[House Prints, 116th Congress]
[From the U.S. Government Publishing Office]
116th Congress 1st }
COMMITTEE PRINT
Session }
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CONSTITUTIONAL GROUNDS FOR
PRESIDENTIAL IMPEACHMENT
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REPORT BY THE MAJORITY STAFF OF THE
HOUSE COMMITTEE ON THE JUDICIARY
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COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED AND SIXTEENTH CONGRESS
FIRST SESSION
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
DECEMBER 2019
116th Congress }
COMMITTEE PRINT
1st Session }
_______________________________________________________________________
CONSTITUTIONAL GROUNDS FOR
PRESIDENTIAL IMPEACHMENT
__________
REPORT BY THE MAJORITY STAFF OF THE
HOUSE COMMITTEE ON THE JUDICIARY
__________
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED AND SIXTEENTH CONGRESS
FIRST SESSION
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
__________
U.S. GOVERNMENT PUBLICHING OFFICE
38-513 WASHINGTON : 2019
Foreword by Mr. Nadler
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I am pleased to make available a report prepared by the
majority staff addressing constitutional grounds for
presidential impeachment. The staff of the Committee on the
Judiciary first produced a report addressing this topic in
1974, during the impeachment inquiry into President Richard M.
Nixon, and that report was updated by the majority and minority
staff in 1998, during the impeachment inquiry into President
William Jefferson Clinton. Over the past several decades,
however, legal scholars and historians have undertaken a
substantial study of the subject. The earlier reports remain
useful points of reference, but no longer reflect the best
available learning on questions relating to presidential
impeachment. Further, they do not address several issues of
constitutional law with particular relevance to the ongoing
impeachment inquiry respecting President Donald J. Trump. For
that reason, the majority staff of the Committee have prepared
this report for the use of the Committee on the Judiciary.
The views and conclusions contained in the report are staff
views and do not necessarily reflect those of the Committee on
the Judiciary or any of its members.
Amy Rutkin,
Chief of Staff.
Perry Apelbaum,
Staff Director and Chief
Counsel.
Aaron Hiller,
Deputy Chief Counsel and
Chief Oversight Counsel.
Barry Berke,
Special Counsel.
Norman Eisen,
Special Counsel.
Arya Hariharan,
Deputy Chief Oversight
Counsel.
James Park,
Chief Constitution Counsel.
Joshua Matz,
Counsel.
Sophia Brill,
Counsel.
Charles Gayle,
Counsel.
Maggie Goodlander,
Counsel.
Sarah Istel,
Counsel.
Ted Kalo,
Special Counsel.
Matthew Morgan,
Counsel.
Matthew N. Robinson,
Counsel.
Kerry Tirrell,
Counsel.
Rachel Calanni,
Professional Staff.
William S. Emmons,
Professional Staff.
Priyanka Mara,
Professional Staff.
Madeline Strasser,
Chief Clerk.
C O N T E N T S
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Page
I. Introduction.....................................................1
II. Summary of Principal Conclusions.................................2
III. The Purpose of Impeachment.......................................6
IV. Impeachable Offenses............................................10
A. Lessons from British and Early American History... 11
B. Treason and Bribery............................... 12
1. Impeachable Treason............................. 13
2. Impeachable Bribery............................. 13
C. Abuse, Betrayal & Corruption...................... 16
1. Abuse of Power.................................. 16
2. Betrayal of the National Interest Through
Foreign Entanglements.......................... 21
3. Corruption of Office or Elections............... 23
D. Conclusion........................................ 26
V. The Criminality Issue...........................................29
A. History........................................... 29
B. Constitutional Text and Structure................. 32
C. The Purpose of Impeachment........................ 34
D. The Limited Relevance of Criminality.............. 35
VI. Addressing Fallacies About Impeachment..........................35
A. The Impeachment Process........................... 36
B. Evidentiary Considerations and Presidential
Obstruction...................................... 38
C. Abuse of Presidential Power is Impeachable........ 41
D. Presidential Pretexts Need Not Be Accepted at Face
Value............................................ 43
E. Attempted Presidential Misconduct Is Impeachable.. 46
F. Impeachment is Part of Democratic Governance...... 47
VII. Conclusion......................................................48
Minority Views................................................... 49
Constitutional Grounds for Presidential Impeachment
Report by the Staff of the Committee on the Judiciary
I. Introduction
Our President holds the ultimate public trust. He is vested
with powers so great that they frightened the Framers of our
Constitution; in exchange, he swears an oath to faithfully
execute the laws that hold those powers in check. This oath is
no formality. The Framers foresaw that a faithless President
could destroy their experiment in democracy. As George Mason
warned at the Constitutional Convention, held in Philadelphia
in 1787, ``if we do not provide against corruption, our
government will soon be at an end.'' \1\ Mason evoked a well-
known historical truth: when corrupt motives take root, they
drive an endless thirst for power and contempt for checks and
balances. It is then only the smallest of steps toward acts of
oppression and assaults on free and fair elections. A President
faithful only to himself--who will sell out democracy and
national security for his own personal advantage--is a danger
to every American. Indeed, he threatens America itself.
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\1\ Max Farrand, ed., The Records of the Federal Convention of
1787, 392 (1911) (hereinafter, ``Records of the Federal Convention'').
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Impeachment is the Constitution's final answer to a
President who mistakes himself for a monarch. Aware that power
corrupts, our Framers built other guardrails against that
error. The Constitution thus separates governmental powers,
imposes an oath of faithful execution, prohibits profiting from
office, and guarantees accountability through regular
elections. But the Framers were not naive. They knew, and
feared, that someday a corrupt executive might claim he could
do anything he wanted as President. Determined to protect our
democracy, the Framers built a safety valve into the
Constitution: A President can be removed from office if the
House of Representatives approves articles of impeachment
charging him with ``Treason, Bribery, or other high Crimes and
Misdemeanors,'' and if two-thirds of the Senate votes to find
the President guilty of such misconduct after a trial.\2\
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\2\ U.S. Const. Art. II, Sec. 4; id. Art. I, Sec. 5, cl. 5; id.
Art. I, Sec. 3, cl. 6.
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As Justice Joseph Story recognized, ``the power of
impeachment is not one expected in any government to be in
constant or frequent exercise.'' \3\ When faced with credible
evidence of extraordinary wrongdoing, however, it is incumbent
on the House to investigate and determine whether impeachment
is warranted. On October 31, 2019, the House approved H. Res.
660, which, among other things, confirmed the preexisting
inquiry ``into whether sufficient grounds exist for the House
of Representatives to exercise its Constitutional power to
impeach Donald John Trump, President of the United States of
America.'' \4\
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\3\ 2 Joseph Story, Commentaries on the Constitution of the United
States, 221 (1833).
\4\ H. Res. 660, 116th Cong. (2019).
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The Judiciary Committee now faces questions of
extraordinary importance. In prior impeachment inquiries
addressing allegations of Presidential misconduct, the staff of
the Judiciary Committee has prepared reports addressing
relevant principles of constitutional law.\5\ Consistent with
that practice, and to assist the Committee and the House in
working toward a resolution of the questions before them, this
staff report explores the meaning of the words in the
Constitution's Impeachment Clause: ``Treason, Bribery, or other
high Crimes and Misdemeanors.'' It also describes the
impeachment process and addresses several mistaken claims about
impeachment that have recently drawn public notice.
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\5\ Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional
Grounds for Presidential Impeachment 4 (Comm. Print 1974) (hereinafter
``Constitutional Grounds for Presidential Impeachment (1974)''); Staff
of H. Comm. on the Judiciary, 105th Cong., Constitutional Grounds for
Presidential Impeachment: Modern Precedents (Comm. Print 1998)
(hereinafter ``Constitutional Grounds for Presidential Impeachment:
Modern Precedents (1998)'').
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II. Summary of Principal Conclusions
Our principal conclusions are as follows.
The purpose of impeachment. As the Framers deliberated in
Philadelphia, Mason posed a profound question: ``Shall any man
be above justice?'' \6\ By authorizing Congress to remove
Presidents for egregious misconduct, the Framers offered a
resounding answer. As Mason elaborated, ``some mode of
displacing an unfit magistrate is rendered indispensable by the
fallibility of those who choose, as well as by the
corruptibility of the man chosen.'' \7\ Unlike Britain's
monarch, the President would answer personally--to Congress and
thus to the Nation--if he engaged in serious wrongdoing.
Alexander Hamilton explained that the President would have no
more resemblance to the British king than to ``the Grand
Seignior, to the khan of Tartary, [or] to the Man of the Seven
Mountains.'' \8\ Whereas ``the person of the king of Great
Britain is sacred and inviolable,'' the President of the United
States could be ``impeached, tried, and upon conviction . . .
removed from office.'' \9\ Critically, though, impeachment goes
no further. It results only in loss of political power. This
speaks to the nature of impeachment: it exists not to inflict
punishment for past wrongdoing, but rather to save the Nation
from misconduct that endangers democracy and the rule of law.
Thus, the ultimate question in an impeachment is whether
leaving the President in our highest office imperils the
Constitution.\10\
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\6\ 2 Farrand, Records of the Federal Convention, at 65.
\7\ 1 Farrand, Records of the Federal Convention, at 86.
\8\ Alexander Hamilton, Federalist No. 69, 444 (Benjamin Fletcher
Wright ed., 2004).
\9\ Id.
\10\ See Laurence H. Tribe, American Constitutional Law 155 (3d ed.
2000).
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Impeachable offenses. The Framers were careful students of
history and knew that threats to democracy can take many forms.
They feared would-be monarchs, but also warned against fake
populists, charismatic demagogues, and corrupt kleptocrats. The
Framers thus intended impeachment to reach the full spectrum of
Presidential misconduct that menaced the Constitution. Because
they could not anticipate and prohibit every threat a President
might someday pose, the Framers adopted a standard sufficiently
general and flexible to meet unknown future circumstances:
``Treason, Bribery, or other high Crimes and Misdemeanors.''
This standard was proposed by Mason and was meant, in his
words, to capture all manner of ``great and dangerous
offenses'' against the Constitution.\11\
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\11\ 2 Farrand, Records of the Federal Convention, at 550.
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Treason and bribery. Applying traditional tools of
interpretation puts a sharper point on this definition of
``high Crimes and Misdemeanors.'' For starters, it is useful to
consider the two impeachable offenses that the Framers
identified for us. ``Treason'' is an unforgiveable betrayal of
the Nation and its security. A President who levies war against
the government, or lends aid and comfort to our enemies, cannot
persist in office; a President who betrays the Nation once will
most certainly do so again. ``Bribery,'' in turn, sounds in
abuse of power. Impeachable bribery occurs when the President
offers, solicits, or accepts something of personal value to
influence his own official actions. By rendering such bribery
impeachable, the Framers sought to ensure that the Nation could
expel a leader who would sell out the interests of ``We the
People'' for his own personal gain.
In identifying ``other high Crimes and Misdemeanors,'' we
are guided by the text and structure of the Constitution, the
records of the Constitutional Convention and state ratifying
debates, and the history of impeachment practice. These sources
demonstrate that the Framers principally intended impeachment
for three overlapping forms of Presidential wrongdoing: (1)
abuse of power, (2) betrayal of the nation through foreign
entanglements, and (3) corruption of office and elections. Any
one of these violations of the public trust justifies
impeachment; when combined in a single course of conduct, they
state the strongest possible case for impeachment and removal
from office.
Abuse of power. There are at least as many ways to abuse
power as there are powers vested in the President. It would
thus be an exercise in futility to attempt a list of every
abuse of power constituting ``high Crimes and Misdemeanors.''
That said, impeachable abuse of power can be roughly divided
into two categories: engaging in official acts forbidden by law
and engaging in official action with motives forbidden by law.
As James Iredell explained, ``the president would be liable to
impeachments [if] he had . . . acted from some corrupt motive
or other.'' \12\ This warning echoed Edmund Randolph's teaching
that impeachment must be allowed because ``the Executive will
have great opportunitys of abusing his power.'' \13\ President
Richard Nixon's conduct has come to exemplify impeachable abuse
of power: he acted with corrupt motives in obstructing justice
and using official power to target his political opponents, and
his decision to unlawfully defy subpoenas issued by the House
impeachment inquiry was unconstitutional on its face.
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\12\ Quoted in Background and History of Impeachment: Hearing
before the Subcomm. On the Constitution of the H. Comm on the
Judiciary, 105th Cong. 49 (1999) (hereinafter ``1998 Background and
History of Impeachment Hearing'').
\13\ 2 Farrand, Records of the Federal Convention at 67.
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Betrayal involving foreign powers. As much as the Framers
feared abuse, they feared betrayal still more. That anxiety is
shot through their discussion of impeachment--and explains why
``Treason'' heads the Constitution's list of impeachable
offenses. James Madison put it simply: the President ``might
betray his trust to foreign powers.'' \14\ Although the Framers
did not intend impeachment for good faith disagreements on
matters of diplomacy, they were explicit that betrayal of the
Nation through schemes with foreign powers justified that
remedy. Indeed, foreign interference in the American political
system was among the gravest dangers feared by the Founders of
our Nation and the Framers of our Constitution. In his farewell
address, George Washington thus warned Americans ``to be
constantly awake, since history and experience prove that
foreign influence is one of the most baneful foes of republican
government.'' \15\ And in a letter to Thomas Jefferson, John
Adams wrote: ``You are apprehensive of foreign Interference,
Intrigue, Influence. So am I. But, as often as Elections
happen, the danger of foreign Influence recurs.'' \16\
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\14\ Id., at 65-66.
\15\ George Washington Farewell Address (1796), George Washington
Papers, Series 2, Letterbooks 1754-1799: Letterbook 24, April 3, 1793-
March 3, 1797, Library of Congress.
\16\ To Thomas Jefferson from John Adams, 6 December 1787, National
Archives, Founders Online.
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Corruption. Lurking beneath the Framers' discussion of
impeachment was the most ancient and implacable foe of
democracy: corruption. The Framers saw no shortage of threats
to the Republic, and sought to guard against them, ``but the
big fear underlying all the small fears was whether they'd be
able to control corruption.'' \17\ As Madison put it,
corruption ``might be fatal to the Republic.'' \18\ This was
not just a matter of thwarting bribes; it was a far more
expansive challenge. The Framers celebrated civic virtue and
love of country; they wrote rules to ensure officials would not
use public power for private gain.
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\17\ Zephyr Teachout, Corruption in America: From Benjamin
Franklin's Snuff Box to Citizens United 57 (2014).
\18\ 2 Farrand, Records of the Federal Convention, at 66.
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Impeachment was seen as especially necessary for
Presidential conduct corrupting our system of political self-
government. That concern arose in multiple contexts as the
Framers debated the Constitution. The most important was the
risk that Presidents would place their personal interest in re-
election above our bedrock national commitment to democracy.
The Framers knew that corrupt leaders concentrate power by
manipulating elections and undercutting adversaries. They
despised King George III, who ``resorted to influencing the
electoral process and the representatives in Parliament in
order to gain [his] treacherous ends.'' \19\ That is why the
Framers deemed electoral treachery a central ground for
impeachment. The very premise of the Constitution is that the
American people govern themselves, and choose their leaders,
through free and fair elections. When the President concludes
that elections might threaten his grasp on power and abuses his
office to sabotage opponents or invite inference, he rejects
democracy itself and must be removed.
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\19\ Gordon S. Wood, The Creation of the American Republic, 1776-
1787 33 (1998).
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Conclusions regarding the nature of impeachable offenses.
In sum, history teaches that ``high Crimes and Misdemeanors''
referred mainly to acts committed by public officials, using
their power or privileges, that inflicted grave harm on our
political order. Such great and dangerous offenses included
treason, bribery, serious abuse of power, betrayal of the
national interest through foreign entanglements, and corruption
of office and elections. They were unified by a clear theme:
officials who abused, abandoned, or sought personal benefit
from their public trust--and who threatened the rule of law if
left in power--faced impeachment. Each of these acts, moreover,
should be plainly wrong to reasonable officials and persons of
honor. When a political official uses political power in ways
that substantially harm our political system, Congress can
strip them of that power.
Within these parameters, and guided by fidelity to the
Constitution, the House must judge whether the President's
misconduct is grave enough to require impeachment. That step
must never be taken lightly. It is a momentous act, justified
only when the President's full course of conduct, assessed
without favor or prejudice, is ``seriously incompatible with
either the constitutional form and principles of our government
or the proper performance of constitutional duties of the
presidential office.'' \20\ But when that high standard is met,
the Constitution calls the House to action--and the House, in
turn, must rise to the occasion. In such cases, a decision not
to impeach can harm democracy and set an ominous precedent.
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\20\ Report of the Committee on the Judiciary, Impeachment of
Richard M. Nixon, President of the United States, H.R. Rep. No. 93-1305
8 (1974) (hereinafter ``Committee Report on Nixon Articles of
Impeachment (1974)'').
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The criminality issue. It is occasionally suggested that
Presidents can be impeached only if they have committed crimes.
That position was rejected in President Nixon's case, and then
rejected again in President Clinton's, and should be rejected
once more. Offenses against the Constitution are different than
offenses against the criminal code. Some crimes, like
jaywalking, are not impeachable. And some forms of misconduct
may offend both the Constitution and the criminal law.
Impeachment and criminality must therefore be assessed
separately--even though the President's commission of
indictable crimes may further support a case for impeachment
and removal. Ultimately, the House must judge whether a
President's conduct offends and endangers the Constitution
itself.
Fallacies about impeachment. In the final section of this
Report, we briefly address six falsehoods about impeachment
that have recently drawn public notice.
First, contrary to mistaken claims otherwise, we
demonstrate that the current impeachment inquiry has complied
in every respect with the Constitution, the Rules of the House,
and historic practice and precedent of the House.
Second, we address several evidentiary matters. The House
impeachment inquiry has compiled substantial direct and
circumstantial evidence bearing on the issues at hand.
Nonetheless, President Trump has objected that some of the
evidence gathered by the House comes from witnesses lacking
first-hand knowledge of his conduct. But in the same breath, he
has unlawfully ordered many witnesses with first-hand knowledge
to defy House subpoenas. As we show, President Trump's
assertions regarding the evidence before the House are
misplaced as a matter of constitutional law and common sense.
Third, we consider President Trump's claim that his actions
are protected because of his right under Article II of the
Constitution ``to do whatever I want as president.'' \21\ This
claim is wrong, and profoundly so, because our Constitution
rejects pretensions to monarchy and binds Presidents with law.
That is true even of powers vested exclusively in the chief
executive. If those powers are invoked for corrupt reasons, or
wielded in an abusive manner harming the constitutional system,
the President is subject to impeachment for ``high Crimes and
Misdemeanors.'' This is a core premise of the impeachment
power.
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\21\ Remarks by President Trump at Turning Point USA's Teen Student
Action Summit 2019, July 23, 2019, The White House.
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Fourth, we address whether the House must accept at face
value President Trump's claim that his motives were not
corrupt. In short, no. When the House probes a President's
state of mind, its mandate is to find the facts. That means
evaluating the President's account of his motives to see if it
rings true. The question is not whether the President's conduct
could have resulted from permissible motives. It is whether the
President's real reasons, the ones in his mind at the time,
were legitimate. Where the House discovers persuasive evidence
of corrupt wrongdoing, it is entitled to rely upon that
evidence to impeach.
