A Few More Thoughts On Impeachment

|The Volokh Conspiracy |

I am grateful for Orin Kerr's response to my post on impeachment. Years ago, it was fairly common for law professors to respond to each other on legal blogs. In recent years, this sort of discourse has tended to wither away. I largely blame Twitter, which promotes instant, rapid-fire responses. These sorts of exchanges are seldom constructive, and quickly devolve into time-wasting flame wars. People reinforce those they agree with, and drag those they disagree with. We can do better. Orin does better. He disagrees with me, quite vigorously, but does so with reasoned discourse. Thanks Orin. Indeed, I sent Orin two drafts of this post in advance to hear his thoughts, and happily incorporated his feedback.

I think our positions are closer than they may appear. First, let me clear up a few points. I do not think an act must be criminal for it to be impeachable. I do not think the enumerated constitutional standards of criminal procedure extend to the impeachment process. There are some norms of due process that ought to be complied with but the strictures of the 5th and 6th Amendments are not controlling.  I do not think that an article of impeachment based on "abuse of power" is void because that term is vague. Nor do I think that the term "abuse of power" is novel, or without precedent. Historically, there have been many articles of impeachment that use that phrase. In short, an article of impeachment premised on an "abuse of power" could be proper, as an original matter, even if the President was not on notice in advance of the precise contours of the offense. I also concur with co-blogger Jon Adler: the term "High Crimes and Misdemeanors" is not an inkblot. And, as far as my research suggests, the first article of impeachment is consistent with that original meaning. 

I hesitate only slightly here because under the Framers' design, the propriety of an article also turns, at least in part, on policy considerations. The decision to impeach does not depend solely on whether the President's conduct rose to the level of a high crime or misdemeanor. The decision to impeach, like all decisions to prosecute, is premised on other factors beyond whether the specific elements of the offense were satisfied. In other words, not all impeachable offenses must lead to articles of impeachment (Several of the law professors who testified suggested that the word "shall" in the Impeachment Clause imposes a duty to impeach whenever the President commits such a high crime or misdemeanor. I do not think the word "shall" had such a mandatory meaning at the time of the framing.) Members of the Judiciary committee sued the President more than two years ago for violating the Foreign Emoluments Clause, but opted not to bring such an article of impeachment. Certain pragmatic considerations enter into any decision about whether to impeach.

Another important consideration concerns what precedent will be established. And precedent, not original meaning, was the focus on my earlier writing. I worry about the precedent that will be set by an article based on an "abuse of power." There are several policy reasons to pause before proceeding down this route. First, an offense defined only after the act fails to provide the accused with any notice of possible wrongdoing. Second, the accused can then charge, perhaps rightfully, that this offense was synthesized with the purpose of simply getting him. Third, members of the public can believe, perhaps rightfully, that the impeachment proceeding is merely a political attack, rather than any process grounded in established law. This argument isn't precisely premised on the prohibition of ex post facto laws or bills of attainder, but it has similar backing: the House determined that the President's conduct was an "abuse of power" after he engaged in it. None of these concerns exist when impeachment is tied to a pre-existing, well understood offense. If the House managers wanted to follow that path, they could have included a free-standing bribery charge or a free-standing charge that he intentionally and unlawfully sought to withhold appropriated funds from Ukraine, or both.

These dynamics accordingly create additional burdens that the House must satisfy to substantiate an article based on an "abuse of power" standard, where there are no underlying criminal allegations. And this additional burden occasions certain risks to the process itself. Stephen Griffin articulated this premise on Balkinization:

The articles of impeachment submitted today are arguably the first in American history not to be grounded ultimately in allegations that the president committed a federal crime or other violation of law.  This single fact creates unique opportunities and challenges for both parties going forward.  For Democrats, it means they do not have to worry about whether the established facts satisfy the technicalities of a crime such as bribery or obstruction of justice.  For Republicans, it creates the opportunity to respond by demanding clear criteria for the somewhat abstract offense of "abuse of power." For example, haven't all presidents abused their power to some extent?  Democrats have the corresponding challenge of defending their criteria as specific and arguing that Trump is different from past presidents. They go some distance toward doing this in the first article by referring to "the integrity of the United States democratic process."

The precise novelty of this claim might be nuanced, but the Johnson, Nixon, and Clinton articles all alleged specific violations of law. It is far easier to persuade the public that an article of impeachment is proper, if the claim is based on a well-worn criminal violation that is routinely prosecuted or which has supplied the basis for prior successful impeachments. That is, a crime that has elements and requirements that have been liquidated by judicial, as well as congressional precedent. The public is familiar with the elements of bribery and obstruction of justice. For example, the Mueller report spent considerable time developing each of the three elements of obstruction, when deciding whether the President ran afoul of the law. (Ultimately, Special Counsel Mueller did not make any recommendation.) This approach relies on established law and puts would-be wrongdoers on notice. Such precision is a long-standing feature, not a bug, of how the impeachment process has been carried out to date. In contrast, the House has launched an impeachment based on a newly crafted-political "crime." 

But here, we are left with an allegation of "abuse of power." Persuading the public that these allegations rise to the standard of a high crime or misdemeanor, in theory at least, is more difficult than persuading the public that one of the two enumerated offenses (i.e., bribery and treason) is a high crime or a misdemeanor. I say in theory, because at this juncture, I doubt there are many minds that are not yet made up. But Griffin's point stands: there are additional challenges, and risks by going down the road suggested by the House majority. And this sort of article departs from modern, if not all prior impeachment practice. The burden to justify this expansion rests with those advancing the articles, not those defending against them.

