46-41) or Nancy Pelosi (47-44) over Trump as President.

    Only 35% of voters agree with Trump that the government should be kept closed until he gets funding for the wall to 60% who disagree.

    57% think Congress should vote today to reopen the government without funding the wall, to 38% who are opposed.

    55% of voters pin the blame for the shutdown on Trump and the Republicans in Congress to 43% who blame the Democrats in Congress.

  2. The Mueller investigation is near its end. Why not wait? You should not blog with your anti-Trump bias.

    • How do you know the investigation is near its end? Mueller just extended his grand jury another 6 months, and he has lawsuits pending in court.

      Michael Isikoff explains it for you in a recent segment of All In With Chris Hayes, https://crooksandliars.com/cltv/2019/01/michael-isikoff-argues-open

      TRANSCRIPT

      MICHAEL ISIKOFF: …Look, to me, all this only underscores how really important it is for Congress to finally step up to the plate here. I mean, we’re going to have a real test on February 7th when Michael Cohen appears before the House Oversight Committee. [This has now been delayed as of today.] And it’s up to Elijah Cummings, the chairman, to hold his feet to the fire and ask every question about every aspect of this without regard to what the impact might be on the Robert Mueller investigation. Congress has its own duty here… a constitutional responsibility to get to the facts and act on them and not outsource its investigative responsibilities to an executive branch official. Mueller has his job to do, but there are other jobs, and an equally important, if not more important, job that Congress has, is to finally resolve all these many questions we have.

      CHRIS HAYES: I couldn’t agree with you more strongly.

      ISIKOFF: It’s a point i’ve been trying to make for the last year, and it’s only in the last few days that people are starting to recognize that, you know, getting to the facts, the public responsibility here. I’ll ask you one question as an example going back in history. When Sam Irvin held the Senate Watergate hearings, did he ask Archibald Cox’s permission to hold those hearings? When they began hearings on Richard Nixon, did he ask for Leon Jaworski’s permission to do so? No, because everybody accepted that Congress had a job to do. You know, we’re now going to see whether Elijah Cummings, Adam Schiff, come to the plate and now do their job here. And that means public hearings, not behind closed doors.

      * * *

      ISIKOFF: Absolutely. Look, it has been now more than two years since the House and the Senate Intelligence Committees announced they were going to be investigating these matters and not a single public hearing has been held with a single fact witness in the entire Russia investigation. That is astonishing to me. All the hearings that were held, all the interviews were done behind closed doors. We still haven’t seen the public release of that testimony, by the way. So Michael Cohen’s testimony, Donald Trump Jr.’s testimony, go down the list, Jared Kushner’s testimony. All behind closed doors and we’re still in the dark about exactly what they said.

      HAYES: Michael Isikoff, that is a great point. I think there’s a divide between journalists and prosecutors on this. The prosecutors say you have to leave them alone, it’s a criminal inquiry and the journalists tend to want public transparency. You saw Chris Murphy say this. I thought it was interesting on Friday after the Buzzfeed story. It’s even more important in some ways after the Carr statement to say, look, we’ve got to do something here in Congress publicly about what the heck is going on in this country and with respect to this president.

      ISIKOFF: Absolutely. You know, with all due respect to all your legal analysts who talk about the sanctity of the investigation, fine, Robert Mueller has a job to do. He should do it.

      HAYES: And he can do it.

      ISIKOFF: Others in our democracy have jobs too that are just as important.

    • “You should not blog with your anti-Trump bias.”

      Good to know your stand on the 1A.

      Clearly you got your PhD from Trump University.

  3. What about the Mueller investigation? Has that become irrelevant? Are you afraid that an exoneration will prohibit a political lynching?

    • The opinion pieces cited make clear that Congress has an obligation to investigate and to hold public hearings and cannot outsource this responsibility to the Department of Justice, whose jurisdiction is only whether a criminal violation or national security threat has occurred for which it would recommend prosecution. Congress has much broader authority to investigate and to take action, by impeachment if warranted. You really should not be serving in an elected office with your lack of knowledge.

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