Fifth, we explain that attempted Presidential wrongdoing is
impeachable. Mason himself said so at the Constitutional
Convention, where he described ``attempts to subvert the
Constitution'' as a core example of ``great and dangerous
offenses.'' \22\ Moreover, the Judiciary Committee reached the
same conclusion in President Nixon's case. Historical precedent
thus confirms that ineptitude and insubordination do not afford
the President a defense to impeachment. A President cannot
escape impeachment just because his scheme to abuse power,
betray the nation, or corrupt elections was discovered and
abandoned.
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\22\ Cass R. Sunstein, Impeachment: A Citizen's Guide 47 (2017).
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Finally, we consider whether impeachment ``nullifies'' the
last election or denies voters their voice in the next one. The
Framers themselves weighed this question. They considered
relying solely on elections--rather than impeachment--to remove
wayward Presidents. That position was firmly rejected. No
President is entitled to persist in office after committing
``high Crimes and Misdemeanors,'' and no one who voted for him
in the last election is entitled to expect he will do so. Where
the President's misconduct is aimed at corrupting elections,
relying on elections to solve the problem is no safeguard at
all.
III. The Purpose of Impeachment
Freedom must not be taken for granted. It demands constant
protection from leaders whose taste of power sparks a voracious
need for more. Time and again, republics have fallen to
officials who care little for the law and use the public trust
for private gain.
The Framers of the Constitution knew this well. They saw
corruption erode the British constitution from within. They
heard kings boast of their own excellence while conspiring with
foreign powers and consorting with shady figures. As talk of
revolution spread, they objected as King George III used favors
and party politics to control Parliament, aided by men who sold
their souls and welcomed oppression.
The Framers risked their freedom, and their lives, to
escape that monarchy. So did their families and many of their
friends. Together, they resolved to build a nation committed to
democracy and the rule of law--a beacon to the world in an age
of aristocracy. In the United States of America, ``We the
People'' would be sovereign. We would choose our own leaders
and hold them accountable for how they exercised power.
As they designed our government at the Constitutional
Convention, however, the Framers faced a dilemma. On the one
hand, many of them embraced the need for a powerful chief
executive. This had been cast into stark relief by the failure
of the Nation's very first constitution, the Articles of
Confederation, which put Congress in charge at the federal
level. The ensuing discord led James Madison to warn, ``it is
not possible that a government can last long under these
circumstances.'' \23\ The Framers therefore created the
Presidency. A single official could lead the Nation with
integrity, energy, and dispatch--and would be held personally
responsible for honoring that immense public trust.
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\23\ Quoted in id., at 27.
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Power, though, is a double-edged sword. ``The power to do
good meant also the power to do harm, the power to serve the
republic also meant the power to demean and defile it.'' \24\
The President would be vested with breathtaking authority. If
corrupt motives took root in his mind, displacing civic virtue
and love of country, he could sabotage the Constitution. That
was clear to the Framers, who saw corruption as ``the great
force that had undermined republics throughout history.'' \25\
Obsessed with the fall of Rome, they knew that corruption
marked a leader's path to abuse and betrayal. Mason thus
emphasized, ``if we do not provide against corruption, our
government will soon be at an end.'' This warning against
corruption--echoed no fewer than 54 times by 15 delegates at
the Convention--extended far beyond bribes and presents. To the
Framers, corruption was fundamentally about the misuse of a
position of public trust for any improper private benefit. It
thus went to the heart of their conception of public service.
As a leading historian recounts, ``a corrupt political actor
would either purposely ignore or forget the public good as he
used the reins of power.'' \26\ Because men and women are not
angels, corruption could not be fully eradicated, even in
virtuous officials, but ``its power can be subdued with the
right combination of culture and political rules.'' \27\
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\24\ Arthur M. Schlesinger, Jr., The Imperial Presidency 415
(1973).
\25\ Elizabeth B. Wydra & Brianne J. Gorod, The First Magistrate in
Foreign Pay, The New Republic, Nov. 11, 2019.
\26\ Teachout, Corruption in America, at 48.
\27\ Id., at 47.
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The Framers therefore erected safeguards against
Presidential abuse. Most famously, they divided power among
three branches of government that had the means and motive to
balance each other. ``Ambition,'' Madison reasoned, ``must be
made to counteract ambition.'' \28\ In addition, the Framers
subjected the President to election every four years and
established the Electoral College (which, they hoped, would
select virtuous, capable leaders and refuse to re-elect corrupt
or unpopular ones). Finally, the Framers imposed on the
President a duty to faithfully execute the laws--and required
him to accept that duty in a solemn oath.\29\ To the Framers,
the concept of faithful execution was profoundly important. It
prohibited the President from taking official acts in bad faith
or with corrupt intent, as well as acts beyond what the law
authorized.\30\
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\28\ James Madison, Federalist No. 51, at 356.
\29\ U.S. Const. Art. II, Sec. 1, cl. 8.
\30\ See Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman,
Faithful Execution and Article II, 132 Harv. L. Rev. 2111-2121 (2019).
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A few Framers would have stopped there. This minority
feared vesting any branch of government with the power to end a
Presidency; as they saw it, even extreme Presidential
wrongdoing could be managed in the normal course (mainly by
periodic elections).
That view was decisively rejected. As Professor Raoul
Berger writes, ``the Framers were steeped in English history;
the shades of despotic kings and conniving ministers marched
before them.'' \31\ Haunted by those lessons, and convening in
the shadow of revolution, the Framers would not deny the Nation
an escape from Presidents who deemed themselves above the law.
So they turned to a mighty constitutional power, one that
offered a peaceful and politically accountable method for
ending an oppressive Presidency.
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\31\ Raoul Berger, Impeachment: The Constitutional Problems 4
(1974).
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This was impeachment, a legal relic from the British past
that over the preceding century had found a new lease on life
in the North American colonies. First deployed in 1376--and
wielded in fits and starts over the following 400 years--
impeachment allowed Parliament to charge royal ministers with
abuse, remove them from office, and imprison them. Over time,
impeachment helped Parliament shift power away from royal
absolutism and encouraged more politically accountable
administration. In 1679, it was thus proclaimed in the House of
Commons that impeachment was ``the chief institution for the
preservation of government.'' \32\ That sentiment was echoed in
the New World. Even as Parliamentary impeachment fell into
disuse by the early 1700s, colonists in Maryland, Pennsylvania,
and Massachusetts laid claim to this prerogative as part of
their English birthright. During the revolution, ten states
ratified constitutions allowing the impeachment of executive
officials--and put that power to use in cases of corruption and
abuse of power.\33\ Unlike in Britain, though, American
impeachment did not result in fines or jailtime. It simply
removed officials from political power when their conduct
required it.
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\32\ Id., at 1 n.2.
\33\ Frank O. Bowman, III, High Crimes and Misdemeanors: A History
of Impeachment for the Age of Trump 72 (2019).
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Familiar with the use of impeachment to address lawless
officials, the Framers offered a clear answer to Mason's
question at the Constitutional Convention, ``Shall any man be
above justice''? \34\ As Mason himself explained, ``some mode
of displacing an unfit magistrate is rendered indispensable by
the fallibility of those who choose, as well as by the
corruptibility of the man chosen.'' \35\ Future Vice President
Elbridge Gerry agreed, adding that impeachment repudiates the
fallacy that our ``chief magistrate could do no wrong.'' \36\
Benjamin Franklin, in turn, made the case that impeachment is
``the best way'' to assess claims of serious wrongdoing by a
President; without it, those accusations would fester
unresolved and invite enduring conflict over Presidential
malfeasance.\37\
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\34\ 2 Farrand, Records of the Federal Convention, at 65-67.
\35\ 1 Farrand, Records of the Federal Convention, at 66.
\36\ 2 Farrand, Records of the Federal Convention, at 66.
\37\ James Madison, Notes on Debates in the Federal Convention of
1787 332 (1987).
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Unlike in Britain, the President would answer personally--
to Congress and thus to the Nation--for any serious wrongdoing.
For that reason, as Hamilton later explained, the President
would have no more resemblance to the British king than to
``the Grand Seignior, to the khan of Tartary, [or] to the Man
of the Seven Mountains.'' \38\ Whereas ``the person of the king
of Great Britain is sacred and inviolable,'' the President
could be ``impeached, tried, and upon conviction . . . removed
from office.'' \39\
---------------------------------------------------------------------------
\38\ Alexander Hamilton, Federalist No. 69, at 444.
\39\ Id.
---------------------------------------------------------------------------
Of course, the decision to subject the President to
impeachment was not the end of the story. The Framers also had
to specify how this would work in practice. After long and
searching debate they made three crucial decisions, each of
which sheds light on their understanding of impeachment's
proper role in our constitutional system.
First, they limited the consequences of impeachment to
``removal from Office'' and ``disqualification'' from future
officeholding.\40\ To the extent the President's wrongful
conduct also breaks the law, the Constitution expressly
reserves criminal punishment for the ordinary processes of
criminal law. In that respect, ``the consequences of
impeachment and conviction go just far enough, and no further
than, to remove the threat posed to the Republic by an unfit
official.'' \41\ This speaks to the very nature of impeachment:
it exists not to inflict personal punishment for past
wrongdoing, but rather to protect against future Presidential
misconduct that would endanger democracy and the rule of
law.\42\
---------------------------------------------------------------------------
\40\ U.S. Const. Art. I, Sec. 43, cl. 7.
\41\ John O. McGinnis, Impeachment: The Structural Understanding,
67 Geo. Wash. L. Rev. 650, 650 (1999).
\42\ See Tribe, American Constitutional Law, at 155.
---------------------------------------------------------------------------
Second, the Framers vested the House with ``the sole Power
of Impeachment.'' \43\ The House thus serves in a role
analogous to a grand jury and prosecutor: it investigates the
President's misconduct and decides whether to formally accuse
him of impeachable acts. As James Iredell explained during
debates over whether to ratify the Constitution, ``this power
is lodged in those who represent the great body of the people,
because the occasion for its exercise will arise from acts of
great injury to the community.'' \44\ The Senate, in turn,
holds ``the sole Power to try all Impeachments.'' \45\ When the
Senate sits as a court of impeachment for the President, each
Senator must swear a special oath, the Chief Justice of the
United States presides, and conviction requires ``the
concurrence of two thirds of the Members present.'' \46\ By
designating Congress to accuse the President and conduct his
trial, the Framers confirmed--in Hamilton's words--that
impeachment concerns an ``abuse or violation of some public
trust'' with ``injuries done immediately to the society
itself.'' \47\ Impeachment is reserved for offenses against our
political system. It is therefore prosecuted and judged by
Congress, speaking for the Nation.
---------------------------------------------------------------------------
\43\ U.S. Const. Art. I, Sec. 2, cl. 5.
\44\ 4 Jonathan Elliot, ed., The Debates in the Several State
Conventions on the Adoption of the Federal Constitution 113 (1861)
(hereinafter ``Debates in the Several State Conventions'').
\45\ U.S. Const. Art. I, Sec. 3, cl. 6.
\46\ Id.
\47\ Alexander Hamilton, Federalist No. 65, at 426.
---------------------------------------------------------------------------
Last, but not least, the Framers imposed a rule of
wrongdoing. The President cannot be removed based on poor
management, general incompetence, or unpopular policies.
Instead, the question in any impeachment inquiry is whether the
President has engaged in misconduct justifying an early end to
his term in office: ``Treason, Bribery, or other high Crimes
and Misdemeanors.'' \48\ This phrase had a particular legal
meaning to the Framers. It is to that understanding, and to its
application in prior Presidential impeachments, that we now
turn.
---------------------------------------------------------------------------
\48\ U.S. Const. Art. II, Sec. 4.
---------------------------------------------------------------------------
IV. Impeachable Offenses
As careful students of history, the Framers knew that
threats to democracy can take many forms. They feared would-be
monarchs, but also warned against fake populists, charismatic
demagogues, and corrupt kleptocrats. In describing the kind of
leader who might menace the Nation, Hamilton offered an
especially striking portrait:
When a man unprincipled in private life[,] desperate
in his fortune, bold in his temper . . . known to have
scoffed in private at the principles of liberty
--when such a man is seen to mount the hobby horse of
popularity--to join in the cry of danger to liberty--to
take every opportunity of embarrassing the General
Government & bringing it under suspicion--to flatter
and fall in with all the non sense [sic] of the zealots
of the day--It may justly be suspected that his object
is to throw things into confusion that he may ride the
storm and direct the whirlwind.\49\
---------------------------------------------------------------------------
\49\ Alexander Hamilton, ``Objections and Answers respecting the
Administration of the Government,'' Founders Online, National Archives.
This prophesy echoed Hamilton's warning, in Federalist No. 1,
that ``of those men who have overturned the liberties of
republics, the greatest number have begun their career by
paying an obsequious court to the people; commencing
demagogues, and ending tyrants.'' \50\
---------------------------------------------------------------------------
\50\ Alexander Hamilton, Federalist No. 1, at 91.
---------------------------------------------------------------------------
The Framers thus intended impeachment to reach the full
spectrum of Presidential misconduct that threatened the
Constitution. They also intended our Constitution to endure for
the ages. Because they could not anticipate and specifically
prohibit every threat a President might someday pose, the
Framers adopted a standard sufficiently general and flexible to
meet unknown future circumstances. This standard was meant--as
Mason put it--to capture all manner of ``great and dangerous
offenses'' incompatible with the Constitution. When the
President uses the powers of his high office to benefit
himself, while injuring or ignoring the American people he is
oath-bound to serve, he has committed an impeachable offense.
Applying the tools of legal interpretation, as we do below,
puts a sharper point on this definition of ``high Crimes and
Misdemeanors.'' It also confirms that the Framers principally
aimed the impeachment power at a few core evils, each grounded
in a unifying fear that a President might abandon his duty to
faithfully execute the laws. Where the President engages in
serious abuse of power, betrays the national interest through
foreign entanglements, or corrupts his office or elections, he
has undoubtedly committed ``high Crimes and Misdemeanors'' as
understood by the Framers. Any one of these violations of the
public trust is impeachable. When combined in a scheme to
advance the President's personal interests while ignoring or
injuring the Constitution, they state the strongest possible
case for impeachment and removal from office.
A. Lessons From British and Early American History
As Hamilton recounted, Britain afforded ``[t]he model from
which the idea of [impeachment] has been borrowed.'' \51\ That
was manifestly true of the phrase ``high Crimes and
Misdemeanors.'' The Framers could have authorized impeachment
for ``crimes'' or ``serious crimes.'' Or they could have
followed the practice of many American state constitutions and
permitted impeachment for ``maladministration'' or
``malpractice.'' \52\ But they instead selected a ``unique
phrase used for centuries in English parliamentary
impeachments.'' \53\ To understand their choice requires a
quick tour through history.
---------------------------------------------------------------------------
\51\ Alexander Hamilton, Federalist No. 65, at 427.
\52\ Bowman, High Crimes and Misdemeanors, at 65-72.
\53\ Constitutional Grounds for Presidential Impeachment (1974), at
4.
---------------------------------------------------------------------------
That tour offers two lessons. The first is that the phrase
``high Crimes and Misdemeanors'' was used only for
parliamentary impeachments; it was never used in the ordinary
criminal law.\54\ Moreover, in the 400-year history of British
impeachments, the House of Commons impeached many officials on
grounds that did not involve any discernibly criminal conduct.
Indeed, the House of Commons did so yet again just as the
Framers gathered in Philadelphia. That same month, Edmund
Burke--the celebrated champion of American liberty--brought
twenty-two articles of impeachment against Warren Hastings, the
Governor General of India. Burke charged Hastings with offenses
including abuse of power, corruption, disregarding treaty
obligations, and misconduct of local wars. Historians have
confirmed that ``none of the charges could fairly be classed as
criminal conduct in any technical sense.'' \55\ Aware of that
fact, Burke accused Hastings of ``[c]rimes, not against forms,
but against those eternal laws of justice, which are our rule
and our birthright: his offenses are not in formal, technical
language, but in reality, in substance and effect, High Crimes
and High Misdemeanors.'' \56\
---------------------------------------------------------------------------
\54\ See id.
\55\ Bowman, High Crimes and Misdemeanors, at 41.
\56\ Id.
---------------------------------------------------------------------------
Burke's denunciation of Hastings points to the second
lesson from British history: ``high Crimes and Misdemeanors''
were understood as offenses against the constitutional system
itself. This is confirmed by use of the word ``high,'' as well
as Parliamentary practice. From 1376 to 1787, the House of
Commons impeached officials on seven general grounds: (1) abuse
of power; (2) betrayal of the nation's security and foreign
policy; (3) corruption; (4) armed rebellion [a.k.a. treason];
(5) bribery; (6) neglect of duty; and (7) violating
Parliament's constitutional prerogatives.\57\ To the Framers
and their contemporaries learned in the law, the phrase ``high
Crimes and Misdemeanors'' would have called to mind these
offenses against the body politic.
---------------------------------------------------------------------------
\57\ Id., at 46; Berger, Impeachment, at 70.
---------------------------------------------------------------------------
The same understanding prevailed on this side of the
Atlantic. In the colonial period and under newly-ratified state
constitutions, most impeachments targeted abuse of power,
betrayal of the revolutionary cause, corruption, treason, and
bribery.\58\ Many Framers at the Constitutional Convention had
participated in drafting their state constitutions, or in
colonial and state removal proceedings, and were steeped in
this outlook on impeachment. Further, the Framers knew well the
Declaration of Independence, ``whose bill of particulars
against King George III modeled what [we would] now view as
articles of impeachment.'' \59\ That bill of particulars did
not dwell on technicalities of criminal law, but rather charged
the king with a ``long train of abuses and usurpations,''
including misuse of power, efforts to obstruct and undermine
elections, and violating individual rights.\60\
---------------------------------------------------------------------------
\58\ See Peter Charles Hoffer & N. E. H. Hull, Impeachment in
America, 1635-1805 1-106 (1984).
\59\ Laurence H. Tribe & Joshua Matz, To End a Presidency: The
Power of Impeachment 7 (2018).
\60\ The Declaration of Independence, Thomas Jefferson, et al, July
4, 1776, Copy of Declaration of Independence, Library of Congress.
---------------------------------------------------------------------------
History thus teaches that ``high Crimes and Misdemeanors''
referred mainly to acts committed by public officials, using
their power or privileges, that inflicted grave harm on society
itself. Such great and dangerous offenses included treason,
bribery, abuse of power, betrayal of the nation, and corruption
of office. They were unified by a clear theme: officials who
abused, abandoned, or sought personal benefit from their public
trust--and who threatened the rule of law if left in power--
faced impeachment and removal.
B. Treason and Bribery
For the briefest of moments at the Constitutional
Convention, it appeared as though Presidential impeachment
might be restricted to ``treason, or bribery.'' \61\ But when
this suggestion reached the floor, Mason revolted. With
undisguised alarm, he warned that such limited grounds for
impeachment would miss ``attempts to subvert the
Constitution,'' as well as ``many great and dangerous
offenses.'' \62\ Here he invoked the charges pending in
Parliament against Hastings as a case warranting impeachment
for reasons other than treason. To ``extend the power of
impeachments,'' Mason initially suggested adding ``or
maladministration'' after ``treason, or bribery.'' \63\
Madison, however, objected that ``so vague a term will be
equivalent to a tenure during the pleasure of the Senate.''
\64\ In response, Mason substituted ``other high Crimes and
Misdemeanors.'' \65\ Apparently pleased with Mason's
compromise, the Convention accepted his proposal and moved on.