A recent article in the New York Times highlights how opponents of impeachment can view the "abuse of power" allegation as merely political:

Yet Republicans view the current episode through the opposite lens, saying that the Republican-led impeachment of Mr. Clinton was fully justified while the action against Mr. Trump is purely political and unsupported by the evidence.
"President Clinton committed a crime, perjury," Representative Steve Chabot, an Ohio Republican who voted to impeach Mr. Clinton in 1998, said Thursday as the House Judiciary Committee drafted articles of impeachment against the president. "This president isn't even accused of committing a crime." . . . .

On Thursday, Representative Kelly Armstrong, Republican of North Dakota, recited a litany of past presidents of both parties who had drawn charges of abusing their power but were not impeached, and cautioned his colleagues that impeachment was becoming "the new normal."

"In the history of our country, the party who is not in the White House has accused the White House of abuse of power," Mr. Armstrong said. "It started 200 years ago, it will continue into the future, except now, congratulations, it will be impeachment every single time one party controls the House of Representatives and the other party is in the White House."

I developed this theme in an Atlantic essay:

The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly articulated offenses, the burden of charging a president with "abuse of power" is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with "obstruction of Congress." This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton. Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president's duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

I think the standards set by the House's proposed articles will make impeachment far easier, even in cases where the allegations are far less severe. 

Finally, a brief comment on the President's alleged motives. The House report concluded that "Impeachable abuse of power can take two basic forms." The articles have not alleged the first path: that the President's exercise of authority "exceeds the President's constitutional authority or violates legal limits on that authority." The articles could have predicated conviction on Trump having violated either the statute authorizing military aid to the Ukraine or the Impoundment Control Act of 1974, but didn't. The articles could have predicated conviction on Trump committing all of the traditional elements of bribery–an offense spelled out in the Constitution–but didn't. The House impeachers have publicly framed the article as "abuse of power." 

I flag an issue that does give me some pause. Despite not leading with an article based on bribery, the article references bribery and unlawfully conditioning an appropriation. It is not clear to me, at least, whether the House intended to include a separate claim of bribery, or whether the allegation of bribery is offered as evidence that there is an abuse of power. It is also not clear to me whether the conditioning of an appropriation is unlawful, or if that act is offered as evidence of abuse of power. What exactly are the charges against the President? If the bribery charge or unlawful conditioning claims cannot be substantiated, independently, on what basis can the abuse of power claim be substantiated? In other words, if we are really talking about bribery or a statutory violation, why did the House use the framing of "abuse of power." I think the House is trying to have their cake, and eat it too. That is, they're trying to avoid charging the President with a specific crime that may be difficult to convict, but still accusing the President of committing those crimes. An acquittal in the Senate would not necessarily acquit the President of the alleged conduct, because it was never precisely charged.

In this first category–where the President's exercise of authority "exceeds the President's constitutional authority or violates legal limits on that authority"–the President's motives are irrelevant. Additionally, these offenses are well-defined. The President, and everyone else, is on fair notice that such acts could give rise to impeachment. There can be no reasonable claim that the offense was only defined after the fact. For example, the general thrust of my criticism would not be relevant if the House included an article premised on bribery. I doubt the technical elements of the offense could be satisfied. But there is absence of notice; allegations about unfairness fade. 

The House, however, chose the second path: the articles alleged that the President "engag[ed] in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit)." It is commonplace for Presidents to ask foreign governments to conduct investigations. What renders this request different, the articles contend, is that the object of that investigation was to injure the President's political rival. And impeachment will turn on an assessment of the President's motive. A corrupt motive would, according to the proponents of impeachment, transform a "permissible act" into an "abuse of power." Effectively, they contend that otherwise legitimate presidential actions taken with a corrupt motive are, by definition, not faithful executions of the law. (I discussed that theory here.) The article now turns on what was in Trump's head. If he had proper motivations, then there was no impeachable offense. Such an article sets an important, and risky new precedent: going forward, I fear that many presidential actions with potential consequences to the party not in the White House will be seen as corruptly motivated, and thus subject to impeachment. 

There are some other areas of difference between Orin and me, but I will leave it here for now. 

Advertisement

NEXT: Was This the Decade We Hit Peak Free Speech?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “… shall have the sole Power of Impeachment” is imperative and quite different from the implied “shall impeach”. “Shall” has absolutely the same meaning as today, although in this context, it could be replaced by “… has the sole power of impeachment.” But as used, it absolutely does not mean MUST impeach for every high crime or misdemeanor.

    1. I do wonder if those who twist the “shall have the sole Power of Impeachment” also believe that any time that the US is not in a declared war somewhere that Congress has failed because, after all, Congress “shall have Power […] To declare War” and there are always multiple countries threatening us with use of force in some way that could justify war.

    2. Idiocy. The problem with this impeachment is that’s its functionally (if not theoretically) indistinguishable from a vote of no confidence. Literally, Barack Obama withheld lethal aid, but he had a good motive. Trump withheld aid, but he had a bad motive – how could anyone distinguish between those acts based upon anything other than one’s subjective sense of the goodness or badness of these alleged motives? Is defeating Biden a good or bad motive? Doesn’t that depend upon your assessment of Biden? Get it? There’s no OBJECTIVE definition of good or bad motives, so allowing impeachment for bad motives is, by definition, making the president subservient to Congress. This impeachment (if successful) makes us a parliamentary democracy; therefore, it’s an abuse of power. Expect voters to punish Ds accordingly & expect impeachment to become a dead letter for 100 years or so.

