The Volokh Conspiracy
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I haven't been blogging much lately, but I thought I would chime in to say why I strongly disagree with my co-blogger Josh Blackman's view that it is problematic to impeach a President for abuse of power based on a corrupt scheme. Josh suggests that such an impeachment is legally improper because it "fails to accord with any notions of fairness for the accused." I find Josh's view highly unpersuasive, and I thought I would explain why.
As Josh tells it, impeaching a President for an abuse of power based on a corrupt scheme is unfair because a President has no possible way to know what a corrupt scheme is ahead of time. As Josh presents it, a President could just be sitting there, minding his own business, when boom! he is suddenly impeached. Josh writes:
[I]mpeachment for an "abuse of power" based solely on "corrupt" intent gives Presidents no notice, whatsoever, of what is expected of them. There is a nearly infinite range of conduct that can fall within this category. The House report explains, "[t]here are at least as many ways to abuse power as there are powers vested in the President." Virtually anything the President does can give rise to impeachment if a majority of Congress thinks he had an improper intent.
Here's why I disagree.
First, I think Josh misrepresents the passage of the report to which he objects. Josh writes that the report "conceives" of this understanding of impeachment. Without any context, that makes it sounds like some sort of new theory cooked up just for Trump. But the House report's passage was actually presenting and summarizing the teachings of the constitutional text, Framing-era history, and the precedents provided by prior impeachments. It is arguing that this is the Constitution's preexisting impeachment standard, not that it should suddenly become the standard for Trump.
Here's part of the report's explanation, with footnotes omitted and a paragraph break added:
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." 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."
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." 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.
The report then discusses the Articles of Impeachment approved by the House Judiciary Committee before Nixon resigned:
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."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.
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."His abuses of executive power were thus "seriously incompatible with our system of constitutional government" and warranted removal from office.
This is not the entirety of the report's passage, but you get the idea. This isn't a new standard, the report is arguing, but the traditional one. From what I have read in books and chapters on impeachment from Frank Bowman and Philip Kurland, that sounds correct to me. And I think that makes Josh's arguments about fair notice difficult to make.
Part of my disagreement with Josh may be based on how we read the report's standard. Josh presents the House report as arguing in favor of an intent only standard, in which impeachment is proper only based on a President's thoughts—"solely on 'corrupt' intent," as Josh puts it. But here's what the report says:
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).
As I read this language, and the explanation that follows, the report is not just saying that corrupt motive alone makes an act impeachable. Rather, it is saying that an impeachable abuse of power can be based on a corrupt scheme that misuses powers that the President had been given to faithfully exercise. That is, the fact that a corrupt scheme includes in part some power that President has been given to exercise faithfully doesn't insulate the corrupt scheme from impeachment. Again, that sounds right to me.
A second way to construe Josh's argument is more particular. Perhaps Josh is saying that a President would have no notice that something like what Trump actually did could lead to impeachment. I'm not sure if Josh is making that argument, but it's worth pointing out why it is plainly wrong if he is. The facts about what Trump did and why he did it are remarkably clear, with most of the evidence coming directly from Trump himself, Trump's White House, Trump's appointees, and Trump's lawyer. And what Trump did strikes me as pretty much the scenario you would have described if someone had asked you, before the Trump presidency, what kind of Presidential acts are impeachable.
Think about it. In an effort to falsely portray his likely 2020 opponent as being under criminal investigation, Trump sent his personal lawyer—not a government employee, but a person loyal solely to Trump in his personal capacity — to co-opt official government power to get a foreign country to issue a press release stating that Trump's opponent was under investigation. Trump realized that if he could place his government power in private hands, to advance his private interests, that power could be used to get a press release that would let him portray Biden as under a cloud of criminal suspicion and help Trump in the 2020 election. So to get around the official channels that focused on the interest of the American people, Trump secretly placed that government power in a private hired gun with a duty of loyalty only to Trump personally to get the deed done.
This strikes me as pretty much the core of what the Constitution's impeachment power is designed to address. And I should add, to the extent it is relevant, that I was against impeaching Trump before the Ukraine story broke. It was the astonishing facts of what happened with Ukraine that changed my mind, moving me from being against impeachment to being in favor of it.
One last thought. Even putting aside these points, I'm not persuaded by Josh's major premise. Josh seems to be approaching impeachment from the standpoint of criminal law. The standard the House report describes is improper, he says, because it is inconsistent with "notions of fairness for the accused." It sounds to me like a void-for-vagueness argument, where we say in criminal law that an accused's right to freedom is wrongly violated if the criminal law does not state with some clarity what a person must do to avoid jail.
But I'm skeptical that the same standard of notice applies for impeachment. In the criminal law setting, we start from the premise that a person's natural state is freedom. We demand high standards before that right to freedom is taken away by the State. But no one has a natural right to be President. The job of President is subject to all sorts of limits and caveats, and the check on the President imposed by the impeachment power is one of those longstanding limits.
Of course, we still must interpret the impeachment power correctly. But I don't think our efforts to interpret the Constitution correctly should be unnaturally limited by importing criminal-law-based concepts of notice.