---------------------------------------------------------------------------
\61\ 2 Farrand, Records of the Federal Convention, at 550.
\62\ Id.
\63\ Id.
\64\ Id
\65\ Id.
---------------------------------------------------------------------------
This discussion confirms that Presidential impeachment is
warranted for all manner of great and dangerous offenses that
subvert the Constitution. It also sheds helpful light on the
nature of impeachable offenses: in identifying ``other high
Crimes and Misdemeanors,'' we can start with two that the
Framers identified for us, ``Treason'' and ``Bribery.''
1. IMPEACHABLE TREASON
Under Article III of the Constitution, ``treason against
the United States, shall consist only in levying War against
them, or in adhering to their Enemies, giving them Aid and
Comfort.'' \66\ In other words, a person commits treason if he
uses armed force in an attempt to overthrow the government, or
if he knowingly gives aid and comfort to nations (or
organizations) with which the United States is in a state of
declared or open war. At the very heart of ``Treason'' is
deliberate betrayal of the nation and its security. Such
betrayal would not only be unforgivable, but would also confirm
that the President remains a threat if allowed to remain in
office. A President who has knowingly betrayed national
security is a President who will do so again. He endangers our
lives and those of our allies.
---------------------------------------------------------------------------
\66\ U.S. Const. Art. III, 3, cl. 1.
---------------------------------------------------------------------------
2. IMPEACHABLE BRIBERY
The essence of impeachable bribery is a government
official's exploitation of his or her public duties for
personal gain. To the Framers, it was received wisdom that
nothing can be ``a greater Temptation to Officers [than] to
abuse their Power by Bribery and Extortion.'' \67\ To guard
against that risk, the Framers authorized the impeachment of a
President who offers, solicits, or accepts something of
personal value to influence his own official actions. By
rendering such ``Bribery'' impeachable, the Framers sought to
ensure that the Nation could expel a leader who would sell out
the interests of ``We the People'' to achieve his own personal
gain.
---------------------------------------------------------------------------
\67\ William Hawkins, A Treatise of Pleas to the Crown, ch. 67,
Sec. 3 (1716).
---------------------------------------------------------------------------
Unlike ``Treason,'' which is defined in Article III,
``Bribery'' is not given an express definition in the
Constitution. But as Justice Joseph Story explained, a ``proper
exposition of the nature and limits of this offense'' can be
found in the Anglo-American common law tradition known well to
our Framers.\68\ That understanding, in turn, can be refined by
reference to the Constitution's text and the records of the
Constitutional Convention.\69\
---------------------------------------------------------------------------
\68\ 2 Story, Commentaries, at 263; see also H.R. Rep. No. 946, at
19 (1912).
\69\ For example, while the English common law tradition
principally addressed itself to judicial bribery, the Framers
repeatedly made clear at the Constitutional Convention that they
intended to subject the President to impeachment for bribery. They
confirmed this intention in the Impeachment Clause, which authorizes
the impeachment of ``[t]he President, Vice President and all civil
Officers of the United States'' for ``Treason, Bribery, or other high
Crimes and Misdemeanors.'' U.S. Const., Art. 2, Sec. 4. It is therefore
proper to draw upon common law principles and to apply them to the
office of the Presidency.
---------------------------------------------------------------------------
To start with common law: At the time of the Constitutional
Convention, bribery was well understood in Anglo-American law
to encompass offering, soliciting, or accepting bribes. In
1716, for example, William Hawkins defined bribery in an
influential treatise as ``the receiving or offering of any
undue reward, by or to any person whatsoever . . . in order to
incline him to do a thing against the known rules of honesty
and integrity.'' \70\ This description of the offense was
echoed many times over the following decades. In a renowned
bribery case involving the alleged solicitation of bribes, Lord
Mansfield agreed that ``[w]herever it is a crime to take, it is
a crime to give: they are reciprocal.'' \71\ Two years later,
William Blackstone confirmed that ``taking bribes is
punished,'' just as bribery is punishable for ``those who offer
a bribe, though not taken.'' \72\ Soliciting a bribe--even if
it is not accepted--thus qualified as bribery at common law.
Indeed, it was clear under the common law that ``the attempt is
a crime; it is complete on his side who offers it.'' \73\
---------------------------------------------------------------------------
\70\ Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2
(1716).
\71\ Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769).
\72\ William Blackstone, Commentaries on the Laws of England, Vol.
2, Book 4, Ch. 10, Sec. 17 (1771).
\73\ Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769). American
courts have subsequently repeated this precise formulation. See, e.g.,
State v. Ellis, 33 N.J.L. 102, 104 (N.J. Sup. Ct. 1868) (``The offence
is complete when an offer or reward is made to influence the vote or
action of the official.''); see also William O. Russell, A Treatise on
Crimes and Misdemeanors 239-240 (1st American Ed) (1824) (``The law
abhors the least tendency to corruption; and up on the principle which
has been already mentioned, of an attempt to commit even a misdemeanor,
being itself a misdemeanor, (f) attempts to bribe, though unsuccessful,
have in several cases been held to be criminal.'').
---------------------------------------------------------------------------
The Framers adopted that principle into the Constitution.
As Judge John Noonan explains, the drafting history of the
Impeachment Clause demonstrates that `` `Bribery' was read both
actively and passively, including the chief magistrate bribing
someone and being bribed.'' \74\ Many scholars of Presidential
impeachment have reached the same conclusion.\75\ Impeachable
``Bribery'' thus covers--inter alia--the offer, solicitation,
or acceptance of something of personal value by the President
to influence his own official actions.
---------------------------------------------------------------------------
\74\ John T. Noonan, Jr., Bribes: The Intellectual History of a
Moral Idea, 430 (1984).
\75\ As Professor Bowman writes, bribery was ``a common law crime
that developed from a narrow beginning'' to reach ``giving, and
offering to give, [any] improper rewards.'' Bowman, High Crimes &
Misdemeanors, at 243; see also, e.g., Tribe & Matz, To End A
Presidency, at 33 (``The corrupt exercise of power in exchange for a
personal benefit defines impeachable bribery. That's self-evidently
true whenever the president receives bribes to act a certain way. But
it's also true when the president offers bribes to other officials--for
example, to a federal judge, a legislator, or a member of the Electoral
College . . . In either case, the president is fully complicit in a
grave degradation of power, and he can never again be trusted to act as
a faithful public servant.'').
---------------------------------------------------------------------------
This conclusion draws still more support from a closely
related part of the common law. In the late-17th century,
``bribery'' was a relatively new offense, and was understood as
overlapping with the more ancient common law crime of
``extortion.'' \76\ ``Extortion,'' in turn, was defined as the
``abuse of public justice, which consists in any officer's
unlawfully taking, by colour of his office, from any man, any
money or thing of value, that is not due to him, or more than
is due, or before it is due.'' \77\ Under this definition, both
bribery and extortion occurred when an official used his public
position to obtain private benefits to which he was not
entitled. Conduct which qualified as bribery was therefore
``routinely punished as common law extortion.'' \78\ To the
Framers, who would have seen bribery and extortion as virtually
coextensive, when a President acted in his official capacity to
offer, solicit, or accept an improper personal benefit, he
committed ``Bribery.'' \79\
---------------------------------------------------------------------------
\76\ See James Lindgren, The Elusive Distinction Between Bribery
and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev.
815, 839 (1988).
\77\ Blackstone, Commentaries, Vol. 2, Book 4, Ch. 10, Sec. 22
(1771) (citing 1 Hawk. P. C. 170); accord Giles Jacob, A New Law-
Dictionary 102 (1782) (defining ``Extortion'' as ``an unlawful taking
by an officer, &c. by colour of his office, of any money, or valuable
thing, from a person where none at all is due, or not so much is due,
or before it is due'').
\78\ Lindgren, The Elusive Distinction, 35 UCLA L. Rev. at 839.
\79\ For all the reasons given below in our discussion of the
criminality issue, impeachable ``Bribery'' does not refer to the
meaning of bribery under modern federal criminal statutes. See also
Bowman, High Crimes & Misdemeanors, at 243-44; Tribe & Matz, To End A
Presidency, at 31-33.
---------------------------------------------------------------------------
Turning to the nature of the improper personal benefit:
because officials can be corrupted in many ways, the benefit at
issue in a bribe can be anything of subjective personal value
to the President. This is not limited to money. Indeed, given
their purposes, it would have made no sense for the Framers to
confine ``Bribery'' to the offer, solicitation, or acceptance
of money, and they expressed no desire to impose that
restriction. To the contrary, in guarding against foreign
efforts to subvert American officials, they confirmed their
broad view of benefits that might cause corruption: a person
who holds ``any Office of Profit or Trust,'' such as the
President, is forbidden from accepting ``any present, Office or
Tile, of any kind whatever, from . . . a foreign State.'' \80\
An equally pragmatic (and capacious) view applies to the
impeachable offense of ``Bribery.'' This view is further
anchored in the very same 17th and 18th century common law
treatises that were well known to the Framers. Those
authorities used broad language in defining what qualifies as a
``thing of value'' in the context of bribery: ``any undue
reward'' or any ``valuable consideration.'' \81\
---------------------------------------------------------------------------
\80\ U.S. Const, art. I, Sec. 9, cl.8.
\81\ Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2
(1716).
---------------------------------------------------------------------------
To summarize, impeachable ``Bribery'' occurs when a
President offers, solicits, or accepts something of personal
value to influence his own official actions. Bribery is thus an
especially egregious and specific example of a President
abusing his power for private gain. As Blackstone explained,
bribery is ``the genius of despotic countries where the true
principles of government are never understood''--and where ``it
is imagined that there is no obligation from the superior to
the inferior, no relative duty owing from the governor to the
governed.'' \82\ In our democracy, the Framers understood that
there is no place for Presidents who would abuse their power
and betray the public trust through bribery.
---------------------------------------------------------------------------
\82\ Blackstone, Commentaries on the Laws of England, Book 4, Ch.
10 ``Of Offenses Against Public Justice'' (1765-1770).
---------------------------------------------------------------------------
Like ``Treason,'' the offense of ``Bribery'' is thus aimed
at a President who is a continuing threat to the Constitution.
Someone who would willingly assist our enemies, or trade public
power for personal favors, is the kind of person likely to
break the rules again if they remain in office. But there is
more: both ``Treason'' and ``Bribery'' are serious offenses
with the capacity to corrupt constitutional governance and harm
the Nation itself; both involve wrongdoing that reveals the
President as a continuing threat if left in power; and both
offenses are ``plainly wrong in themselves to a person of
honor, or to a good citizen, regardless of words on the statute
books.'' \83\ Looking to the Constitution's text and history--
including the British, colonial, and early American traditions
discussed earlier--these characteristics also define ``other
high Crimes and Misdemeanors.''
---------------------------------------------------------------------------
\83\ Charles L. Black Jr. & Philip Bobbitt, Impeachment: A
Handbook, New Edition 34 (2018).
---------------------------------------------------------------------------
C. Abuse, Betrayal & Corruption
With that understanding in place, the records of the
Constitutional Convention offer even greater clarity. They
demonstrate that the Framers principally intended impeachment
for three forms of Presidential wrongdoing: serious abuse of
power, betrayal of the national interest through foreign
entanglements, and corruption of office and elections. When the
President engages in such misconduct, and does so in ways that
are recognizably wrong and injurious to our political system,
impeachment is warranted. That is proven not only by debates
surrounding adoption of the Constitution, but also by the
historical practice of the House in exercising the impeachment
power.
1. ABUSE OF POWER
As Justice Robert Jackson wisely observed, ``the purpose of
the Constitution was not only to grant power, but to keep it
from getting out of hand.'' \84\ Nowhere is that truer than in
the Presidency. As the Framers created a formidable chief
executive, they made clear that impeachment is justified for
serious abuse of power. Edmund Randolph was explicit on this
point. In explaining why the Constitution must authorize
Presidential impeachment, he warned that ``the Executive will
have great opportunitys of abusing his power.'' \85\ Madison,
too, stated that impeachment is necessary because the President
``might pervert his administration into a scheme of . . .
oppression.'' \86\ This theme echoed through the state
ratifying conventions. Advocating that New York ratify the
Constitution, Hamilton set the standard for impeachment at an
``abuse or violation of some public trust.'' \87\ In South
Carolina, Charles Pinckney agreed that Presidents must be
removed who ``behave amiss or betray their public trust.'' \88\
In Massachusetts, Reverend Samuel Stillman asked, ``With such a
prospect [of impeachment], who will dare to abuse the powers
vested in him by the people.'' \89\ Time and again, Americans
who wrote and ratified the Constitution confirmed that
Presidents may be impeached for abusing the power entrusted to
them.
---------------------------------------------------------------------------
\84\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640
(Jackson, J., concurring).
\85\ 2 Farrand, Records of the Federal Convention, at 67.
\86\ Id., at 65-66.
\87\ Alexander Hamilton, Federalist No. 65, at 426.
\88\ Berger, Impeachment, at 89.
\89\ 2 Elliot, Debates in the Several State Conventions, at 169.
---------------------------------------------------------------------------
There are at least as many ways to abuse power as there are
powers vested in the President. It would thus be an exercise in
futility to attempt a list of every conceivable abuse
constituting ``high Crimes and Misdemeanors.'' That said, abuse
of power was no vague notion to the Framers and their
contemporaries. It had a very particular meaning to them.
Impeachable abuse of power can take two basic forms: (1) the
exercise of official power in a way that, on its very face,
grossly exceeds the President's constitutional authority or
violates legal limits on that authority; and (2) the exercise
of official power to obtain an improper personal benefit, while
ignoring or injuring the national interest. In other words, the
President may commit an impeachable abuse of power in two
different ways: by engaging in forbidden acts, or by engaging
in potentially permissible acts but for forbidden reasons
(e.g., with the corrupt motive of obtaining a personal
political benefit).
The first category involves conduct that is inherently and
sharply inconsistent with the law--and that amounts to claims
of monarchical prerogative. The generation that rebelled
against King George III knew what absolute power looked like.
The Framers had other ideas when they organized our government,
and so they placed the chief executive within the bounds of
law. That means the President may exercise only the powers
expressly or impliedly vested in him by the Constitution, and
he must also respect legal limits on the exercise of those
powers (including the rights of Americans citizens). A
President who refuses to abide these restrictions, thereby
causing injury to society itself and engaging in recognizably
wrongful conduct, may be subjected to impeachment for abuse of
power.
That principle also covers conduct grossly inconsistent
with and subversive of the separation of powers. The Framers
knew that ``[t]he accumulation of all powers, legislative,
executive, and judiciary, in the same hands, . . . may justly
be pronounced the very definition of tyranny.'' \90\ To protect
liberty, they wrote a Constitution that creates a system of
checks and balances within the federal government. Some of
those rules are expressly enumerated in our founding charter;
others are implied from its structure or from the history of
inter-branch relations.\91\ When a President wields executive
power in ways that usurp and destroy the prerogatives of
Congress or the Judiciary, he exceeds the scope of his
constitutional authority and violates limits on permissible
conduct. Such abuses of power are therefore impeachable. That
conclusion is further supported by the British origins of the
phrase ``high Crimes and Misdemeanors'': Parliament repeatedly
impeached ministers for ``subvert[ing] its conception of proper
constitutional order in favor of the `arbitrary and tyrannical'
government of ambitious monarchs and their grasping minions.''
\91\
---------------------------------------------------------------------------
\90\ James Madison, Federalist No. 47, at 336.
\91\ See generally National Labor Relations Board v. Noel Canning,
et al., 573 U.S. 513 (2014).
\92\ Bowman, High Crimes and Misdemeanors, at 109.
---------------------------------------------------------------------------
The Supreme Court advanced similar logic in Ex Parte
Grossman, which held the President can pardon officials who
defy judicial orders and are held in criminal contempt of
court.\93\ This holding raised an obvious concern: what if the
President used ``successive pardons'' to ``deprive a court of
power to enforce its orders''? \94\ That could fatally weaken
the Judiciary's role under Article III of the Constitution. On
behalf of a unanimous Court, Chief Justice William Howard
Taft--who had previously served as President--explained that
``exceptional cases like this . . . would suggest a resort to
impeachment.'' \95\
---------------------------------------------------------------------------
\93\ Ex Parte Grossman, 267 U.S. 87 (1925).
\94\ Id., at 121.
\95\ Id.
---------------------------------------------------------------------------
Two impeachment inquiries have involved claims that a
President grossly violated the Constitution's separation of
powers. The first was in 1868, when the House impeached
President Andrew Johnson, who had succeeded President Abraham
Lincoln following his assassination at Ford's Theatre. There,
the articles approved by the House charged President Johnson
with conduct forbidden by law: in firing the Secretary of War,
he had allegedly violated the Tenure of Office Act, which
restricted the President's power to remove cabinet members
during the term of the President who had appointed them.\96\
President Johnson was thus accused of a facial abuse of power.
In the Senate, though, he was acquitted by a single vote
largely because the Tenure of Office Act was viewed by many
Senators as likely unconstitutional (a conclusion later adopted
by the Supreme Court in an opinion by Chief Justice Taft, who
described the Act as ``invalid'' \97\).
---------------------------------------------------------------------------
\96\ Articles of Impeachment Exhibited By The House Of
Representatives Against Andrew Johnson, President of the United States,
40th Cong. (1868).
\97\ Myers v. United States, 272 U.S. 52, 108 (1926).
---------------------------------------------------------------------------
Just over 100 years later, this Committee accused a second
chief executive of abusing his power. In a departure from prior
Presidential practice--and in contravention of Article I of the
Constitution--President Nixon had invoked specious claims of
executive privilege to defy Congressional subpoenas served as
part of an impeachment inquiry. His obstruction centered on
tape recordings, papers, and memoranda relating to the
Watergate break-in and its aftermath. As the House Judiciary
Committee found, he had interposed ``the powers of the
presidency against the lawful subpoenas of the House of
Representatives, thereby assuming to himself functions and
judgments necessary to exercise the sole power of impeachment
vested by the Constitution in the House of Representatives.
\98\ Put simply, President Nixon purported to control the
exercise of powers that belonged solely to the House and not to
him--including the power of inquiry that is vital to any
Congressional judgments about impeachment. In so doing,
President Nixon injured the constitutional plan: ``Unless the
defiance of the Committee's subpoenas under these circumstances
is considered grounds for impeachment, it is difficult to
conceive of any President acknowledging that he obligated to
supply the relevant evidence necessary for Congress to exercise
its constitutional responsibility in an impeachment
proceeding.'' \99\ The House Judiciary Committee therefore
approved an article of impeachment against President Nixon for
abuse of power in obstructing the House impeachment inquiry.
---------------------------------------------------------------------------
\98\ Committee Report on Nixon Articles of Impeachment (1974), at
188.
\99\ Id., at 213.
---------------------------------------------------------------------------
But that was only part of President Nixon's impeachable
wrongdoing. The House Judiciary Committee also approved two
additional articles of impeachment against him for abuse of
power, one for obstruction of justice and the other for using
Presidential power to target, harass, and surveil his political
opponents. These articles demonstrate the second way in which a
President can abuse power: by acting with improper motives.