  2. A large portion of the public neither a part of the legal profession nor the political/media ones will expect the impeachment to proceed as any other trial seen on TV dramas. It looks like a trial, so it should act like one.
    If that is the case, then the President should get something like the procedural protections granted to a shoplifter.
    There should be a defined violation, proof of that violation, then a vote by the jury. That seems to be a high bar for the House prosecutors to pass over. Hearsay evidence should be as inadmissible as in a real court, so most of the testimony in the House will not be heard again. Not that much of a real trial.

    1. Not a lawyer, but ask around. On first layman’s read, it seems like almost all the alleged hearsay testimony heard in the House would be admissible in a federal criminal trial, under the extensive enumerated exceptions to the hearsay rule. Read up.

      As for looking like a trial, I’m all for it, but I doubt that’s what McConnell has in mind. It will look like a trial to me when both sides are represented by lawyers, when both can subpoena witnesses and documents, when witnesses are under oath and can be cross examined and held criminally responsible for perjury.

      You ready for that, Dinkle?

      1. Which exception would it fall under?

        It’s only mildly probative, has a high potential to poison the “jury,”mans would be used to prove the truth of the matter.

        I’m not really seeing how person A saying that person B said that person C thought person D wanted something naughty is meaningful – you need to prove that person D wanted something naughty in this case, not must that numerous people said things to each other.

  3. Once again, its a political process with no standards other than what 218 reps and 67 senators think.

    1. Once again, just because you don’t care about norms doesn’t mean no one does.

      1. Once again, just because someone makes a comment you don’t like doesn’t mean that commenter is claiming to know the truth, and it doesn’t make your comment dispositive either.

      2. “just because you don’t care about norms doesn’t mean no one does.”

        Correct. Some people are dumb.

        At least I am consistent.

        Your side, all thru the hearings, it was “political process, we don’t have to permit meaningful cross exam or follow evidentiary rules”, now its a real trial.

        1. I’m trying to decide if I prefer consistent partisan hacks, or people who consistently hold terrible ideas.

          1. With Bob, you don’t have to decide.

            1. I seem to remember an instance or two when I agreed with him, but I’m not sure if that’s because even a stopped clock is right twice a day, or because a clock that’s one second off Is right every 86 thousand seconds.

      3. Sarcastro, there are no “norms” on impeachments. There have only been two in history, only one in recent history.

        I think Bob is basically correct. The most important thing the Impeachment Clause does is grant the power to the House and then the Senate. Because that means it was supposed to be political. Politicians are in charge of it precisely so they can reach conclusions such as “yes, Clinton committed a serious violation of the law, but the public wants him to stay in office”, or “no, President Y didn’t commit any crimes, but a bipartisan majority of public thinks he is completely incompetent and embarrassing, and wants him out immediately” which wouldn’t be possible from a court or a jury.

        So it isn’t a matter of norms. The Senate can set its impeachment trial procedure, and it can be whatever the Senate wants it to be. And they can decide to acquit the President, or convict him, for any reason they wish to.

        1. Only two presidential impeachments. We could look to impeachments of lesser officials and/or judges for some norms, though even those are probably too few and too inconsistent in process followed to establish much in the way of cognizable norms.

        2. Norms need not arise out of precedent.

          1. Not that it’s worth much, but I do agree.

    2. Not necessarily, if the President did commit one or more criminal acts then we could get past the purely political, as happened with Nixon.

      The House looked like it was going to go with charging criminal violations but it’s not too hard to see why they didn’t: because it would look unfair to the public to charge criminality on acts that wouldn’t meet the definition of the charge, or meet the standard of proof, or use evidence admissable in a criminal proceeding. An investigation doesn’t meet the legal definition of a thing of value. The testimony certainly did not establish beyond a reasonable doubt the aid was conditioned on getting an investigation, and hearsay like we heard in the hearings would never be allowed in court. If you say it’s criminal, then there is an expectation that most of not all criminal case standards are met.

      None of those things are going to faze the resistance, but it’s independent voters that decide elections. And knowing how the initial charge went from quid pro quo to bribery, I’m going to bet some of those concerns came out in focus groups and polling: ‘sure bribery is bad, but that doesn’t sound like bribery to me.’

      1. Right – it falls on the “this is icky” line of political acts. The line that non-D/R partisans know is crossed all the time, but don’t want to look at how the sausage is made (and which D and R partisans are sure their opponents cross constantly, while theirs would only do so for the greater good).

        Is it bad? Yes.
        Was the call perfect? Ha! No.
        Do I have any doubts that this sort of thing (even if not this specific example of it) happens all the time? Nope.
        Do I think Obama, Bush, and Clinton did it too? Absolutely, and I can think of examples (Bush the Elder was when I was a kid, but I’d be shocked if he didn’t cross the icky line too)

        Should we hold politicians feet to the fire on this? Maybe. We should either always do so, or rarely do so and only for clear violations of the insiders game (which for all I know Trump broke, being the guy throwing chum into the swamp rather than a resident of it himself).

        1. I agree that smearing Biden is hardball politics. But, is it still hardball politics to smear Biden by 1) using a private party that co-opts government power, perhaps (or perhaps not) endangering national security or 2) pressuring a foreign government, perhaps (or perhaps not) with elements of bribery or extortion?