This understanding of impeachable abuse of power is rooted
in the Constitution's text, which commands the President to
``faithfully execute'' the law. At minimum, that duty requires
Presidents ``to exercise their power only when it is motivated
in the public interest rather than in their private self-
interest.'' \100\ A President can thus be removed for
exercising power with a corrupt purpose, even if his action
would otherwise be permissible. As Iredell explained at the
North Carolina ratifying convention, ``the president would be
liable to impeachments [if] he had . . . acted from some
corrupt motive or other,'' or if he was ``willfully abusing his
trust.'' \101\ Madison made a similar point at Virginia's
ratifying convention. There, he observed that the President
could be impeached for abuse of the pardon power if there are
``grounds to believe'' he has used it to ``shelter'' persons
with whom he is connected ``in any suspicious manner.'' \102\
Such a pardon would technically be within the President's
authority under Article II of the Constitution, but it would
rank as an impeachable abuse of power because it arose from the
forbidden purpose of obstructing justice. To the Framers, it
was dangerous for officials to exceed their constitutional
power, or to transgress legal limits, but it was equally
dangerous (perhaps more so) for officials to conceal corrupt or
illegitimate objectives behind superficially valid acts.
---------------------------------------------------------------------------
\100\ Kent et al., Faithful Execution, at 2120, 2179.
\101\ 1998 Background and History of Impeachment Hearing, at 49.
\102\ 3 Elliott, Debates in the Several State Conventions, at 497-
98.
---------------------------------------------------------------------------
Again, President Nixon's case is instructive. After
individuals associated with his campaign committee committed
crimes to promote his reelection, he used the full powers of
his office as part of a scheme to obstruct justice. Among many
other wrongful acts, President Nixon dangled pardons to
influence key witnesses, told a senior aide to have the CIA
stop an FBI investigation into Watergate, meddled with Justice
Department immunity decisions, and conveyed secret law
enforcement information to suspects. Even if some of this
conduct was formally within the scope of President Nixon's
authority as head of the Executive Branch, it was undertaken
with illegitimate motives. The House Judiciary Committee
therefore included it within an article of impeachment charging
him with obstruction of justice. Indeed, following President
Nixon's resignation and the discovery of additional evidence
concerning obstruction, all eleven members of the Committee who
had originally voted against that article joined a statement
affirming that ``we were prepared to vote for his impeachment
on proposed Article I had he not resigned his office.'' \103\
Of course, several decades later, obstruction of justice was
also the basis for an article of impeachment against President
Clinton, though his conduct did not involve official acts.\104\
---------------------------------------------------------------------------
\103\ Committee Report on Nixon Articles of Impeachment (1974), at
361.
\104\ In President Clinton's case, the House approved the article
of impeachment for obstruction of justice. There was virtually no
disagreement in those proceedings over whether obstructing justice can
be impeachable; scholars, lawyers, and legislators on all sides of the
dispute recognized that it can be. See Daniel J. Hemel & Eric A.
Posner, Presidential Obstruction of Justice, 106 Cal. L. Rev 1277,
1305-1307 (2018).
Publicly available evidence does not suggest that the Senate's
acquittal of President Clinton was based on the view that obstruction
of justice is not impeachable. Rather, Senators who voted for acquittal
appear to have concluded that some of the factual charges were not
supported and that, even if Presidential perjury and obstruction of
justice might in some cases justify removal, the nature and
circumstances of the conduct at issue (including its predominantly
private character) rendered it insufficiently grave to warrant that
remedy.
---------------------------------------------------------------------------
Yet obstruction of justice did not exhaust President
Nixon's corrupt abuse of power. He was also accused of
manipulating federal agencies to injure his opponents, aid his
friends, gain personal political benefits, and violate the
constitutional rights of American citizens. For instance,
President Nixon improperly attempted to cause income tax audits
of his perceived political adversaries; directed the FBI and
Secret Service to engage in targeted (and unlawful)
surveillance; and formed a secret investigative unit within the
White House--financed with campaign contributions--that
utilized CIA resources in its illegal covert activities. In
explaining this additional article of impeachment, the House
Judiciary Committee stated that President Nixon's conduct was
``undertaken for his personal political advantage and not in
furtherance of any valid national policy objective.'' \105\ His
abuses of executive power were thus ``seriously incompatible
with our system of constitutional government'' and warranted
removal from office.\106\
---------------------------------------------------------------------------
\105\ Committee Report on Nixon Articles of Impeachment (1974), at
139.
\106\ Id.
---------------------------------------------------------------------------
With the benefit of hindsight, the House's decision to
impeach President Johnson is best understood in a similar
frame. Scholars now largely agree that President Johnson's
impeachment was motivated not by violations of the Tenure of
Office Act, but on his illegitimate use of power to undermine
Reconstruction and subordinate African-Americans following the
Civil War.\107\ In that period, fundamental questions about the
nature and future of the Union stood unanswered. Congress
therefore passed a series of laws to ``reconstruct the former
Confederate states into political entities in which black
Americans enjoyed constitutional protections.'' \108\ This
program, however, faced an unyielding enemy in President
Johnson, who declared that ``white men alone must manage the
south.'' \109\ Convinced that political control by African-
Americans would cause a ``relapse into barbarism,'' President
Johnson vetoed civil rights laws; when Congress overrode him,
he refused to enforce those laws.\110\ The results were
disastrous. As Annette Gordon-Reed writes, ``it would be
impossible to exaggerate how devastating it was to have a man
who affirmatively hated black people in charge of the program
that was designed to settle the terms of their existence in
post-Civil War America.'' \111\ Congress tried to compromise
with the President, but to no avail. A majority of the House
finally determined that President Johnson posed a clear and
present danger to the Nation if allowed to remain in office.
---------------------------------------------------------------------------
\107\ See generally Michael Les Benedict, The Impeachment and Trial
of Andrew Johnson (1999).
\108\ Jeffrey A. Engel, Jon Meacham, Timothy Naftali, & Peter
Baker, Impeachment: An American History 48 (2018).
\109\ Id. at 49.
\110\ Id.
\111\ See Annette Gordon-Reed, Andrew Johnson: The American
Presidents Series: the 17th President, 1865-1869 12 (2011).
---------------------------------------------------------------------------
Rather than directly target President Johnson's faithless
execution of the laws, and his illegitimate motives in wielding
power, the House resorted to charges based on the Tenure of
Office Act. But in reality, ``the shaky claims prosecuted by
[the House] obscured a far more compelling basis for removal:
that Johnson's virulent use of executive power to sabotage
Reconstruction posed a mortal threat to the nation--and to
civil and political rights--as reconstituted after the Civil
War . . . [T]he country was in the throes of a second founding.
Yet Johnson abused the powers of his office and violated the
Constitution to preserve institutions and practices that had
nearly killed the Union. He could not be allowed to salt the
earth as the Republic made itself anew.'' \112\ Viewed from
that perspective, the case for impeaching President Johnson
rested on his use of power with illegitimate motives.
---------------------------------------------------------------------------
\112\ Tribe & Matz, To End a Presidency, at 55.
---------------------------------------------------------------------------
Pulling this all together, the Framers repeatedly confirmed
that Presidents can be impeached for grave abuse of power.
Where the President engages in acts forbidden by law, or acts
with an improper motive, he has committed an abuse of power
under the Constitution. Where those abuses inflict substantial
harm on our political system and are recognizably wrong, they
warrant his impeachment and removal.\113\
---------------------------------------------------------------------------
\113\ In President Clinton's case, it was debated whether
Presidents can be impeached for acts that do not involve their official
powers. See Constitutional Grounds for Presidential Impeachment: Modern
Precedents (1998), at 6-7; Minority Staff of H. Comm. on the Judiciary,
105th Cong., Constitutional Grounds for Presidential Impeachment:
Modern Precedents Minority Views 3-4, 8-9, 13-16 (Comm. Print 1998.
Many scholars have taken the view that such private conduct may be
impeachable in extraordinary circumstances, such as where it renders
the President unviable as the leader of a democratic nation committed
to the rule of law. See, e.g., Tribe & Matz, To End A Presidency, at
10, 51; Black & Bobbitt, Impeachment, at 35. It also bears mention that
some authority supports the view that Presidents might be subject to
impeachment not for abusing their official powers, but by failing to
use them and thus engaging in gross dereliction of official duty. See,
e.g., Tribe & Matz, To End A Presidency, at 50; Akhil Reed Amar,
America's Constitution: A Biography 200 (2006); Black & Bobbitt,
Impeachment, at 34.
---------------------------------------------------------------------------
2. BETRAYAL OF THE NATIONAL INTEREST THROUGH FOREIGN ENTANGLEMENTS
It is not a coincidence that the Framers started with
``Treason'' in defining impeachable offenses. Betrayal was no
abstraction to them. They had recently waged a war for
independence in which some of their fellow citizens remained
loyal to the enemy. The infamous traitor, Benedict Arnold, had
defected to Britain less than a decade earlier. As they looked
outward, the Framers saw kings scheming for power, promising
fabulous wealth to spies and deserters. The United States could
be enmeshed in such conspiracies: ``Foreign powers,'' warned
Elbridge Gerry, ``will intermeddle in our affairs, and spare no
expense to influence them.'' \114\ The young Republic might not
survive a President who schemed with other nations, entangling
himself in secret deals that harmed our democracy.
---------------------------------------------------------------------------
\114\ Wydra & Gorod, The First Magistrate in Foreign Pay.
---------------------------------------------------------------------------
That reality loomed over the impeachment debate in
Philadelphia. Explaining why the Constitution required an
impeachment option, Madison argued that a President ``might
betray his trust to foreign powers.'' \115\ Gouverneur Morris,
who had initially opposed allowing impeachment, was convinced:
``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.'' \116\ In
the same vein, Franklin noted ``the case of the Prince of
Orange during the late war,'' in which a Dutch prince reneged
on a military treaty with France.\117\ Because there was no
impeachment power or other method of inquiry, the prince's
motives were secret and untested, drastically destabilizing
Dutch politics and giving ``birth to the most violent
animosities and contentions.'' \118\
---------------------------------------------------------------------------
\115\ 2 Farrand, Records of the Federal Convention, at 65.
\116\ Id., at 68.
\117\ Id., at 67-68.
\118\ Id.
---------------------------------------------------------------------------
Impeachment for betrayal of the Nation's interest--and
especially for betrayal of national security and foreign
policy--was hardly exotic to the Framers. ``The history of
impeachment over the centuries shows an abiding awareness of
how vulnerable the practice of foreign policy is to the
misconduct of its makers.'' \119\ Indeed, ``impeachments on
this ground were a constant of parliamentary practice,'' and
``a string of British ministers and royal advisors were
impeached for using their official powers contrary to the
country's vital foreign interests.'' \120\ Although the Framers
did not intend impeachment for genuine, good faith
disagreements between the President and Congress over matters
of diplomacy, they were explicit that betrayal of the Nation
through plots with foreign powers justified removal.
---------------------------------------------------------------------------
\119\ Frank O. Bowman, III, Foreign Policy Has Always Been at the
Heart of Impeachment, Foreign Affairs (Nov 2019).
\120\ Bowman, High Crimes & Misdemeanors, at 48, 106.
---------------------------------------------------------------------------
In particular, foreign interference in the American
political system was among the gravest dangers feared by the
Founders of our Nation and the Framers of our Constitution. For
example, in a letter to Thomas Jefferson, John Adams wrote:
``You are apprehensive of foreign Interference, Intrigue,
Influence. So am I.--But, as often as Elections happen, the
danger of foreign Influence recurs.'' \121\ And in Federalist
No. 68, Hamilton cautioned that the ``most deadly adversaries
of republican government'' may come ``chiefly from the desire
in foreign powers to gain an improper ascendant in our
councils.\122\
---------------------------------------------------------------------------
\121\ To Thomas Jefferson from John Adams, 6 December 1787,
National Archives, Founders Online.
\122\ Alexander Hamilton, Federalist No. 68, at 441.
---------------------------------------------------------------------------
The President's important role in foreign affairs does not
disable the House from evaluating whether he committed
impeachable offenses in that field. This conclusion follows
from the Impeachment Clause itself but is also supported by the
Constitution's many grants of power to Congress addressing
foreign affairs. Congress is empowered to ``declare War,''
``regulate Commerce with foreign Nations,'' ``establish an
uniform Rule of Naturalization,'' ``define and punish Piracies
and Felonies committed on the high Seas, and Offences against
the Law of Nations,'' ``grant Letters of Marque and Reprisal,''
and ``make Rules for the Government and Regulation of the land
and naval Forces.'' \123\ Congress also has the power to set
policy, define law, undertake oversight and investigations,
create executive departments, and authorize government funding
for a slew of national security matters.\124\ In addition, the
President cannot make a treaty or appoint an ambassador without
the approval of the Senate.\125\ In those respects and many
others, constitutional authority over the ``conduct of the
foreign relations of our Government'' is shared between ``the
Executive and Legislative [branches].'' \126\ Stated simply,
``the Executive is not free from the ordinary controls and
checks of Congress merely because foreign affairs are at
issue.'' \127\ In these realms, as in many others, the
Constitution ``enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.'' \128\
---------------------------------------------------------------------------
\123\ U.S. Const., Art. I, Sec. 8.
\124\ See Lawrence Friedman & Victor Hansen, There Is No
Constitutional Impediment to an Impeachment Inquiry that Concerns
National Security, Just Security, Oct. 1, 2019.
\125\ U.S. Const., Art. II, Sec. 2, cl. 2.
\126\ Medellin v. Texas, 552 U.S. 491, 511 (2008).
\127\ Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).
\128\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
(1952) (Jackson, J., concurring).
---------------------------------------------------------------------------
Accordingly, where the President uses his foreign affairs
power in ways that betray the national interest for his own
benefit, or harm national security for equally corrupt reasons,
he is subject to impeachment by the House. Any claims to the
contrary would horrify the Framers. A President who perverts
his role as chief diplomat to serve private rather than public
ends has unquestionably engaged in ``high Crimes and
Misdemeanors''--especially if he invited, rather than opposed,
foreign interference in our politics.
3. CORRUPTION OF OFFICE OR ELECTIONS
As should now be clear, the Framers feared corruption most
of all, in its many and shifting manifestations. It was
corruption that led to abuse of power and betrayal of the
Nation. It was corruption that ruined empires, debased Britain,
and menaced American freedom. The Framers saw no shortage of
threats to the Republic, and fought valiantly to guard against
them, ``but the big fear underlying all the small fears was
whether they'd be able to control corruption.'' \129\ This was
not just a matter of thwarting bribes and extortion; it was a
far greater challenge. The Framers aimed to build a country in
which officials would not use public power for personal
benefits, disregarding the public good in pursuit of their own
advancement. This virtuous principle applied with special force
to the Presidency. As Madison emphasized, because the
Presidency ``was to be administered by a single man,'' his
corruption ``might be fatal to the Republic.'' \130\
---------------------------------------------------------------------------
\129\ Teachout, Corruption in America, at 57.
\130\ Jonathan Elliot ed., Debates on the Adoption of the Federal
Constitution in the Convention Held at Philadelphia, in 1787 341 (1861)
(hereinafter ``Debates on the Adoption of the Federal Constitution'').
---------------------------------------------------------------------------
The Framers therefore sought to ensure that ``corruption
was more effectually guarded against, in the manner this
government was constituted, than in any other that had ever
been formed.'' \131\ Impeachment was central to that plan. At
one point the Convention even provisionally adopted ``treason,
bribery, or corruption'' as the standard for impeaching a
President. And no fewer than four delegates--Morris, Madison,
Mason, and Randolph--listed corruption as a reason why
Presidents must be subject to removal. That understanding
followed from history: ``One invariable theme in [centuries] of
Anglo-American impeachment practice has been corruption.''
\132\ Treason posed a threat of swift national extinction, but
the steady rot of corruption could destroy us from within.
Presidents who succumbed to that instinct, serving themselves
at the Nation's expense, forfeited the public trust.
---------------------------------------------------------------------------
\131\ 4 Elliot, Debates in the Several State Conventions, at 302.
\132\ Bowman, High Crimes & Misdemeanors, at 277.
---------------------------------------------------------------------------
Impeachment was seen as especially necessary for
Presidential conduct corrupting our system of political self-
government. That concern arose in two contexts: the risk that
Presidents would be swayed to prioritize foreign over domestic
interests, and the risk that they would place their personal
interest in re-election above our abiding commitment to
democracy. The need for impeachment peaks where both threats
converge at once.
First was the risk that foreign royals would use wealth,
power, and titles to seduce American officials. This was not a
hypothetical problem. Just a few years earlier, and consistent
with European custom, King Louis XVI of France had bestowed on
Benjamin Franklin (in his capacity as American emissary) a
snuff box decorated with 408 diamonds ``of a beautiful water.''
\133\ Magnificent gifts like this one could unconsciously shape
how American officials carried out their duties. To guard
against that peril, the Framers adopted the Foreign Emoluments
Clause, which prohibits Presidents--among other federal
officials--from accepting ``any present, Emolument, Office, or
Title, of any kind whatever, from any King, Prince, or foreign
State'' unless Congress affirmatively consents.\134\
---------------------------------------------------------------------------
\133\ Teachout, Corruption in America, at 1.
\134\ U.S. Const., Art. I, Sec. 9, cl. 8.
---------------------------------------------------------------------------
The theory of the Foreign Emoluments Clause, based in
history and the Framers' lived experience, ``is that a federal
officeholder who receives something of value from a foreign
power can be imperceptibly induced to compromise what the
Constitution insists be his exclusive loyalty: the best
interest of the United States of America.'' \135\ Rather than
scrutinize every exchange for potential bribery, the Framers
simply banned officials from receiving anything of value from
foreign powers. Although this rule sweeps broadly, the Framers
deemed it central to American self-governance. Speaking in
Philadelphia, Charles Pinckney ``urged the necessity of
preserving foreign ministers, and other officers of the United
States, independent of external influence.'' \136\ At
Virginia's convention, Randolph elaborated that ``[i]t was
thought proper, in order to exclude corruption and foreign
influence, to prohibit any one in office from receiving or
holding any emoluments from foreign states.'' \137\ Randolph
added that if the President violated the Clause, ``he may be
impeached.'' \138\
---------------------------------------------------------------------------
\135\ Norman L. Eisen, Richard Painter & Laurence H. Tribe, The
Emoluments Clause: Its Text, Meaning, And Application To Donald J.
Trump, Brookings, Dec. 16, 2016.
\136\ Elliot, Debates on the Adoption of the Federal Constitution
at 467.
\137\ 3 Elliot, Debates in the Several State Conventions, at 465.
\138\ Id., at 201.
---------------------------------------------------------------------------
The Framers also anticipated impeachment if a President
placed his own interest in retaining power above the national
interest in free and fair elections. Several delegates were
explicit on this point when the topic arose at the
Constitutional Convention. By then, the Framers had created the
Electoral College. They were ``satisfied with it as a tool for
picking presidents but feared that individual electors might be
intimidated or corrupted.'' \139\ Impeachment was their answer.
William Davie led off the discussion, warning that a President
who abused his office might seek to escape accountability by
interfering with elections, sparing ``no efforts or means
whatever to get himself re-elected.'' \140\ Rendering the
President ``impeachable whilst in office'' was thus ``an
essential security for the good behaviour of the Executive.''
\141\ The Constitution thereby ensured that corrupt Presidents
could not avoid justice by subverting elections and remaining
in office.
---------------------------------------------------------------------------
\139\ Tribe & Matz, To End A Presidency, at 4.
\140\ 2 Farrand, Records of the Federal Convention, at 64.
\141\ Id.
---------------------------------------------------------------------------
George Mason built on Davie's position, directing attention
to the Electoral College: ``One objection agst. Electors was
the danger of their being corrupted by the Candidates; & this
furnished a peculiar reason in favor of impeachments whilst in
office. Shall the man who has practised corruption & by that
means procured his appointment in the first instance, be
suffered to escape punishment, by repeating his guilt?'' \142\
Mason's concern was straightforward. He feared that Presidents
would win election by improperly influencing members of the
Electoral College (e.g., by offering them bribes). If evidence
of such wrongdoing came to light, it would be unthinkable to
leave the President in office--especially given that he might
seek to avoid punishment by corrupting the next election. In
that circumstance, Mason concluded, the President should face
impeachment and removal under the Constitution. Notably, Mason
was not alone in this view. Speaking just a short while later,
Gouverneur Morris emphatically agreed that ``the Executive
ought therefore to be impeachable for . . . Corrupting his
electors.'' \143\ Although not articulated expressly, it is
reasonable to infer that the concerns raised by Davie, Mason,
and Morris were especially salient because the Constitution--
until ratification of the Twenty-Second Amendment in 1951--did
not limit the number of terms a President could serve in
office.\144\ A President who twisted or sabotaged the electoral
process could rule for life, much like a king.
---------------------------------------------------------------------------
\142\ Id., at 65.
\143\ Id., at 69.
\144\ U.S. Const. Amend. XXII.
---------------------------------------------------------------------------
This commitment to impeaching Presidents who corruptly
interfered with elections was anchored in lessons from British
rule. As historian Gordon Wood writes, ``[t]hroughout the
eighteenth century the Crown had slyly avoided the blunt and
clumsy instrument of prerogative, and instead had resorted to
influencing the electoral process and the representatives in
Parliament in order to gain its treacherous ends.'' \145\ In
his influential Second Treatise on Civil Government, John Locke
blasted such manipulation, warning that it serves to ``cut up
the government by the roots, and poison the very fountain of
public security.'' \146\ Channeling Locke, American
revolutionaries vehemently objected to King George III's
electoral shenanigans; ultimately, they listed several
election-related charges in the Declaration of Independence.
Those who wrote our Constitution knew, and feared, that the
chief executive could threaten their plan of government by
corrupting elections.
---------------------------------------------------------------------------
\145\ Wood, The Creation of the American Republic, at 33.
\146\ John Locke, Second Treatise of Government 112 (C.B.
Macpherson ed. 1980).
---------------------------------------------------------------------------
The true nature of this threat is its rejection of
government by ``We the People,'' who would ``ordain and
establish'' the Constitution.\147\ The beating heart of the
Framers' project was a commitment to popular sovereignty. At a
time when ``democratic self- government existed almost nowhere
on earth,'' \148\ the Framers imagined a society ``where the
true principles of representation are understood and practised,
and where all authority flows from, and returns at stated
periods to, the people.'' \149\ That would be possible only if
``those entrusted with [power] should be kept in dependence on
the people.'' \150\ This is why the President, and Members of
Congress, must stand before the public for re-election on fixed
terms. It is through free and fair elections that the American
people protect their right to self-government, a right
unforgivably denied to many as the Constitution was ratified in
1788 but now extended to all American citizens over the age of
18. When the President concludes that elections threaten his
continued grasp on power, and therefore seeks to corrupt or
interfere with them, he denies the very premise of our
constitutional system. The American people choose their
leaders; a President who wields power to destroy opponents or
manipulate elections is a President who rejects democracy
itself.
---------------------------------------------------------------------------
\147\ U.S. Const. Pmbl.
\148\ Amar, America's Constitution, at 8.
\149\ 4 Elliot, Debates in the Several State Conventions, at 331;
see also James Madison, Federalist No. 14.
\150\ James Madison, Federalist No. 37, at 268.
---------------------------------------------------------------------------
In sum, the Framers discussed the risk that Presidents
would improperly conspire with foreign nations; they also
discussed the risk that Presidents would place their interest
in retaining power above the integrity of our elections. Both
offenses, in their view, called for impeachment. That is doubly
true where a President conspires with a foreign power to
manipulate elections to his benefit--conduct that betrays
American self-governance and joins the Framers' worst
nightmares into a single impeachable offense.\151\
---------------------------------------------------------------------------
\151\ 151 In fact, the Framers were so concerned about improper
foreign influence in the Presidency that they restricted that position
to natural born citizens. U.S. Const. Art. II, Sec. 1. As one
commentator observed, ``Considering the greatness of the trust, and
that this department is the ultimately efficient power in government,
these restrictions will not appear altogether useless or unimportant.
As the President is required to be a native citizen of the United
States, ambitious foreigners cannot intrigue for the office, and the
qualification of birth cuts off all those inducements from abroad to
corruption, negotiation, and war, which have frequently and fatally
harassed the elective monarchies of Germany and Poland, as well as the
pontificate at Rome.'' 1 James Kent, Commentaries on American Law 255
(1826).
---------------------------------------------------------------------------
D. Conclusion
Writing in 1833, Justice Joseph Story remarked that
impeachable offenses ``are of so various and complex a
character'' that it would be ``almost absurd'' to attempt a
comprehensive list.\152\ Consistent with Justice Story's
wisdom, ``the House has never, in any impeachment inquiry or
proceeding, adopted either a comprehensive definition of `high
Crimes and Misdemeanors' or a catalog of offenses that are
impeachable.'' \153\ Rather than engage in abstract, advisory
or hypothetical debates about the precise nature of conduct
that calls for the exercise of its constitutional powers, the
House has awaited a ``full development of the facts.'' \154\
Only then has it weighed articles of impeachment.
---------------------------------------------------------------------------
\152\ 2 Story, Commentaries, at 264.
\153\ 1998 Background and History of Impeachment Hearing, at 2.
\154\ Constitutional Grounds for Presidential Impeachment (1974),
at 2.
---------------------------------------------------------------------------
In making such judgments, however, each Member of the House
has sworn an oath to follow the Constitution, which sets forth
a legal standard governing when Presidential conduct warrants
impeachment. That standard has three main parts.
First, as Mason explained just before proposing ``high
Crimes and Misdemeanors'' as the basis for impeachment, the
President's conduct must constitute a ``great and dangerous
offense'' against the Nation. The Constitution itself offers us
two examples: ``Treason'' and ``Bribery.'' In identifying
``other'' offenses of the same kind, we are guided by
Parliamentary and early American practice, records from the
Constitutional Convention and state ratifying conventions, and
insights from the Constitution's text and structure. These
sources prove that ``high Crimes and Misdemeanors'' involve
misconduct that subverts and injures constitutional governance.
Core instances of such misconduct by the President are serious
abuse of power, betrayal of the national interest through
foreign entanglements, and corruption of office and elections.
The Framers included an impeachment power in the Constitution
specifically to protect the Nation against these forms of
wrongdoing.
Past practice of the House further illuminates the idea of
a ``great and dangerous offense.'' President Nixon's case is
most helpful. There, as explained above, the House Judiciary
Committee approved articles of impeachment on three grounds:
(1) obstruction of an ongoing law enforcement investigation
into unlawful acts by his presidential re-election campaign;
(2) abuse of power in targeting his perceived political
opponents; and (3) improper obstruction of a Congressional
impeachment inquiry into his obstruction of justice and abuse
of power. These articles of impeachment, moreover, were not
confined to discrete acts. Each of them accused President Nixon
of undertaking a course of conduct or scheme, and each of them
supported that accusation with a list of discrete acts alleged
to comprise and demonstrate the overarching impeachable
offense.\155\ Thus, where a President engages in a course of
conduct involving serious abuse of power, betrayal of the
national interest through foreign entanglements, or corruption
of office and elections, impeachment is justified.
---------------------------------------------------------------------------
\155\ Consistent with that understanding, one scholar remarks that
it is the ``repetition, pattern, [and] coherence'' of official
misconduct that ``tend to establish the requisite degree of seriousness
warranting the removal of a president from office.'' John Labovitz,
Presidential Impeachment 129-130 (1978); see also, e.g., McGinnis,
Impeachment, at 659 (``[I]t has been well understood that the
official's course of conduct as a whole should be the subject of
judgment.''); Debate On Articles Of Impeachment: Hearing before the H.
Comm. On the Judiciary, 93rd Cong. (1974) (hereinafter ``Debate on
Nixon Articles of Impeachment (1974)'') (addressing the issue
repeatedly from July 24, 1974 to July 30, 1974).
---------------------------------------------------------------------------
Second, impeachable offenses involve wrongdoing that reveal
the President as a continuing threat to the constitutional
system if he is allowed to remain in a position of political
power. As Iredell remarked, impeachment does not exist for a
``mistake.'' \156\ That is why the Framers rejected
``maladministration'' as a basis for impeachment, and it is why
``high Crimes and Misdemeanors'' are not simply unwise,
unpopular, or unconsidered acts. Like ``Treason'' and
``Bribery,'' they reflect decisions by the President to embark
on a course of conduct' or to act with motives--inconsistent
with our plan of government. Where the President makes such a
decision, Congress may remove him to protect the Constitution,
especially if there is reason to think that he will commit
additional offenses if left in office (e.g., statements by the
President that he did nothing wrong and would do it all again).
This forward-looking perspective follows from the limited
consequences of impeachment. The question is not whether to
punish the President; that decision is left to the criminal
justice system. Instead, the ultimate question is whether to
bring an early end to his four-year electoral term. In his
analysis of the Constitution, Alexis de Tocqueville thus saw
impeachment as ``a preventive measure'' which exists ``to
deprive the ill-disposed citizen of an authority which he has
used amiss, and to prevent him from ever acquiring it again.''
\157\ That is particularly true when the President injures the
Nation's interests as part of a scheme to obtain personal
benefits; someone so corrupt will again act corruptly.
---------------------------------------------------------------------------
\156\ Sunstein, Impeachment, at 59.
\157\ Alexis de Tocqueville, Democracy in America and Two Essays on
America 124-30 (Gerald E. Bevan, tr., 2003).
---------------------------------------------------------------------------
Finally, ``high Crimes and Misdemeanors'' involve conduct
that is recognizably wrong to a reasonable person. This
principle resolves a potential tension in the Constitution. On
the one hand, the Framers adopted a standard for impeachment
that could stand the test of time. On the other hand, the
structure of the Constitution--including its prohibition on
bills of attainder and the Ex Post Facto Clause--implies that
impeachable offenses should not come as a surprise.\158\
Impeachment is aimed at Presidents who believe they are above
the law, and who believe their own interests transcend those of
the country and Constitution. Of course, as President Nixon
proved, Presidents who have committed impeachable offenses may
seek to confuse the public through manufactured ambiguity and
crafty pretexts. That does not shield their misconduct from
impeachment. The principle of a plainly wrong act is not about
academic technicalities; it simply focuses impeachment on
conduct that any person of honor would recognize as wrong under
the Constitution.
---------------------------------------------------------------------------
\158\ See Black & Bobbitt, Impeachment, at 29-30.
---------------------------------------------------------------------------
To summarize: Like ``Treason'' and ``Bribery,'' and
consistent with the offenses historically considered by
Parliament to warrant impeachment, ``high Crimes and
Misdemeanors'' are great and dangerous offenses that injure the
constitutional system. Such offenses are defined mainly by
abuse of power, betrayal of the national interest through
foreign entanglements, and corruption of office and elections.
In addition, impeachable offenses arise from wrongdoing that
reveals the President as a continuing threat to the
constitutional system if allowed to remain in a position of
power. Finally, they involve conduct that reasonable officials
would consider to be wrong in our democracy.
Within these parameters, and guided by fidelity to the
Constitution, the House must judge whether the President's
misconduct is grave enough to require impeachment. That step
must never be taken lightly. It is a momentous act, justified
only when the President's full course of conduct, assessed
without favor or prejudice, is ``seriously incompatible with
either the constitutional form and principles of our government
or the proper performance of constitutional duties of the
presidential office.'' \159\ When that standard is met,
however, the Constitution calls the House to action. In such
cases, a decision not to impeach has grave consequences and
sets an ominous precedent. As Representative William Cohen
remarked in President Nixon's case, ``It also has been said to
me that even if Mr. Nixon did commit these offenses, every
other President . . . has engaged in some of the same conduct,
at least to some degree, but the answer I think is that
democracy, that solid rock of our system, may be eroded away by
degree and its survival will be determined by the degree to
which we will tolerate those silent and subtle subversions that
absorb it slowly into the rule of a few.'' \160\
---------------------------------------------------------------------------
\159\ Constitutional Grounds for Presidential Impeachment (1974),
at 27.
\160\ Debate on Nixon Articles of Impeachment (1974), at 79.
---------------------------------------------------------------------------
V. The Criminality Issue
It is occasionally suggested that Presidents can be
impeached only if they have committed crimes. That position was
rejected in President Nixon's case, and then rejected again in
President Clinton's, and should be rejected once more.\161\
---------------------------------------------------------------------------
\161\ Report of the Committee on the Judiciary, House of
Representatives, Together with Additional, Minority, and Dissenting
Views to Accompany H. Res. 611, Impeachment of William Jefferson
Clinton, President of the United States, H.R. Rep. No. 105-830 (1998)
(hereinafter ``Committee Report on Clinton Articles of Impeachment
(1998)''), at 64 (``Although, the actions of President Clinton do not
have to rise to the level of violating the federal statute regarding
obstruction of justice in order to justify impeachment.'').
Constitutional Grounds for Presidential Impeachment (1974), at 22-26.
---------------------------------------------------------------------------
Offenses against the Constitution are different in kind
than offenses against the criminal code. Some crimes, like
jaywalking, are not impeachable. Some impeachable offenses,
like abuse of power, are not crimes. Some misconduct may offend
both the Constitution and the criminal law. Impeachment and
criminality must therefore be assessed separately--even though
the commission of crimes may strengthen a case for removal.
A ``great preponderance of authority'' confirms that
impeachable offenses are ``not confined to criminal conduct.''
\162\ This authority includes nearly every legal scholar to
have studied the issue, as well as multiple Supreme Court
justices who addressed it in public remarks.\163\ More
important, the House itself has long treated ``high Crimes and
Misdemeanors'' as distinct from crimes subject to indictment.
That understanding follows from the Constitution's history,
text, and structure, and reflects the absurdities and practical
difficulties that would result were the impeachment power
confined to indictable crimes.
---------------------------------------------------------------------------
\162\ Berger, Impeachment, at 58.
\163\ See, e.g., Black & Bobbitt, Impeachment, at 33-37, 559-565;
Bowman, High Crimes and Misdemeanors, at 244-252; Tribe & Matz, To End
A Presidency, at 43-53; Sunstein, Impeachment, at 117-134; Amar,
America's Constitution, at 200-20; Charles J. Cooper, A Perjurer in the
White House?: The Constitutional Case for Perjury and Obstruction of
Justice as High Crimes and Misdemeanors, 22 Harv. J. L. & Pub. Pol'y
619, 620 (1998-1999); Michael J. Gerhardt, The Federal Impeachment
Process: A Constitutional and Historical Analysis 105-113 (3rd ed.
2019); Berger, Impeachment, at 58 (collecting sources); Merrill Otis, A
Proposed Tribunal: Is It Constitutional?, 7 Kan. City. L. Rev. 3, 22
(1938) (quoting Chief Justice Taft); Charles E. Hughes, The Supreme
Court of the United States 19 (1928) (Chief Justice Hughes); 2 Henry
Adams, History of the United States of America 223 (1962).
---------------------------------------------------------------------------
A. History
``If there is one point established by . . . Anglo-American
impeachment practice, it is that the phrase `high Crimes and
Misdemeanors' is not limited to indictable crimes.'' \164\ As
recounted above, impeachment was conceived in Parliament as a
method for controlling abusive royal ministers. Consistent with
that purpose, it was not confined to accusations of criminal
wrongdoing. Instead, it was applied to ``many offenses, not
easily definable by law,'' such as abuse of power, betrayal of
national security, corruption, neglect of duty, and violating
Parliament's constitutional prerogatives.\165\ Many officials
were impeached for non-criminal wrongs against the British
system of government; notable examples include the Duke of
Buckingham (1626), the Earl of Strafford (1640), the Lord Mayor
of London (1642), the Earl of Orford and others (1701), and
Governor General Warren Hastings (1787).\166\ Across centuries
of use, the phrase ``high Crimes and Misdemeanors'' thus
assumed a ``special historical meaning different from the
ordinary meaning of the terms `crimes' and `misdemeanors.' ''
\167\ It became a term of art confined to impeachments, without
``relation to whether an indictment would lie in the particular
circumstances.'' \168\
---------------------------------------------------------------------------
\164\ Bowman, High Crimes and Misdemeanors, at 44.
\165\ 2 Story, Commentaries, at 268.
\166\ See Bowman, High Crimes and Misdemeanors, at 44-47.
\167\ Constitutional Grounds for Presidential Impeachment (1974),
at 22.
\168\ Berger, Impeachment, at 62.
---------------------------------------------------------------------------
That understanding extended to North America. Here, the
impeachment process was used to address diverse misconduct by
public officials, ranging from abuse of power and corruption to
bribery and betrayal of the revolutionary cause.\169\ As one
scholar reports, ``American colonists before the Revolution,
and American states after the Revolution but before 1787, all
impeached officials for non-criminal conduct.'' \170\
---------------------------------------------------------------------------
\169\ Hoffer & Hull, Impeachment in America, at 1-95.
\170\ Bowman, High Crimes and Misdemeanors, at 244.
---------------------------------------------------------------------------
At the Constitutional Convention itself, no delegate linked
impeachment to the technicalities of criminal law. On the
contrary, the Framers invoked an array of broad, adaptable
terms as grounds for removal--and when the standard was
temporarily narrowed to ``treason, or bribery,'' Mason objected
that it must reach ``great and dangerous'' offenses against the
Constitution. Here he cited Burke's call to impeach Hastings,
whose acts were not crimes, but instead violated ``those
eternal laws of justice, which are our rule and our
birthright.'' \171\ To the Framers, impeachment was about abuse
of power, betrayal of nation, and corruption of office and
elections. It was meant to guard against these threats in every
manifestation--known and unknown--that might someday afflict
the Republic.
---------------------------------------------------------------------------
\171\ Edmund Burke, Reflections on the Revolution in France and
Other Writings 409 (2015).
---------------------------------------------------------------------------
That view appeared repeatedly in the state ratifying
debates. Delegates opined that the President could be impeached
if he ``deviates from his duty'' or ``dare[s] to abuse the
power vested in him by the people.'' \172\ In North Carolina,
Iredell noted that ``the person convicted [in an impeachment
proceeding] is further liable to a trial at common law, and may
receive such common-law punishment . . . if it be punishable by
that law'' (emphasis added).\173\ Similarly, in Virginia,
George Nicholas declared that the President ``will be
absolutely disqualified [by impeachment] to hold any place of
profit, honor, or trust, and liable to further punishment if he
has committed such high crimes as are punishable at common
law'' (emphasis added).\174\ The premise underlying this
statement--and Iredell's--is that some Presidential ``high
Crimes and Misdemeanors'' were not punishable by common law.
---------------------------------------------------------------------------
\172\ Quoted in Michael J. Gerhardt, Impeachment: What Everyone
Needs to Know 60 (2018).
\173\ Constitutional Grounds for Presidential Impeachment (1974),
at 23.
\174\ Id.