          1. 1) Not sure what you mean by this.

            2) Wake me when this happens.

            3) See #2.

            1. 1) Trump tasked Rudy Giuliani rather than the State or Justice Department.

              2) Not surprisingly, we disagree on the facts. But assuming the facts are as I state them, do you agree they justify impeachment and removal rather than being considered hardball politics?

              1. Then you described (1) exactly backwards.

                A private party didn’t co-opt government power, the government hired a private agent….. which they do constantly. That’s how the military industrial complex works, after all.

                (2) happens all the time, that’s the purpose of foreign aid after all. Even our remaining in NATO is essentially this, as there’s little interest for the US directly in remaining but huge value for other members if we do.

                As for 1.5, National security is always a trade off. Suppose that Obama believed that the long term minimization of Ukrainian corruption is worth letting Russia take Crimea, and now Trump wants to quash the corruption introduced by his predecessors allowing administration family members to broker meetings for the very same reason. Which trade off was appropriate, and which wasn’t?

                You’re largely describing business as usual in DC, but with an unpleasant spin on it. A spin I find generally appropriate, but not one uniformly applied.

                1. Was paid as a government contractor or out of Trump’s personal funds as his personal lawyer?

                  Pressuring a foreign government is routine. Smearing a political rival is routine. Pressuring a foreign government to smear a political rival is not routine.

  4. If pure motivation is a prerequisite for otherwise acceptable exercise of official power, I think the dems are in trouble. I’ve never seen such corrupt motives at play in American politics in my life as the dems impeachment in search of an offence since before trump took office. By the corrupt motives theory, their own proceedings are improper, even though they technically would have had the authority to impeach over nothing if only their motivation was not corrupt.

    1. Isn’t the act in bribery totally fine except for the specific intent involved?

      Obstruction of justice has a corrupt intent element.

      1. The core of the obstruction of Congress – not of justice – complaint is that the President referred demands from Congress to the courts. It is not unusual for members of the general public to point out the differences between justice and the law, but hearing that argument from Nancy Pelosi is unexpected.

        1. Don’t need to talk about obstruction of Congress since I’m talking about whether corrupt intent can be an element in response to North’s comment.

      2. Even Democrats saw bribery never happened.
        Obstruction (congress, not justice) has been ruled moot by SCOTUS. They agreed President Trumps seeking Judicial Review is worth hearing on appeal. President Trump is on legal footing, Or SCOTUS would have declined.

        1. Nothing’s been ruled moot.
          Also mootness isn’t a thing in impeachment.

    2. I’ve never seen such corrupt motives at play in American politics in my life as the dems impeachment in search of an offence since before trump took office.

      Trumpkins are so pathetic. “Democrats have been trying to impeach Trump since he took office” would not be a defense of Trump or an argument against impeachment even if it were true, and it’s not even true. Some Democrats may have talked about impeaching Trump at some points in time. But “Democrats” collectively have never made any attempt at impeachment until his malfeasance with respect to Ukraine came to light.

      1. I generally read “Democrats say…” or “Republicans did…” as claims that some democrats or some republicans took those actions, rather than a group action.

        So a few months ago we could say “Republicans disparage the impeachment “investigation“ as a witch hunt” and I’d read that as “some Republicans used hyperbolic language in describing the methods and intentions off the investigators,” while you presumably would not (though I think it’s fair to say that even under your baseline interpretation that would be true now).

        This isn’t a refutation of your method, but I’d like to understand how you decide when a claim is hyperbolic in the actor, not merely the method? You may not have really thought about this before, but I find this sort of gap to be one of the larger problems in how the American left and right communicate – each says one thing they think is clear, and the other clearly understands it – just not the way it was intended. It’s not just a left-right gap, but encompassing most disagreement.

        Dennis Prager often says that the purpose of debate isn’t to convince the other guy, but to gain clarity of understanding – something I see missing far too often (at least partially because on the internet no one knows whether you’re a human or a troll).

        1. I generally read “Democrats say…” or “Republicans did…” as claims that some democrats or some republicans took those actions, rather than a group action.

          It can be legitimately used if (a) large numbers of Democrats/Republicans said/did these things; or (b) Democratic/Republican leaders did.

  5. Bob from Ohio, is the most succinct. Also as noted, if corrupt intent is the standard, what Democrats have acted on since before the inauguration, is cause for removal from office. The constitution offers no remedy, save the ballott box. The accusations made hourly of criminal actions, massive corruption, made by Democrats, are immediately swept aside by the same Democrats that declare, criminal actions are not required to impeach??? So I am to understand Trump is a criminal, and ignore that crimes are not part of articles of impeachment.

  6. The second article of Obstruction of Congress has been laid moot by SCOTUS accepting the appeal of Trumps business records being subpoenaed. SCOTUS has weighed in declaring the President is well within his power to seek judicial review.
    There is also a lower court ruling that ruled, while a Trump adviser shall be made available to congress, executive privilege does apply to communications, and some question can be ignored.

    As has happened of late, Democrats rush to make wild accusations, falter when information soon surfaces to prove the Democrat thinking is partisan and not supported by well understood law.

    1. I don’t think that’s moot.

      Each of the branches are co-equal, so if the Congress thinks the Supreme Court is wrong they can always impeach and remove them: and if the President also agrees replace them with jurists who will vote the right way.