---------------------------------------------------------------------------
Leading minds echoed that position through the Nation's
early years. In Federalist No. 65, Hamilton argued that
impeachable offenses are defined by ``the abuse or violation of
some public trust.'' \175\ In that sense, he reasoned, ``they
are of a nature which may with peculiar propriety be
denominated POLITICAL, as they relate chiefly to injuries done
immediately to the society itself.'' \176\ A few years later,
Constitutional Convention delegate James Wilson reiterated
Hamilton's point: ``Impeachments, and offences and offenders
impeachable, come not . . . within the sphere of ordinary
jurisprudence. They are founded on different principles, are
governed by different maxims, and are directed to different
objects.'' \177\ Writing in 1829, William Rawle described
impeachment as reserved for ``men whose treachery to their
country might be productive of the most serious disasters.''
\178\ Four years later, Justice Story emphasized that
impeachable offenses ordinarily ``must be examined upon very
broad and comprehensive principles of public policy and duty.''
\179\
---------------------------------------------------------------------------
\175\ Alexander Hamilton, Federalist No. 65, at 426.
\176\ Id.
\177\ James Wilson, Collected Works of James Wilson 736 (Kermit L.
Hall and Mark David Hall ed. 2007).
\178\ William Rawle, A View of the Constitution of the United
States of America 218 (1829).
\179\ 2 Story, Commentaries, at 234.
---------------------------------------------------------------------------
The American experience with impeachment confirms that
lesson. A strong majority of the impeachments voted by the
House since 1789 have included ``one or more allegations that
did not charge a violation of criminal law.'' \180\ Several
officials, moreover, have subsequently been convicted on non-
criminal articles of impeachment. For example, Judge Robert
Archbald was removed in 1912 for non-criminal speculation in
coal properties, and Judge Halsted Ritter was removed in 1936
for the non-criminal offense of bringing his court ``into
scandal and disrepute.'' \181\ As House Judiciary Committee
Chairman Hatton Sumners stated explicitly during Judge Ritter's
case, ``We do not assume the responsibility . . . of proving
that the respondent is guilty of a crime as that term is known
to criminal jurisprudence.'' \182\ The House has also applied
that principle in Presidential impeachments. Although President
Nixon resigned before the House could consider the articles of
impeachment against him, the Judiciary Committee's allegations
encompassed many non-criminal acts.\183\ And in President
Clinton's case, the Judiciary Committee report accompanying
articles of impeachment to the House floor stated that ``the
actions of President Clinton do not have to rise to the level
of violating the federal statute regarding obstruction of
justice in order to justify impeachment.'' \184\
---------------------------------------------------------------------------
\180\ Constitutional Grounds for Presidential Impeachment (1974),
at 24.
\181\ Report of the Committee on the Judiciary, Robert W. Archbald,
Judge of the United States Commerce Court, H.R. Rep. No. 62-946 (1912);
H. Res. 422, 74th Cong. (1936) (enacted).
\182\ Berger, Impeachment, at 57.
\183\ See generally Committee Report on Nixon Articles of
Impeachment (1974).
\184\ Committee Report on Clinton Articles of Impeachment (1998),
at 66.
---------------------------------------------------------------------------
History thus affords exceptionally clear and consistent
evidence that impeachable ``high Crimes and Misdemeanors'' are
not limited to violations of the criminal code.
B. Constitutional Text and Structure
That historical conclusion is bolstered by the text and
structure of the Constitution. Starting with the text, we must
assign weight to use of the word ``high.'' That is true not
only because ``high Crimes and Misdemeanors'' was a term of art
with its own history, but also because ``high'' connotes an
offense against the State itself. Thus, ``high'' treason in
Britain was an offense against the Crown, whereas ``petit''
treason was the betrayal of a superior by a subordinate. The
Framers were aware of this when they incorporated ``high'' as a
limitation on impeachable offenses, signifying only
constitutional wrongs.
That choice is particularly noteworthy because the Framers
elsewhere referred to ``crimes,'' ``offenses,'' and
``punishment'' without using this modifier--and so we know
``the Framers knew how to denote ordinary crimes when they
wanted to do so.'' \185\ For example, the Fifth Amendment
requires a grand jury indictment in cases of a ``capital, or
otherwise infamous crime.'' \186\ The Currency Clause, in turn,
empowers Congress to ``provide for the Punishment of
counterfeiting the Securities and current Coin of the United
States.'' \187\ The Law of Nations Clause authorizes Congress
to ``define and punish Piracies and Felonies committed on the
high Seas, and Offenses against the Law of Nations.'' \188\ And
the Interstate Extradition Clause provides that ``[a] Person
charged in any State with Treason, Felony, or other Crime'' who
flees from one state to another shall be returned upon
request.\189\ Only in the Impeachment Clause did the Framers
refer to ``high'' crimes. By adding ``high'' in this one
provision, while excluding it everywhere else, the Framers
plainly sought to capture a distinct category of offenses
against the state.\190\
---------------------------------------------------------------------------
\185\ Tribe & Matz, To End a Presidency, at 40.
\186\ U.S. Const. Amend. V, Sec. 1.
\187\ U.S. Const. Art. I, Sec. 8, cl. 6.
\188\ U.S. Const. Art. I, Sec. 8, cl. 10.
\189\ U.S. Const. Art. IV, Sec. 2, cl. 2.
\190\ One might object that since ``Treason'' and ``Bribery'' are
indictable crimes, the same must be true of ``other high Crimes and
Misdemeanors.'' But this argument would fail. Although it is true that
``other high Crimes and Misdemeanors'' share certain characteristics
with ``Treason'' and ``Bribery,'' the key question is which
characteristics unify them. And for all the reasons given here, it is
wrong to conclude that criminality is the unifying principle of
impeachable offenses. Moreover, if the Framers' goal was to limit
impeachment to violations of the criminal law, it is passing strange
that the Impeachment Clause uses a term of art--``high Crimes and
Misdemeanors''--that appears neither in the criminal law itself nor
anywhere else in the Constitution (which does elsewhere refer both to
``crimes'' and ``offenses''). It would have been easy to write a
provision limiting the impeachment power to serious crimes, and yet the
Framers pointedly did not do so.
---------------------------------------------------------------------------
That interpretation is also most consistent with the
structure of the Constitution. This is true in three respects.
First, as explained above, the Impeachment Clause restricts
the consequences of impeachment to removal from office and
disqualification from future federal officeholding. That speaks
to the fundamental character of impeachment. In Justice Story's
words, it is ``a proceeding purely of a political nature. It is
not so much designed to punish an offender, as to secure the
state against gross official misdemeanors. It touches neither
his person, nor his property; but simply divests him of his
political capacity.'' \191\ Given that impeachment exists to
address threats to the political system, applies only to
political officials, and responds only by stripping political
power, it makes sense to infer that ``high Crimes and
Misdemeanors'' are offenses against the political system rather
than indictable crimes.
---------------------------------------------------------------------------
\191\ 2 Story, Commentaries, at 272.
---------------------------------------------------------------------------
Second, if impeachment were restricted to crimes,
impeachment proceedings would be restricted to deciding whether
the President had committed a specific crime. Such a view would
create tension between the Impeachment Clause and other
provisions of the Constitution. For example, the Double
Jeopardy Clause protects against being tried twice for the same
crime. Yet the Impeachment Clause contemplates that an
official, once removed, can still face ``Indictment, Trial,
Judgment and Punishment, according to Law.'' It would be
strange if the Framers forbade double jeopardy, yet allowed the
President to be tried in court for crimes after Congress
convicted him in a proceeding that necessarily (and
exclusively) decided whether he was guilty of those very same
crimes.\192\ That oddity is avoided only if impeachment
proceedings are seen ``in noncriminal terms,'' which occurs if
impeachable offenses are understood as distinct from indictable
crimes.\193\
---------------------------------------------------------------------------
\192\ See Berger, Impeachment, at 80.
\193\ Id.
---------------------------------------------------------------------------
Finally, the Constitution was originally understood as
limiting Congress's power to create a federal law of crimes. It
would therefore be strange if the Framers restricted
impeachment to criminal offenses, while denying Congress the
ability to criminalize many forms of Presidential wrongdoing
that they repeatedly described as requiring impeachment.
To set this point in context, the Constitution expressly
authorizes Congress to criminalize only a handful of wrongful
acts: ``counterfeiting, piracy, `offenses against the law of
nations,' and crimes that occur within the military.'' \194\
Early Congresses did not tread far beyond that core category of
crimes, and the Supreme Court took a narrow view of federal
power to pass criminal statutes. It was not until much later--
in the twentieth century--that the Supreme Court came to
recognize that Congress could enact a broader criminal code. As
a result, early federal criminal statutes ``covered relatively
few categories of offenses.'' \195\ Many federal offenses were
punishable only when committed ``in special places, and within
peculiar jurisdictions, as, for instance, on the high seas, or
in forts, navy-yards, and arsenals ceded to the United
States.'' \196\
---------------------------------------------------------------------------
\194\ William J. Stuntz, The Collapse of American Criminal Justice
99 (2011).
\195\ Tribe & Matz, To End a Presidency, at 48.
\196\ 2 Story, Commentaries, at 264.
---------------------------------------------------------------------------
The Framers were not fools. They authorized impeachment for
a reason, and that reason would have been gutted if impeachment
were limited to crimes. It is possible, of course, that the
Framers thought the common law, rather than federal statutes,
would define criminal offenses. That is undeniably true of
``Bribery'': the Framers saw this impeachable offense as
defined by the common law of bribery as it was understood at
the time. But it is hard to believe that the Framers saw common
law as the sole measure of impeachment. For one thing, the
common law did not address itself to many wrongs that could be
committed uniquely by the President in our republican system.
The common law would thus have been an extremely ineffective
tool for achieving the Framers' stated purposes in authorizing
impeachment. Moreover, the Supreme Court held in 1812 that
there is no federal common law of crimes.\197\ If the Framers
thought only crimes could be impeachable offenses, and hoped
common law would describe the relevant crimes, then they made a
tragic mistake--and the Supreme Court's 1812 decision ruined
their plans for the impeachment power.\198\
---------------------------------------------------------------------------
\197\ United States v. Hudson and Goodwin, 11 U.S. 32 (1812).
\198\ In the alternative, one might say that ``high Crimes and
Misdemeanors'' occur when the president violates state criminal law.
But that turns federalism upside down: invoking state criminal codes to
supply the content of the federal Impeachment Clause would grant states
a bizarre and incongruous primacy in the constitutional system.
Especially given that impeachment is crucial to checks and balances
within the federal government, it would be nonsensical for states to
effectively control when this power may be wielded by Congress.
---------------------------------------------------------------------------
Rather than assume the Framers wrote a Constitution full of
empty words and internal contradictions, it makes far more
sense to agree with Hamilton that impeachment is not about
crimes. The better view, which the House itself has long
embraced, confirms that impeachment targets offenses against
the Constitution that threaten democracy.\199\
---------------------------------------------------------------------------
\199\ Article III of the Constitution provides that ``the Trial of
all Crimes, except in Cases of Impeachment, shall be by Jury.'' Article
III, Sec. 2. This provision recognizes that impeachable conduct may
entail criminal conduct--and clarifies that in such cases, the trial of
an impeachment still occurs in the Senate, not by jury.
---------------------------------------------------------------------------
C. The Purpose of Impeachment
The distinction between impeachable offenses and crimes
also follows from the fundamentally different purposes that
impeachment and the criminal law serve. At bottom, the
impeachment power is ``the first step in a remedial process--
removal from office and possible disqualification from holding
future office.'' \200\ It exists ``primarily to maintain
constitutional government'' and is addressed exclusively to
abuses perpetrated by federal officeholders.\201\ It is through
impeachment proceedings that ``a President is called to account
for abusing powers that only a President possesses.'' \202\ The
criminal law, in contrast, ``sets a general standard of conduct
that all must follow.'' \203\ It applies to all persons within
its compass and ordinarily defines acts forbidden to everyone;
in our legal tradition, the criminal code ``does not address
itself [expressly] to the abuses of presidential power.'' \204\
---------------------------------------------------------------------------
\200\ Constitutional Grounds for Presidential Impeachment (1974),
at 24.
\201\ Id.
\202\ Id.
\203\ Id.
\204\ Id.
---------------------------------------------------------------------------
Indeed, ``the early Congresses--filled with Framers--didn't
even try to create a body of criminal law addressing many of
the specific abuses that motivated adoption of the Impeachment
Clause in the first place.'' \205\ This partly reflects ``a
tacit judgment that it [did] not deem such a code necessary.''
\206\ But that is not the only explanation. The Constitution
vests ``the sole Power of Impeachment'' in the House; it is
therefore doubtful that a statute enacted by one Congress (and
signed by the President) could bind the House at a later
date.\207\ Moreover, any such effort to define and criminalize
all impeachable offenses would quickly run aground. As Justice
Story cautioned, impeachable offenses ``are of so various and
complex a character, so utterly incapable of being defined, or
classified, that the task of positive legislation would be
impracticable, if it were not almost absurd to attempt it.''
\208\
---------------------------------------------------------------------------
\205\ Tribe & Matz, To End a Presidency, at 48-49.
\206\ Berger, Impeachment, at 78.
\207\ Committee Report on Nixon Articles of Impeachment (1974), at
25.
\208\ 2 Story, Commentaries, at 264.
---------------------------------------------------------------------------
There are also general characteristics of the criminal law
that make criminality inappropriate as an essential element of
impeachable conduct. For example, criminal law traditionally
forbids acts, rather than failures to act, yet impeachable
conduct ``may include the serious failure to discharge the
affirmative duties imposed on the President by the
Constitution.'' \209\ In addition, unlike a criminal case
focused on very specific conduct and nothing else, a
Congressional impeachment proceeding may properly consider a
broader course of conduct or scheme that tends to subvert
constitutional government.\210\ Finally, the application of
general criminal statutes to the President may raise
constitutional issues that have no bearing on an impeachment
proceeding, the whole point of which is to assess whether the
President has abused power in ways requiring his removal from
office.\211\
---------------------------------------------------------------------------
\209\ Constitutional Grounds for Presidential Impeachment (1974),
at 24
\210\ Id., at 24-25.
\211\ Robert S. Mueller, III, Report On The Investigation Into
Russian Interference In The 2016 Presidential Election, Vol. II at 170-
181 (March 2019).
---------------------------------------------------------------------------
For all these reasons, ``[a] requirement of criminality
would be incompatible with the intent of the framers to provide
a mechanism broad enough to maintain the integrity of
constitutional government. Impeachment is a constitutional
safety valve; to fulfill this function, it must be flexible
enough to cope with exigencies not now foreseeable.'' \212\
---------------------------------------------------------------------------
\212\ Constitutional Grounds for Presidential Impeachment (1974),
at 25.
---------------------------------------------------------------------------
D. The Limited Relevance of Criminality
As demonstrated, the President can commit ``high Crimes and
Misdemeanors'' without violating federal criminal law. ``To
conclude otherwise would be to ignore the original meaning,
purpose and history of the impeachment power; to subvert the
constitutional design of a system of checks and balances; and
to leave the nation unnecessarily vulnerable to abusive
government officials.'' \213\ Yet the criminal law is not
irrelevant. ``Our criminal codes identify many terrible acts
that would surely warrant removal if committed by the chief
executive.'' \214\ Moreover, the President is sworn to uphold
the law. If he violates it while grossly abusing power,
betraying the national interest through foreign entanglements,
or corrupting his office or elections, that weighs in favor of
impeaching him.
---------------------------------------------------------------------------
\213\ Keith E. Whittington, Must Impeachable Offenses Be Violations
of the Criminal Code?, Lawfare, Nov. 19, 2019.
\214\ Tribe & Matz, To End a Presidency, at 51.
---------------------------------------------------------------------------
VI. Addressing Fallacies About Impeachment
Since the House began its impeachment inquiry, a number of
inaccurate claims have circulated about how impeachment works
under the Constitution. To assist the Committee in its
deliberations, we address six issues of potential relevance:
(1) the law that governs House procedures for impeachment; (2)
the law that governs the evaluation of evidence, including
where the President orders defiance of House subpoenas; (3)
whether the President can be impeached for the abuse of his
executive powers; (4) whether the President's claims regarding
his motives must be accepted at face value; (5) whether the
President is immune from impeachment if he attempts an
impeachable offense but is caught before he completes it; and
(6) whether it is preferable to await the next election when a
President has sought to corrupt that very same election.
A. The Impeachment Process
It has been argued that the House has not followed proper
procedure in its ongoing impeachment inquiry. We have
considered those arguments and find that they lack merit.
To start with first principles, the Constitution vests the
House with the ``sole Power of Impeachment.'' \215\ It also
vests the House with the sole power to ``determine the Rules of
its Proceedings.'' \216\ These provisions authorize the House
to investigate potential ``high Crimes and Misdemeanors,'' to
draft and debate articles of impeachment, and to establish
whatever rules and procedures it deems proper for those
proceedings.\217\
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\215\ U.S. Const. Art. I, Sec. 2, cl. 5.
\216\ U.S. Const. Art. I, Sec. 5, cl. 2.
\217\ See David Pozen, Risk-Risk Tradeoffs in Presidential
Impeachment, Take Care, Jun. 6, 2018 (``Both chambers of Congress enjoy
vast discretion in how they run impeachment proceedings.'').
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When the House wields its constitutional impeachment power,
it functions like a grand jury or prosecutor: its job is to
figure out what the President did and why he did it, and then
to decide whether the President should be charged with
impeachable offenses. If the House approves any articles of
impeachment, the President is entitled to present a full
defense at trial in the Senate. It is thus in the Senate, and
not in the House, where the President might properly raise
certain protections associated with trials.\218\
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\218\ Contra Letter from Pat A. Cipollone, Counsel to the
President, to Hon. Nancy Pelosi, Speaker of the House, Hon. Adam B.
Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Hon. Eliot L.
Engel, Chairman, H. Foreign Affairs Comm., and Hon. Elijah E. Cummings,
Chairman, H. Comm. on Oversight and Reform (Oct. 8, 2019); Leader
McCarthy Speech Against the Sham Impeachment Vote, Kevin McCarthy,
Republican Leader, Oct. 31, 2019.
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Starting in May 2019, the Judiciary Committee undertook an
inquiry to determine whether to recommend articles of
impeachment against President Trump. The Committee subsequently
confirmed, many times, that it was engaged in an impeachment
investigation. On June 11, 2019, the full House approved a
resolution confirming that the Judiciary Committee possessed
``any and all necessary authority under Article I of the
Constitution'' to continue its investigation; an accompanying
Rules Committee Report emphasized that the ``purposes'' of the
inquiry included ``whether to approve `articles of impeachment
with respect to the President.' '' \219\ As the Judiciary
Committee continued with its investigation, evidence came to
light that President Trump may have grossly abused the power of
his office in dealings with Ukraine. At that point, the House
Permanent Select Committee on Intelligence, and the House
Oversight and Foreign Affairs Committees, began investigating
potential offenses relating to Ukraine. On September 24, 2019,
House Speaker Nancy Pelosi directed these committees, as well
as the House Judiciary, Financial Services and Ways and Means
Committees, to ``proceed with their investigations under that
umbrella of [an] impeachment inquiry.'' \220\ Finally, on
October 31, 2019, the full House approved H. Res. 660, which
directed the six committees ``to continue their ongoing
investigations as part of the existing House of Representatives
inquiry into whether sufficient grounds exist for the House of
Representatives to exercise its Constitutional power to impeach
Donald John Trump, President of the United States of America.''
\221\
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\219\ H. Res. 430, 116th Cong. (2019); Authorizing the Committee on
the Judiciary to Initiate or Intervene in Judicial Proceedings to
Enforce Certain Subpoenas and for Other Purposes To Accompany H. Res.
430, H.R. Rep. 116-108, at 21 (2019).
\220\ Pelosi Remarks Announcing Impeachment Inquiry, Sep. 24 2019,
Nancy Pelosi, Speaker of the House.
\221\ H. Res. 660, 116th Cong. (2019).
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This approach to investigating potential impeachable
offenses adheres to the Constitution, the Rules of the House,
and historical practice.\222\ House Committees have frequently
initiated and made substantial progress in impeachment
inquiries before the full House considered a resolution
formalizing their efforts. That is what happened in the cases
of Presidents Johnson and Nixon, as well as in many judicial
impeachments (which are subject to the same constitutional
provisions).\223\ Indeed, numerous judges have been impeached
without any prior vote of the full House authorizing a formal
inquiry.\224\ It is both customary and sensible for
committees--particularly the Judiciary Committee--to
investigate evidence of serious wrongdoing before decisions are
made by the full House.
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\222\ See generally H.R. Rep. No. 116-108.
\223\ See 3 Hinds Ch. 75 Sec. 2400 (President Johnson); 3 Deschler
Ch. 14, Sec. 15 (President Nixon); H.R. Rep. No. 101-36, at 13-16
(1988) (Judge Walter Nixon); H.R. Res. 320, 100th Cong. (Judge Alcee
Hastings); H.R. Rep. No. 99-688, at 3-7 (1986) (Judge Harry Claiborne);
3 Deschler Ch. 14 Sec. 5 (Justice William O. Douglas).
\224\ See H. Res. 87, 101st Cong. (1989) (impeaching Judge Nixon);
H. Res. 499, 100th Cong. (1988) (impeaching Judge Hastings); H. Res.
461, 99th Cong. (1986) (impeaching Judge Claiborne).
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In such investigations, the House's initial task is to
gather evidence. As is true of virtually any competent
investigation, whether governmental or private, the House has
historically conducted substantial parts of the initial fact-
finding process out of public view to ensure more accurate and
complete testimony.\225\ In President Nixon's case, for
instance, only the Judiciary Committee Chairman, Ranking
Member, and Committee staff had access to material gathered by
the impeachment inquiry in its first several months.\226\ There
was no need for similar secrecy in President Clinton's case,
but only because the House did not engage in a substantial
investigation of its own; it largely adopted the facts set
forth in a report by Independent Counsel Kenneth Starr, who had
spent years investigating behind closed doors.\227\
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\225\ See Tribe & Matz, To End A Presidency, at 92 (``Historically,
the House and Senate have investigated through their committees . . .
Critically, although they may involve occasional public hearings, most
investigatory activities must be kept secret until they have nearly
reached an end.'').
\226\ Debate on Nixon Articles of Impeachment (1974), at 86.
\227\ Committee Report on Clinton Articles of Impeachment (1998),
at 300.
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When grand juries and prosecutors investigate wrongdoing by
private citizens and public officials, the person under
investigation has no right to participate in the examination of
witnesses and evidence that precedes a decision on whether to
file charges. That is black letter law under the Constitution,
even in serious criminal cases that threaten loss of life or
liberty. The same is true in impeachment proceedings, which
threaten only loss of public office. Accordingly, even if the
full panoply of rights held by criminal defendants
hypothetically were to apply in the non-criminal setting of
impeachment, the President has no ``due process right'' to
interfere with, or inject himself into, the House's fact-
finding efforts. If the House ultimately approves articles of
impeachment, any rights that the President might hold are
properly secured at trial in the Senate, where he may be
afforded an opportunity to present an evidentiary defense and
test the strength of the House's case.
Although under no constitutional or other legal obligation
to do so, but consistent with historical practice, the full
House approved a resolution--H. Res. 660--that ensures
transparency, allows effective public hearings, and provides
the President with opportunities to participate. The privileges
afforded under H. Res. 660 are even greater than those provided
to Presidents Nixon and Clinton. They allow the President or
his counsel to participate in House Judiciary Committee
proceedings by presenting their case, responding to evidence,
submitting requests for additional evidence, attending hearings
(including non-public hearings), objecting to testimony, and
cross-examining witnesses. In addition, H. Res. 660 gave the
minority the same rights to question witnesses that the
majority has, as has been true at every step of this
impeachment proceeding.
The impeachment inquiry concerning President Trump has thus
complied in every respect with the Constitution, the Rules of
the House, and historic practice of the House.
B. Evidentiary Considerations and Presidential Obstruction
The House impeachment inquiry has compiled substantial
direct and circumstantial evidence bearing on the question
whether President Trump may have committed impeachable
offenses. President Trump has objected that some of this
evidence comes from witnesses lacking first-hand knowledge of
his conduct. In the same breath, though, he has ordered
witnesses with first-hand knowledge to defy House subpoenas for
testimony and documents--and has done so in a categorical,
unqualified manner. President Trump's evidentiary challenges
are misplaced as a matter of constitutional law and common
sense.
The Constitution does not prescribe rules of evidence for
impeachment proceedings in the House or Senate. Consistent with
its sole powers to impeach and to determine the rules of its
proceedings, the House is constitutionally authorized to
consider any evidence that it believes may illuminate the
issues before it. At this fact-finding stage, ``no technical
`rules of evidence' apply,'' and ``[e]vidence may come from
investigations by committee staff, from grand jury matter made
available to the committee, or from any other source.'' \228\
The House may thus ``subpoena documents, call witnesses, hold
hearings, make legal determinations, and undertake any other
activities necessary to fulfill [its] mandate.'' \229\ When
deciding whether to bring charges against the President, the
House is not restricted by the Constitution in deciding which
evidence to consider or how much weight to afford it.
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\228\ Black & Bobbitt, Impeachment, at 9.
\229\ Tribe & Matz, To End a Presidency, at 129.
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Indeed, were rules of evidence to apply anywhere, it would
be in the Senate, where impeachments are tried. Yet the Senate
does not treat the law of evidence as controlling at such
trials.\230\ As one scholar explains, ``rules of evidence were
elaborated primarily to hold juries within narrow limits. They
have no place in the impeachment process. Both the House and
the Senate ought to hear and consider all evidence which seems
relevant, without regard to technical rules. Senators are in
any case continually exposed to `hearsay' evidence; they cannot
be sequestered and kept away from newspapers, like a jury.''
\231\
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\230\ Gerhardt, The Federal Impeachment Process, at 42 (``[E]ven if
the Senate could agree on such rules for impeachment trials, they would
not be enforceable against or binding on individual senators, each of
whom traditionally has had the discretion in an impeachment trial to
follow any evidentiary standards he or she sees fit.'').
\231\ Black & Bobbitt, Impeachment, at 18. see also Gerhardt, The
Federal Impeachment Process, at 117 (``Both state and federal courts
require special rules of evidence to make trials more efficient and
fair or to keep certain evidence away from a jury, whose members might
not understand or appreciate its reliability, credibility, or
potentially prejudicial effect.'').
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Instead of adopting abstract or inflexible rules, the House
and Senate have long relied on their common sense and good
judgment to assess evidence in impeachments. When evidence is
relevant but there is reason to question its reliability, those
considerations affect how much weight the evidence is given,
not whether it can be considered at all.
Here, the factual record is formidable and includes many
forms of highly reliable evidence. It goes without saying,
however, that the record might be more expansive if the House
had full access to the documents and testimony it has lawfully
subpoenaed from government officials. The reason the House
lacks such access is an unprecedented decision by President
Trump to order a total blockade of the House impeachment
inquiry.
In contrast, the conduct of prior chief executives
illustrates the lengths to which they complied with impeachment
inquiries. As President James Polk conceded, the ``power of the
House'' in cases of impeachment ``would penetrate into the most
secret recesses of the Executive Departments,'' and ``could
command the attendance of any and every agent of the
Government, and compel them to produce all papers, public or
private, official or unofficial, and to testify on oath to all
facts within their knowledge.'' \232\ Decades later, when the
House conducted an impeachment inquiry into President Johnson,
it interviewed cabinet officials and Presidential aides,
obtained extensive records, and heard testimony about
conversations with Presidential advisors.\233\ Presidents
Grover Cleveland, Ulysses S. Grant, and Theodore Roosevelt each
confirmed that Congress could obtain otherwise-shielded
executive branch documents in an impeachment inquiry.\234\ And
in President Nixon's case--where the President's refusal to
turn over tapes led to an article of impeachment--the House
Judiciary Committee still heard testimony from his chief of
staff (H.R. Haldeman), special counsel (Charles Colson),
personal attorney (Herbert Kalmbach), and deputy assistant
(Alexander Butterfield). Indeed, with respect to the Senate
Watergate investigation, President Nixon stated: ``All members
of the White House Staff will appear voluntarily when requested
by the committee. They will testify under oath, and they will
answer fully all proper questions.'' \235\ President Trump's
categorical blockade of the House impeachment inquiry has no
analogue in the history of the Republic.\236\
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\232\ H.R. Jour., 29th Cong., 1st Sess., 693 (1846); 4 James D.
Richardson ed., Messages and Papers of Presidents 434-35 (1896).
\233\ See generally Reports of Committees, Impeachment
Investigation, 40th Cong., 1st Sess. 183-578 (1867).
\234\ See Jonathan David Shaub, The Executive's Privilege:
Rethinking the President's Power to Withhold Information, Lawfare (Oct.
31, 2019).
\235\ The President's Remarks Announcing Developments and
Procedures to be Followed in Connection with the Investigation, The
White House Apr. 17, 1973. President Nixon initially stated that
members of his ``personal staff'' would ``decline a request for a
formal appearance before a committee of the Congress,'' but reversed
course approximately one month later., Statement by the President,
Executive Privilege The White House Mar. 12, 1973.
\236\ See Tribe & Matz, To End A Presidency, at 129 (``Congress's
investigatory powers are at their zenith in the realm of impeachment.
They should ordinarily overcome almost any claim of executive privilege
asserted by the president.'').
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As a matter of constitutional law, the House may properly
conclude that a President's obstruction of Congress is relevant
to assessing the evidentiary record in an impeachment inquiry.
For centuries, courts have recognized that ``when a party has
relevant evidence within his control which he fails to produce,
that failure gives rise to an inference that the evidence is
unfavorable to him.'' \237\ Moreover, it is routine for courts
to draw adverse inferences where a party acts in bad faith to
conceal or destroy evidence or preclude witnesses from
testifying.\238\ Although those judicial rules do not control
here, they are instructive in confirming that parties who
interfere with fact-finding processes can suffer an evidentiary
sanction. Consistent with that commonsense principle, the House
has informed the administration that defiance of subpoenas at
the direction or behest of the President or the White House
could justify an adverse inference against the President. In
light of President Trump's unlawful and unqualified direction
that governmental officials violate their legal
responsibilities to Congress, as well as his pattern of witness
intimidation, the House may reasonably infer that their
testimony would be harmful to the President--or at least not
exculpatory. If this evidence were helpful to the President, he
would not break the law to keep it hidden, nor would he engage
in public acts of harassment to scare other witnesses who might
consider coming forward.\239\
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\237\ Int'l Union, United Auto., Aerospace & Agr. Implement Workers
of Am. (UAW) v. N. L. R. B., 459 F.2d 1329, 1336 (D.C. Cir. 1972); see
also Interstate Circuit v. United States, 306 U.S. 208, 225-26 (1939);
Rossi v. United States, 289 U.S. 89, 91-92 (1933); Mammoth Oil Co. v.
United States, 275 U.S. 13, 51-53 (1927); Burdine v. Johnson, 262 F.3d
336, 366 (5th Cir. 2001) (collecting cases); United States v. Pitts,
918 F.2d 197, 199 (D.C. Cir. 1990) (holding that, where a missing
witness has ``so much to offer that one would expect [him] to take the
stand,'' and where ``one of the parties had some special ability to
produce him,'' the law allows an inference ``that the missing witness
would have given testimony damaging to that party'').
\238\ See, e.g., Bracey v. Grondin, 712 F.3d 1012, 1018 (7th Cir.
2013); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,
107 (2d Cir. 2002); Nation-Wide Check Corp. v. Forest Hills
Distributors, Inc., 692 F.2d 214, 217 (1st Cir. 1982); see also 2 Jones
on Evidence Sec. 13:12 & Sec. 13:15 (7th ed. 2019 update).
\239\ If the President could order all Executive Branch agencies
and officials to defy House impeachment inquiries, and if the House
were unable to draw any inferences from that order with respect to the
President's alleged misconduct, the impeachment power would be a
nullity in many cases where it plainly should apply.
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One noteworthy result of President Trump's obstruction is
that the House has been improperly denied testimony by certain
government officials who could have offered first-hand accounts
of relevant events. That does not leave the House at sea: there
is still robust evidence, both documentary and testimonial,
bearing directly on his conduct and motives. But especially
given the President's obstruction of Congress, the House is
free under the Constitution to consider reliable testimony from
officials who overheard--or later learned about--statements by
the President to witnesses whose testimony he has blocked.\240\
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\240\ Under the Federal Rules of Evidence--which, again, are not
applicable in Congressional impeachment proceedings--judges sometimes
limit witnesses from offering testimony about someone else's out-of-
court statements. They do so for reasons respecting reliability and
with an eye to the unique risks presented by unsophisticated juries
that may not properly evaluate evidence. But because hearsay evidence
can in fact be highly reliable, and because it is ``often relevant,''
Tome v. United States, 513 U.S. 150, 163 (1995), there are many
circumstances in which such testimony is admissible in federal judicial
proceedings. Those circumstances include, but are by no means limited
to, recorded recollections, records of regularly conducted activity,
records of a public office, excited utterances, and statements against
penal or other interest. Moreover, where hearsay evidence bears indicia
of reliability, it is regularly used in many other profoundly important
contexts, including federal sentencing and immigration proceedings.
See, e.g., Arrazabal v. Barr, 929 F.3d 451, 462 (7th Cir. 2019); United
States v. Mitrovic, 890 F.3d 1217, 1222 (11th Cir. 2018); United States
v. Woods, 596 F.3d 445, 448 (8th Cir. 2010). Ironically, although some
have complained that hearings related to the Ukraine affair initially
occurred out of public sight, one reason for that measure was to ensure
the integrity of witness testimony. Where multiple witnesses testified
to the same point in separate, confidential hearings, that factual
conclusion may be seen as corroborated and more highly reliable.
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To summarize: just like grand jurors and prosecutors, the
House is not subject to rigid evidentiary rules in deciding
whether to approve articles. Members of the House are trusted
to fairly weigh evidence in an impeachment inquiry. Where the
President illegally seeks to obstruct such an inquiry, the
House is free to infer that evidence blocked from its view is
harmful to the President's position. It is also free to rely on
other relevant, reliable evidence that illuminates the ultimate
factual issues. The President has no right to defy an
impeachment inquiry and then demand that the House turn back
because it lacks the very evidence he unlawfully concealed. If
anything, such conduct confirms that the President sees himself
as above the law and may therefore bear on the question of
impeachment.\241\
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\241\ The President has advanced numerous arguments to justify his
across-the-board defiance of the House impeachment inquiry. These
arguments lack merit. As this Committee recognized when it impeached
President Nixon for obstruction of Congress, the impeachment power
includes a corresponding power of inquiry that allows the House to
investigate the Executive Branch and compel compliance with its
subpoenas.
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C. Abuse of Presidential Power is Impeachable
The powers of the President are immense, but they are not
absolute. That principle applies to the current President just
as it applied to his predecessors. President Nixon erred in
asserting that ``when the President does it, that means it is
not illegal.'' \242\ And President Trump was equally mistaken
when he declared he had ``the right to do whatever I want as
president.'' \243\ The Constitution always matches power with
constraint. That is true even of powers vested exclusively in
the chief executive. If those powers are invoked for corrupt
reasons, or in an abusive manner that threatens harm to
constitutional governance, the President is subject to
impeachment for ``high Crimes and Misdemeanors.''
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\242\ Document: Transcript of David Frost's Interview with Richard
Nixon, 1977, Teaching American History.
\243\ Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump
Falsely Says the Constitution Gives Him ``The Right To Do Whatever I
Want'', The Washington Post, July 23, 2019.
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This conclusion follows from the Constitution's history and
structure. As explained above, the Framers created a formidable
Presidency, which they entrusted with ``the executive Power''
and a host of additional authorities. For example, the
President alone can confer pardons, sign or veto legislation,
recognize foreign nations, serve as Commander in Chief of the
armed forces, and appoint or remove principal officers. The
President also plays a significant (though not exclusive) role
in conducting diplomacy, supervising law enforcement, and
protecting national security. These are daunting powers for any
one person to wield. If put to nefarious ends, they could wreak
havoc on our democracy.
The Framers knew this. Fearful of tyranny in all its forms,
they saw impeachment as a necessary guarantee that Presidents
could be held accountable for how they exercised executive
power. Many delegates at the Constitutional Convention and
state ratifying conventions made this point, including Madison,
Randolph, Pinckney, Stillman, and Iredell. Their view was
widely shared. As James Wilson observed in Pennsylvania, ``we
have a responsibility in the person of our President''--who is
``possessed of power''--since ``far from being above the
laws,'' he is ``amenable to them . . . by impeachment.'' \244\
Hamilton struck the same note. In Federalist No. 70, he
remarked that the Constitution affords Americans the ``greatest
securities they can have for the faithful exercise of any
delegated power,'' including the power to discover ``with
facility and clearness'' any misconduct requiring ``removal
from office.'' \245\ Impeachment and executive power were thus
closely intertwined in the Framers' constitutional plan: the
President could be vested with awesome power, but only because
he faced removal from office for grave abuses.
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\244\ 2 Elliot, Debates in the Several State Conventions, at 480.
\245\ Alexander Hamilton, Federalist No. 70, at 456.
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The architects of checks and balances meant no exceptions
to this rule. There is no power in the Constitution that a
President can exercise immune from legal consequence. The
existence of any such unchecked and uncheckable authority in
the federal government would offend the bedrock principle that
nobody is above the law. It would also upend the reasons why
our Framers wrote impeachment into the Constitution: the exact
forms of Presidential wrongdoing that they discussed in
Philadelphia could be committed through use of executive
powers, and it is unthinkable that the Framers left the Nation
defenseless in such cases. In fact, when questioned by Mason in
Virginia, Madison expressly stated that the President could be
impeached for abuse of his exclusive pardon power--a view that
the Supreme Court later echoed in Ex Parte Grossman.\246\ By
the same token, a President could surely be impeached for
treason if he fired the Attorney General to thwart the
unmasking of an enemy spy in wartime; he could impeached for
bribery if he offered to divulge state secrets to a foreign
nation, conditioned on regulatory exemptions for his family
business.\247\ Simply put, ``the fact that a power is exclusive
to the executive--that is, the president alone may exercise
it--does not mean the power cannot be exercised in clear bad
faith, and that Congress cannot look into or act upon knowledge
of that abuse.'' \248\
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\246\ 3 Elliot, Debates in the Several State Conventions, 497-98;
Ex Parte Grossman, 267 U.S. at 121. Madison adhered to this
understanding after the Constitution was ratified. In 1789, he
explained to his colleagues in the House that the President would be
subject to impeachment for abuse of the removal power--which is held by
the President alone--``if he suffers [his appointees] to perpetrate
with impunity High crimes or misdemeanors against the United States, or
neglects to superintend their conduct, so as to check their excesses.''