      I happen too Ike our current equilibrium, so I hope it stays, but it’s not exactly moot as the other branches have ways of overturning the court.

      1. No, you misunderstand. The House Judiciary Committee brought articles of impeachment, Obstruction of Congress, based on the fact President Trump sought judicial review on whether he had to provide Executive Branch personnel and documents, as a co-equal branch of govt, the House committee lacked jurisdiction.
        In similar cases President Trump has also refused to cooperate with similar requests. Those cases were adjudicated, and judges did require the President to comply. Now on appeal, SCOTUS agreed to hear the appeal. If it was settled law that the President lacks executive privilege in his communications, SCOTUS would never hear an appeal. The President cannot obstruct congress, if he truly believes he has executive privilege, and now SCOTUS back him up.

  7. Don’t bribery, extortion and obstruction of justice require corrupt motives, and thus also require determining what was inside Trump’s head? So, I don’t think determining motive opens up a problematic precedent.

    Having said that, I appreciate the concern that opening up “abuse of power” to any lawful activity with a corrupt intent is far too broad. For example, it would be ridiculous to impeach Trump because he hosted a foreign leader in the Oval Office and the two of them jointly trashed Biden as being mentally unfit for the job.

    On the other hand, it is clear to me that using your personal attorney to pressure a foreign government to announce an investigation that casts a cloud of criminal suspicion over Biden easily meets the “abuse of power” standard.

    But what distinguishes the two cases? Thinking out loud, perhaps it is an element of a crime in the latter case (bribery or extortion), and Blackman is correct that the House is trying to avoid charging the President with a specific crime that may be difficult to convict, but still accusing the President of committing those crimes. And perhaps a workable threshold for “abuse of power” would require some elements of a crime, but not necessarily all of the technical elements.

    1. Having just reread Orin’s post, another standard that distinguishes the two cases was suggested by Orin:

      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 even if no crime was involved, perhaps “abuse of power” is impeachable if the act is carried out by private parties co-opting government power?

      1. You keep implying that a private party (Giuliani) co-opted government power, but you haven’t said what that power is….

        1. Foreign aid.

          1. The President can assign any person he desires as his agent. Up and down the govt, agents declare outside operators to do their bidding.

            1. They do so through government contracts. Giuliani is acting on behalf of private-citizen Trump as his personal lawyer.

              1. I highly doubt that Bill Richardson had a contract from US govt to do hostage negotiations with North Korea.

    2. The problem with your analysis Josh R, is that there is no underlying bribe, extortion or obstruction (unless we’re talking about Joe Biden). Democrats hold power and are bound and determined to banalize the impeachment process for political ends. He must be smeared and impeached otherwise he will win in 2010. No facts would ever persuade these Democrats that the President was not acting with a corrupt motives. In fact, every fact and insinuation is twisted against the President (shades of Crossfire Hurricane). How about some honesty, you know just for the novelty of it.

      1. there is no underlying bribe, extortion or obstruction

        Nice of you to give in on the motives argument Blackman is trying for.

        You don’t think a meeting at the White House is a thing of value to a foreign leader?

        You don’t think withholding funds until compliance is extortion?

        You don’t think claiming blanket immunity for all executive officials is obstruction of Congress?

        1. No, Sarcastr0, I don’t see that at all because if such facts establish bribery, extortion and obstruction then every President, starting with Washington, would have been subject to impeachment. At least name one, apart from Harrison (would died 30 days after being sworn in) who could have escaped impeachment under these new Democrat standards. And that brings us back to that honesty thing again. Why is every fact and circumstance twisted against the President? That can’t quite be right now can it? How can an academia in this country that sees nuance in how Stalin starved and brutalized the Russian people be so close minded when analyzing the motives of the President?

          1. Because one was their guy, and the other isn’t?

            Tribalism is very powerful in humans, and I think the biggest mistake of the founders was in thinking it might pass (though some expected regular civil wars, so there’s that).

        2. A Whitehouse meeting certainly doesn’t meet a statutory standard for a thing of value or an official act. You could probably sell a Whitehouse meeting on eBay for quite a sum making it a thing of value, if it were transferable, but of course it isn’t.

          Chief Justice Roberts, who might have been invited to make a ruling on the question in the Senate wrote in McDonnell: “In sum, an ‘official act’ is a decision or action on a ‘question, matter, cause, suit, proceeding or controversy,.. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of an official act.

      2. I’m commenting on the standard for impeachment without regard to whether the facts support the standard in this particular case.

        1. Ok, if you say so. Funny how these abstract standards end up impugning the President. But let’s play that game. Is there any administration in the history of this country that couldn’t have been accused of an abuse of power under your standard? I have previously excluded Harrison but I bet some intrepid historian could find something he did in those 31 days in office that could qualify.

          1. Well, under the standard that a President can’t refuse all witnesses, and deny all subpoenas, in an impeachment investigation, then every previous administration escapes.

            1. Cute but the point (as you well know) is that this standard admits to no limiting principle. All policies decisions the opposing party disagrees with can be recast as “abuse of process.” And in the brave new banana republic like politics the democrats have initiated, we’ll no doubt see this farce repeated. We had a good run but looks like its down hill from here. Be sure to thank your Democrat representative.

    3. re: “Don’t bribery, extortion and obstruction of justice require corrupt motives…”

      Well, you probably have to be corruptly motivated to do those crimes but that misses the point. I don’t have to prove those motives to convict you of those crimes. The objective acts are (almost always) sufficient to convict you. No need to discern your mental state. So, no, you have not yet rebutted the “problematic precedent”.

      Discerning mental state to any reliable degree is seriously hard even in a criminal setting where you have independent judges, multiple parties free from conflicts of interest and extensive procedural controls. Achieving that same reliability in a hyper-partisan environment with few to no procedural controls? That sounds like a recipe for failure to me.

      1. The statutory definition of bribery is “directly or indirectly, corruptly gives, offers or promises anything of value.” The statutory definition of obstruction of justice similarly states “Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede”

        How do you prove “corruptly” without assessing motive?

        1. It is patently absurd and highly damaging for this president (and future administrations) to insert insinuations of bribery and corrupt motives for what is objectively proper conduct and moreover conduct squarely within the purview of the executive (who has near plenary power to conduct foreign relations). Good luck to future administrations when negotiating with foreign powers, especially if the president happens to be a republican.

      2. In the case of government actors, motive is critical when there are statutory guide lines for taking the action.
        In this case, inquiring from a foreign govt to investigate possible corruption, is codified in a treaty between the two nations to fight corruption. Lacking proof of corrupt motive, makes the action well inside constitutional powers.

        Compare it to the FBI spying on a political campaign. That is obviously a crime, right?

  8. “but the Johnson, Nixon, and Clinton articles all alleged specific violations of law.”

    1. There were no articles of impeachment against Nixon. Articles of Impeachment never passed in the House in the Nixon case because he resigned first.

    2. In the case against Johnson, it was a highly likely unconstitutional law passed after Johnson became president specifically to box him in, and goad him into a violation for which he could be impeached. The Johnson impeachment was in it’s entirety a policy dispute over how to handle the former Confederate States.

    1. In the Nixon case, there were articles of impeachment created by the Judiciary Committee, and forwarded to the full house. It was at that juncture that Nixon resigned. Also worth noting that the Judiciary committee considered quite a number of charges, took votes on them, and in somewhat bi-partisan fashion approved some and rejected some, thus giving credibility to the seriousness of those it did approve.

      1. They aren’t officially articles of impeachment until passed by the full House.

        1. So what do you call articles of impeachment voted out of committee but not approved by the full House?
          They still sound like articles of impeachment to me.

  9. I am much confused. The President has the power to veto legislation. Is vetoing a law the democrats like an “abuse of power” just because the democrats like it? Is being an elected president conducting foreign policy by requesting corruption investigations an “abuse of power” just because the democrats prefer a different foreign policy, allowing corruption?

    1. The President has the power to veto legislation. Is vetoing a law the democrats like an “abuse of power” just because the democrats like it?

      No. But vetoing a law would be an abuse of power if it were done because someone had paid him to do it.

      1. That sounds like Bribery to me.

        How about pardoning someone because he is a member of an insular religious group, and that will get your wife about a thousand votes she needs for a Senatorial election?

        https://www.latimes.com/archives/la-xpm-2001-feb-24-mn-29756-story.html

        Is that an abuse of power?

      2. How about vetoing a redistricting bill?

        Under the old law the Presidents Party has the advantage, and they think that under the new law their opponents would have the advantage. Assume that either law is otherwise generally just and it’s merely a preference which would be better as both are inherently reasonable such that if not for the expected change in seats you could see either one passing unanimously.

        If that’s corrupt, and I think it is under this rubric, then are all of the legislators who vote – for or against – also acting corruptly?

      3. It would be bribery of a president was paid for a veto or pardon: a thing of value exchanged for an official act.

        Official acts can be exchanged, a veto for a vote on legislation, a vote for a vote is quite common, even a pardon (for someone else) for a vote. But not money for any of the above.

        An investigation for a Whitehouse meeting is legal logrolling because while an investigation is an official act, no matter how valuable a Whitehouse meeting is it is not a “thing of value”.

        1. An investigation for a Whitehouse meeting is legal logrolling because while an investigation is an official act, no matter how valuable a Whitehouse meeting is it is not a “thing of value”.

          Which might be relevant if we were trying to prosecute someone for that under a specific statute that required a “thing of value” defined in a specific way. But impeachment doesn’t work that way.

          1. Of course Congress can define the term however they want, but it’s makes it problematic getting the public to buy into the charge when it just doesn’t meet the elements of what the public considers bribery.

            If no one is getting a suitcase of cash then it’s hard to call it bribery, which is why the charge collapsed.

  10. “not all impeachable offenses must lead to articles of impeachment”

    That’s quite an understatement, since every modern President has probably committed hundreds of “impeachable offenses.” When Justin Amash first asserted that President Trump committed “impeachable offenses” I said this seems to be quite a meaningless statement.

  11. “It is far easier to persuade the public that an article of impeachment is proper, if the claim is based on a well-worn criminal violation that is routinely prosecuted or which has supplied the basis for prior successful impeachments. . . . For example, the Mueller report spent considerable time developing each of the three elements of obstruction”

    Exactly what I posted here a long time ago. You may not need a criminal act but it doesn’t bode well if you don’t have one, particularly with today’s astoundingly expansive and vague criminal code, compared to a century or two ago. And when the Ukraine impeachment first started, I said, what about the Mueller obstruction arguments? Those were at least well-defined.

    1. “what about the Mueller obstruction arguments? Those were at least well-defined.”