1 Annals of Congress 387 (1789).
\247\ Scholars have offered many examples and hypotheticals that
they see as illustrative of this point. See Bowman, High Crimes and
Misdemeanors, at 258; Black & Bobbitt, Impeachment, 115; Hemel &
Posner, Presidential Obstruction of Justice, at 1297; Tribe & Matz, To
End a Presidency, at 61.
\248\ Jane Chong, Impeachment-Proof? The President's
Unconstitutional Abuse of His Constitutional Powers, Lawfare, Jan. 2
2018.
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The rule that abuse of power can lead to removal
encompasses all three branches. The Impeachment Clause applies
to ``The President, Vice President and all civil Officers of
the United States,'' including Article III judges.\249\ There
is no exception to impeachment for misconduct by federal judges
involving the exercise of their official powers. In fact, the
opposite is true: ``If in the exercise of the powers with which
they are clothed as ministers of justice, [judges] act with
partiality, or maliciously, or corruptly, or arbitrarily, or
oppressively, they may be called to an account by
impeachment.'' \250\ Similarly, if Members of Congress exercise
legislative power abusively or with corrupt purposes, they may
be removed pursuant to the Expulsion Clause, which permits each
house of Congress to expel a member ``with the Concurrence of
two thirds.'' \251\ Nobody is entitled to wield power under the
Constitution if they ignore or betray the Nation's interests to
advance their own.
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\249\ U.S. Const. Art. II, 4.
\250\ Bradley v. Fisher 80 U.S. 335, 350 (1871).
\251\ U.S. Const. Art. I, Sec. 5, cl. 2.
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This is confirmed by past practice of the House. President
Nixon's case directly illustrates the point. As head of the
Executive Branch, he had the power to appoint and remove law
enforcement officials, to issue pardons, and to oversee the
White House, IRS, CIA, and FBI. But he did not have any warrant
to exercise these Presidential powers abusively or corruptly.
When he did so, the House Judiciary Committee properly approved
multiple articles of impeachment against him. Several decades
later, the House impeached President Clinton. There, the House
witnessed substantial disagreement over whether the President
could be impeached for obstruction of justice that did not
involve using the powers of his office. But it was universally
presumed--and never seriously questioned--that the President
could be impeached for obstruction of justice that did involve
abuse of those powers.\252\ That view rested firmly on a
correct understanding of the Constitution.
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\252\ See generally 1998 Background and History of Impeachment
Hearing.
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Our Constitution rejects pretensions to monarchy and binds
Presidents with law. A President who sees no limit on his power
manifestly threatens the Republic.
D. Presidential Pretexts Need Not Be Accepted at Face Value
Impeachable offenses are often defined by corrupt intent.
To repeat Iredell, ``the president would be liable to
impeachments [if] he had acted from some corrupt motive or
other,'' or if he was ``willfully abusing his trust.'' \253\
Consistent with that teaching, both ``Treason'' and ``Bribery''
require proof that the President acted with an improper state
of mind, as would many other offenses described as impeachable
at the Constitutional Convention. Contrary to occasional
suggestions that the House may not examine the President's
intent, an impeachment inquiry may therefore require the House
to determine why the President acted the way he did.
Understanding the President's motives may clarify whether he
used power in forbidden ways, whether he was faithless in
executing the laws, and whether he poses a continuing danger to
the Nation if allowed to remain in office.
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\253\ Id., at 49.
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When the House probes a President's state of mind, its
mandate is to find the facts. There is no room for legal
fictions or lawyerly tricks that distort a clear assessment of
the President's thinking. That means evaluating the President's
explanations to see if they ring true. The question is not
whether the President's conduct could have resulted from
innocent motives. It is whether the President's real reasons--
the ones actually in his mind as he exercised power--were
legitimate. The Framers designed impeachment to root out abuse
and corruption, even when a President masks improper intent
with cover stories.
Accordingly, where the President's explanation of his
motives defies common sense, or is otherwise unbelievable, the
House is free to reject the pretextual explanation and to
conclude that the President's false account of his thinking is
itself evidence that he acted with corrupt motives. The
President's honesty in an impeachment inquiry, or his lack
thereof, can thus shed light on the underlying issue.\254\
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\254\ See Tribe & Matz, To End A Presidency, at 92 (``Does the
president admit error, apologize, and clean house? Does he prove his
innocence, or at least his reasonable good faith? Or does he lie and
obstruct until the bitter end? Maybe he fires investigators and
stonewalls prosecutors? . . . These data points are invaluable when
Congress asks whether leaving the president in office would pose a
continuing threat to the nation.'').
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President Nixon's case highlights the point. In its
discussion of an article of impeachment for abuse of power, the
House Judiciary Committee concluded that he had ``falsely used
a national security pretext'' to direct executive agencies to
engage in unlawful electronic surveillance investigations, thus
violating ``the constitutional rights of citizens.'' \255\ In
its discussion of the same article, the Committee also found
that President Nixon had interfered with the Justice Department
by ordering it to cease investigating a crime ``on the pretext
that it involved national security.'' \256\ President Nixon's
repeated claim that he had acted to protect national security
could not be squared with the facts, and so the Committee
rejected it in approving articles of impeachment against him
for targeting political opponents.
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\255\ Committee Report on Nixon Articles of Impeachment (1974), at
146.
\256\ Id., at 179.
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Testing whether someone has falsely characterized their
motives requires careful attention to the facts. In rare cases,
``some implausible, fantastic, and silly explanations could be
found to be pretextual without any further evidence.'' \257\
Sifting truth from fiction, though, usually demands a thorough
review of the record--and a healthy dose of common sense. The
question is whether ``the evidence tells a story that does not
match the explanation.'' \258\
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\257\ Purkett v. Elem, 514 U.S. 765, 776-77 (1995) (Stevens, J.,
dissenting).
\258\ Dep't of Commerce v. N.Y., No. 18-966, at 27 (U.S. Jun. 27,
2019).
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Because courts assess motive all the time, they have
identified warning signs that an explanation may be
untrustworthy. Those red flags include the following:
First, lack of fit between conduct and explanation. This
exists when someone claims they were trying to achieve a
specific goal but then engaged in conduct poorly tailored to
achieving it.\259\ For instance, imagine the President claims
that he wants to solve a particular problem--but then he
ignores many clear examples of that problem, weakens rules
meant to stop it from occurring, acts in ways unlikely to
address it, and seeks to punish only two alleged violators
(both of whom happen to be his competitors). The lack of fit
between his punitive conduct and his explanation for it
strongly suggests that the explanation is false, and that he
invented it as a pretext for corruptly targeting his
competitors.
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\259\ See Romer v. Evans, 517 U.S. 620, 632 (1996); Albemarle Paper
Co. v. Moody, 422 U.S. 405, 425 (1975); Miller-El v. Dretke, 545 U.S.
231, 260 (2005).
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Second, arbitrary discrimination. When someone claims they
were acting for a particular reason, look to see if they
treated similarly-situated individuals the same.\260\ For
example, if a President says that people doing business abroad
should not engage in specific practices, does he punish
everyone who breaks that rule, or does he pick and choose? If
he picks and chooses, is there a good reason why he targets
some people and not others, or does he appear to be targeting
people for reasons unrelated to his stated motive? Where
similarly-situated people are treated differently, the
President should be able to explain why; if no such explanation
exists, it follows that hidden motives are in play.
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\260\ Flowers v. Mississippi, 139 S. Ct. 2228, 2249 (2019); Miller-
El v. Cockrell, 537 U.S. 322, 345 (2003).
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Third, shifting explanations. When someone repeatedly
changes their story, it makes sense to infer that they began
with a lie and may still be lying.\261\ That is true in daily
life and it is true in impeachments. The House may therefore
doubt the President's account of his motives when he first
denies that something occurred; then admits that it occurred
but denies key facts; then admits those facts and tries to
explain them away; and then changes his explanation as more
evidence comes to light. Simply stated, the House is ``not
required to exhibit a naivete from which ordinary citizens are
free.'' \262\
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\261\ See Foster v. Chatman, 136 S. Ct. 1737, 1754 (2016); Evans v.
Sebelius, 716 F.3d 617, 620-21 (D.C. Cir. 2013); Geleta v. Gray, 645
F.3d 408, 413-14 (D.C. Cir. 2011); EEOC v. Sears Roebuck & Co., 243
F.3d 846, 853 (4th Cir.2001); Dominguez-Cruz v. Suttle Caribe, Inc.,
202 F.3d 424, 432 (1st Cir. 2000); Thurman v. Yellow Freight Sys.,
Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).
\262\ United States v. Stanchich, 550 F.2d 1294, 1300 (2nd Cir.
1977) (Friendly, J.) (making a similar point about federal judges).
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Fourth, irregular decisionmaking. When someone breaks from
the normal method of making decisions, and instead acts
covertly or strangely, there is cause for suspicion. As the
Supreme Court has reasoned, ``[t]he specific sequence of events
leading up the challenged decision'' may ``shed some light on
the decisionmaker's purposes''--and ``[d]epartures from the
normal procedural sequence'' might ``afford evidence that
improper purposes are playing a role.'' \263\ There are many
personnel and procedures in place to ensure sound
decisionmaking in the Executive Branch. When they are ignored,
or replaced by secretive irregular channels, the House must
closely scrutinize Presidential conduct.
---------------------------------------------------------------------------
\263\ See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252, 267 (1977).
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Finally, explanations based on falsehoods. Where someone
explains why they acted a certain way, but the explanation
depends on demonstrably false facts, then their explanation is
suspect.\264\ For example, if a President publicly states that
he withheld funds from a foreign nation due to its failure to
meet certain conditions, but the federal agencies responsible
for monitoring those conditions certify that they were
satisfied, the House may conclude that the President's
explanation is only a distraction from the truth.
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\264\ See, e.g., Reeves v. Sanderson Plumbing Products, 530 U.S.
133, 147 (2000); Geleta v. Gray, 645 F.3d 408, 414 (D.C. Cir. 2011);
Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir. 2007); Murray v.
Gilmore, 406 F.3d 708, 716 (D.C. Cir. 2005); Salazar v. Wash. Metro.
Transit Auth., 401 F.3d 504, 511-12 (D.C. Cir. 2005); Anderson v.
Zubieta, 180 F.3d 329, 348 (D.C. Cir. 1999).
---------------------------------------------------------------------------
When one or more of these red flags is present, there is
reason to doubt that the President's account of his motives is
accurate. When they are all present simultaneously, that
conclusion is virtually unavoidable. Thus, in examining the
President's motives as part of an impeachment inquiry, the
House must test his story against the evidence to see if it
holds water. If it does not, the House may find that he acted
with corrupt motives--and that he has made false statements as
part of an effort to stymie the impeachment inquiry.
E. Attempted Presidential Misconduct Is Impeachable
As a matter of settled constitutional law, and contrary to
recent suggestions otherwise, attempted Presidential wrongdoing
can be impeachable. This is clear from the records of the
Constitutional Convention. In the momentous exchange that led
to adoption of the ``high Crimes and Misdemeanors'' standard,
Mason championed impeaching Presidents for any ``great and
dangerous offenses.'' It was therefore necessary, he argued, to
avoid a narrow standard that would prevent impeachment for
``attempts to subvert the Constitution'' (emphasis added).
Then, only minutes later, it was Mason himself who suggested
``high Crimes and Misdemeanors'' as the test for Presidential
impeachment. The very author of the relevant constitutional
text thus made clear it must cover ``attempts.''
The House Judiciary Committee reached this conclusion in
President Nixon's case. Its analysis is compelling and
consistent with Mason's reasoning:
In some of the instances in which Richard M. Nixon
abused the powers of his office, his unlawful or
improper objective was not achieved. But this does not
make the abuse of power any less serious, nor diminish
the applicability of the impeachment remedy. The
principle was stated by Supreme Court Justice William
Johnson in 1808: ``If an officer attempt[s] an act
inconsistent with the duties of his station, it is
presumed that the failure of the attempt would not
exempt him from liability to impeachment. Should a
President head a conspiracy for the usurpation of
absolute power, it is hoped that no one will contend
that defeating his machinations would restore him to
innocence.'' Gilchrist v. Collector of Charleston, 10
F. Cas. 355, 365 (No. 5, 420) (C.C.D.S.C. 1808).
Adhering to this legal analysis, the Committee approved
articles of impeachment against President Nixon that
encompassed acts of attempted wrongdoing that went nowhere or
were thwarted. That includes President Nixon's attempt to block
an investigation by the Patman Committee into the Watergate
break-ins,\265\ his attempt to block testimony by former
aides,\266\ his attempt to ``narrow and divert'' the Senate
Select Committee's investigation,\267\ and his attempt to have
the IRS open tax audits of 575 members of George McGovern's
staff and contributors to his campaign, at a time when McGovern
was President Nixon's political opponent in the upcoming 1972
presidential election.\268\ Moreover, the article of
impeachment against President Nixon for abuse of power charged
that he ``attempted to prejudice the constitutional right of an
accused to a fair trial.'' \269\
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\265\ Committee Report on Nixon Articles of Impeachment (1974), at
64.
\266\ Id., at 120.
\267\ Id.
\268\ Id., at 143.
\269\ Id., at 3.
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History thus confirms that defiance by his own aides do not
afford the President a defense to impeachment. The Nation is
not required to cross its fingers and hope White House staff
will persist in ignoring or sidelining a President who orders
them to execute ``high Crimes and Misdemeanors.'' Nor can a
President escape impeachment just because his corrupt plan to
abuse power or manipulate elections was discovered and
abandoned. It is inconceivable that our Framers authorized the
removal of Presidents who engage in treason or bribery, but
disallowed the removal of Presidents who attempt such offenses
and are caught before they succeed. Moreover, a President who
takes concrete steps toward engaging in impeachable conduct is
not entitled to any benefit of the doubt. As one scholar
remarks in the context of attempts to manipulate elections,
``when a substantial attempt is made by a candidate to procure
the presidency by corrupt means, we may presume that he at
least thought this would make a difference in the outcome, and
thus we should resolve any doubts as to the effects of his
efforts against him.'' \270\
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\270\ Black & Bobbitt, Impeachment, at 93.
---------------------------------------------------------------------------
Common sense confirms what the law provides: a President
may be impeached where he attempts a grave abuse of power, is
caught along the way, abandons his plan, and subsequently seeks
to conceal his wrongdoing. A President who attempts impeachable
offenses will surely attempt them again. The impeachment power
exists so that the Nation can remove such Presidents from power
before their attempts finally succeed.
F. Impeachment is Part of Democratic Governance
As House Judiciary Committee Chairman Peter Rodino
emphasized in 1974, ``it is under our Constitution, the supreme
law of our land, that we proceed through the sole power of
impeachment.'' \271\ Impeachment is part of democratic
constitutional governance, not an exception to it. It results
in the President's removal from office only when a majority of
the House, and then a super-majority of the Senate, conclude
that he has engaged in sufficiently grave misconduct that his
term in office must be brought to an early end. This process
does not ``nullify'' the last election. No President is
entitled to persist in office after committing ``high Crimes
and Misdemeanors,'' and no voter is entitled to expect that
their preferred candidate will do so. Under the Constitution,
when a President engages in great and dangerous offenses
against the Nation--thus betraying their Oath of Office--
impeachment and removal by Congress may be necessary to protect
our democracy.
---------------------------------------------------------------------------
\271\ Debate on Nixon Articles of Impeachment (1974), at 2.
---------------------------------------------------------------------------
The Framers considered relying solely on elections, rather
than impeachment, to remove wayward Presidents. But they
overwhelmingly rejected that position. As Madison warned,
waiting so long ``might be fatal to the Republic.'' \272\
Particularly where the President's misconduct is aimed at
corrupting our democracy, relying on elections to solve the
problem is insufficient: it makes no sense to wait for the
ballot box when a President stands accused of interfering with
elections and is poised to do so again. Numerous Framers spoke
directly to this point at the Constitutional Convention.
Impeachment is the remedy for a President who will do anything,
legal or not, to remain in office. Allowing the President a
free pass is thus the wrong move when he is caught trying to
corrupt elections in the final year of his first four-year
term--just as he prepares to face the voters.
---------------------------------------------------------------------------
\272\ Elliot, Debates on the Adoption of the Federal Constitution,
at 341.
---------------------------------------------------------------------------
Holding the President accountable for ``high Crimes and
Misdemeanors'' not only upholds democracy, but also vindicates
the separation of powers. Representative Robert Kastenmeier
explained this well in 1974: ``The power of impeachment is not
intended to obstruct or weaken the office of the Presidency. It
is intended as a final remedy against executive excess . . .
[a]nd it is the obligation of the Congress to defend a
democratic society against a Chief Executive who might be
corrupt.'' \273\ The impeachment power thus restores balance
and order when Presidential misconduct threatens constitutional
governance.
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\273\ Debate on Nixon Articles of Impeachment (1974), at 16.
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VII. Conclusion
As Madison recognized, ``In framing a government which is
to be administered by men over men, the great difficulty lies
in this: You must first enable the government to control the
governed; and in the next place oblige it control itself.''
\274\ Impeachment is the House's last and most extraordinary
resort when faced with a President who threatens our
constitutional system. It is a terrible power, but only
``because it was forged to counter a terrible power: the despot
who deems himself to be above the law.'' \275\ The
consideration of articles of impeachment is always a sad and
solemn undertaking. In the end, it is the House--speaking for
the Nation as a whole--that must decide whether the President's
conduct rises to the level of ``high Crimes and Misdemeanors''
warranting impeachment.
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\274\ James Madison, Federalist No. 51, at 356.
\275\ Jill Lepore, The Invention--And Reinvention--Of Impeachment,
The New Yorker, Oct. 21 2019.
Minority Views
Voluminous academic writings and government publications
have addressed standards of impeachment under the Constitution.
The hearing of December 4, 2019, held by this committee,
featured four academic witnesses, only one of whom (Professor
Jonathan Turley) contributed something of significant substance
to the record. Professor Turley's submitted written testimony
is attached at the end of these views.\276\
---------------------------------------------------------------------------
\276\ See also Written Statement of Jonathan Turley, H. Comm. on
Judiciary hearing, ``The Impeachment Inquiry into President Donald J.
Trump: Constitutional Grounds for Presidential Impeachment,'' December
4, 2019, available at https://docs.house.gov/meetings/JU/JU00/20191204/
110281/HHRG-116-JU00-Wstate-TurleyP-20191204.pdf.
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Regarding the current impeachment proceedings directed at
President Donald J. Trump, because the Committee invited no
fact witnesses to testify, its Majority Views add nothing to
the factual record--a record which the Republican Staff Report
\277\ amply shows is based on nothing other than hearsay,
opinion, and speculation. As a result, the Majority Views
necessarily fail to make any plausible case for impeachment.
---------------------------------------------------------------------------
\277\ See Report of Evidence in the Democrats' Impeachment Inquiry
in the House of Representatives, December 2, 2019, available at https:/
/republicans-oversight.house.gov/wp-content/uploads/2019/12/2019-12-02-
Report-of-Evidence-in-the-Democrats-Impeachment-Inquiry-in-the-House-
of-Representatives.pdf.
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