      You can’t expect the Democrats to not learn from experience: If you define the offense in advance, you risk not being able to prove Trump committed it.

      1. I’m persuaded that Trump obstructed justice during the Russia investigation. However, I do not believe it was a High Crime because what motivated his obstruction was his childish inability to accept that Russia interfered on his behalf even though he had nothing to do with it.

        In contrast with Ukraine, Trump wants to smear an election opponent, which goes at the very hear of what a High Crime is (assuming he has committed a crime or abused his power).

        1. There is no evidence Russia was supporting President Trump. The corrupt Intelligence Community came up with that gem.

  12. This whole thing is so boring already.

    If the Obama administration could investigate Trump on the thinnest of bases, which then was all leaked to the media and created the biggest “cloud of suspicion” or more specifically totally unhinged rampant delusional conspiracy theories . . . then why is it impeachable for Trump to mention in passing the possibility of investigating Biden on a much clearer basis?

  13. “…impeachment will turn on an assessment of the President’s motive. A corrupt motive would, according to the proponents of impeachment, transform a “permissible act” into an “abuse of power.” Effectively, they contend that otherwise legitimate presidential actions taken with a corrupt motive are, by definition, not faithful executions of the law.”

    In other words, the impeachment process itself has now become the inkblot? How ironic.

    1. 1) Trump is a real jerk. This is accepted by even his ardent supporters.
      2) A real jerk would bride/threaten a foreign government to get whatever he wants. Probably true.
      3) Since 1 is true and 2 is true, then Trump must have done it. I have been called a jerk, but even I didn’t this. Real proof is required.

      1. Real proof like his own admissions, the admissions of his agents, and the testimony of numerous people? Great!

      2. At least (2) is unique to Trump though.

        All Presidents threaten other countries, but only Trump has taken it to the next level to bride them.

  14. You’ve expressed what my general sense has been on this.

    However, I am interested in what you would think of the following rebuttal:
    The exercise of congressional muscle over the president has not been seen enough and it is proper for Congress to assert, however subjectively, authority over a president it feels is not faithfully executing the laws. Additionally, your hunch that such impeachments would become commonplace is unfounded. There are many reasons, including political risk, for a party to not pursue impeachment. Indeed, many presidents perhaps should have been impeached but for countervailing reasons which will continue to exist. Even if there is some overreach here, there is good reason to think such impeachments would not become the norm. Should limited government types praise a more muscular congress? If impeachments do become more commonplace is that necessarily bad?

    Appreciate your input!

    1. “ If impeachments do become more commonplace is that necessarily bad?“

      Not necessarily bad, but if that becomes the new norm then other things will too, assuredly including things we can’t predict, and which may be very bad indeed.

      In this new world where every President is impeached if their party doesn’t hold either the House or Senate I expect far more abuse of the executives investigative groups to ensure that they keep their seats – after all, they’ll only get punished if they lose, and they’ll get punished if they lose regardless of what they do, so they may as well do something useful. This one I think is pretty clear.

      We’ll also see criminal investigations every time the presidency changes hands, and the former president prosecuted for their “crimes.” President Bush gets handed over to The Hague for war crimes, President Obama gets tried in Pakistan for the murder-by-drone of a US citizen without process in their borders (and then prosecuted sequentially in The Hague and then Texas if it’s not enough – they’ll come up with some jurisdictional BS about why that venue is appropriate).

      And when one party holds both branches next you can bet on culling the Judiciary into a one party state – after all if you don’t do it the other guy will, and at least you’re on the right side of history.

      Those are just the things I can foresee with reasonable confidence, absent a minor (or major) revolution. And that’s bad.

    2. Congress has plenty of power to reign in Presidential power. But, congress has abdicated that power. Because allowing Presidents (of your own party) to wield that power, is so much more efficient than passing legislation. Congress, across party lines, are neutered pets, are bark, no action.

  15. As I understand it, the first proposed article of impeachment says President Trump endangered national security by delaying the aid to Ukraine.

    If that’s the version the House chooses to go with, they’ll have to prove national-security violations in addition to the other parts of the charge. Senators aren’t entitled to cast a “mostly guilty” verdict (even if they believe it), or to convict on the kind of article they think the House *should* have approved.

    So by all means let them prove that prompt aid payments to non-allied country is necessary to the security of *this* country. Maybe the Senators, with their interventionist history, believe this – but perhaps in their capacity as judges they can re-examine their premises and question the planted forever-war assumptions included in the article.

  16. If not through threat of impeachment, how _do_ we stop incumbents from taking or promising official acts with the main aim of tarnishing challengers?

    1. Imagine if Hillary didn’t understand the difference between a foundation’s bank account and her own. She might be fined millions of dollars and be banned from running a charitable foundation in the future.

  17. “I do not think an act must be criminal for it to be impeachable.”

    So far, I have not heard a good defense of this assertion. If “abuse of power” is the standard, then “Treason, Bribery or other High Crimes and Misdemeanors” seems a very odd way of phrasing that.

    And I am not impressed with the argument that the British practice was different. There were a lot of things done in Britain that the writers of the Constitution rejected. The definition of Treason is a good example — that was widely abused in Britain, which is why the Constitution contains a strict definition of it.

    Originalism to me means that when a Constitutional provision is sold to the People (who are sovereign in a Republic), then how they understand it is what should control. Otherwise, the Founding Fathers in effect were engaged in bait and switch. I have yet to hear a convincing argument that, at the time of the adoption of the Constitution, the People would have understood “or other High Crimes and Misdemeanors” as meaning anything other than defined common law or statutory crimes.

    (As an aside, I have heard no one mention this, but the principal of esjudem generis would seem to support he notion that “other” crimes have to be like Treason and Bribery.)

    1. High crimes seems time to be easy – anything for which the death penalty attaches.

      But what are “or misdemeanors?”

      1. I think that “high” means crimes against the functioning of the state, as opposed to crimes against persons. That is how I believe the phrase was interpreted.

        (Although that would lead to the odd result that a President who murders someone for private reasons — say, he murders his wife and her lover in a jealous rage — would not be subject to impeachment.)

        And, yes, “misdemeanors” is something that needs to be fleshed out. What is a “high misdemeanor?”

        1. “Although that would lead to the odd result that a President who murders someone for private reasons — say, he murders his wife and her lover in a jealous rage — would not be subject to impeachment.”

          Or the Vice President murdering, say a former Secretary of the Treasury, and not getting impeached for it.

          1. Indeed.

            The Burr precedent is discussed here:
            https://www.lawliberty.org/2018/07/11/could-aaron-burr-have-been-impeached-for-the-duel/

            I don’t agree with his conclusion, but you can read it for what its worth. And note that some of the usual suspects took different positions on the matter.

    2. I have yet to hear a convincing argument that, at the time of the adoption of the Constitution, the People would have understood “or other High Crimes and Misdemeanors” as meaning anything other than defined common law or statutory crimes.

      Read Hamilton’s contributions to the Federalist. It’s all there.

      1. I have, and am singularly unconvinced. The passages usually cited for this are:

        THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

        A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

        Federalist 65.

        Nothing here negates the notion that impeachment requires a recognized crime. What it does say is that these are crimes (or “offenses” which means the same thing) against the public trust. IOW, not all crimes qualify, which is certainly true.

        But that does not mean, a vague “abuse of powers” standard was meant. To the contrary, that he calls this a judicial proceeding indicates that something like a criminal trial was contemplated. (In fact, in Federalist 66, he answered some objections that the Senate’s trying of impeachment would usurp judicial power.)

        The fact that the Senate’s power to try is one of the checks on powers of other branches (not only the President; judges and cabinet members can be impeached) is certainly true. But that does not mean it has some standards.

        The power to Pardon is stated in the Constitution; which grants the President the “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” (Note the use of the term Offences again.)

        The Pardon power is no doubt a check on judicial abuse. But it is limited to criminal judgments. A president has no power to set aside a civil judgment for money, for example, no matter how outrageous or ill-conceived.

        So the fact that Hamilton argued for the Impeachment and Removal powers as a check on Executive power proves nothing.

  18. You know, I am sitting here reading the comments, and I wonder what ‘the day after’ is going to look like. It won’t be good. What I would tell the House members is that there is ‘a day after’ in every action. What happens, post-impeachment?

    Whether you can impeach someone is a very different question from whether you should impeach someone.

  19. I think Trump’s offense of attempting to withhold authorized taxpayer money to extend his own, personal, political power is impeachable.

    However, the articles are so weak it’s almost like the House wants them to fail to result in conviction in the Senate. Pelosi et al would almost certainly prefer that the Democratic nominee face Trump rather than Pence and perhaps that’s why the Articles of Impeachment are so weak as to insure acquittal.

    However, Democrats should consider what precedents are being set between national injunctions against any executive action they don’t like and a vague “abuse of power” justification for impeachment. At the table the Democrats are setting, Obama would likely have been impeached over DACA (after all, it not only implemented a program that was not authorized by Congress, it spent money on implementation of that program and the program was intended to actively assist recipients in breaking the law) and DACA would have, at least temporarily, been stymied by a national injunction by some random district court judge.

    Did the Democrats learn nothing from nuking the filibuster for nominees except for Supreme Court Justices?

  20. The real crime here is allowing hatred of Trump to blind us to a blatant political maneuver. Nobody is falling for the “I cried wolf for 3 years but now I’m really sorry and I’m telling the truth this time I swear” argument. It’s disappointing that intelligent people even feel the need to discuss the merits. Even if there were a strong case, it’s like trying to convict someone using evidence that was illegally obtained.

  21. given the realities that the Senate will not convict, why shouldnt the House simply pass a motion of censure? that would preserve impeachment for truly egregious acts or omissions and not “stupid stuff” as Obama used to say.

  22. “President Clinton committed a crime, perjury,” according to Representative Steve Chabot. The Independent Counsel investigated this perjury accusation and decided not to indict. So the standard being put forth Chabot, Turley, and others would seem to be that you should have some sort of crime to impeach, but not necessarily one where a criminal indictment would be appropriate. That strikes me as a pretty weak standard.

  23. You have hit the nail on the head.

    If Joe Biden were not running for office would Dems still say Trump’s actions (assuming all charges made by Dems are true) are an abuse of power? If not, why not?

    If the Bidens were republicans would Dems still say Trump’s actions (assuming all charges made by Dems are true) are an abuse of power? If not, why not?

    Surely Trump ran as the great drainer of swamps, so a scalp of a fellow republican would only burnish that reputation to a greater extent. So why would that not be an impeachable offense as per the Dems claim that Trump is only acting in his interest and not the state’s. This is another of the false dichotomies Dems have been peddling lately. A person can do a thing for many reasons at the very same time, and several countries can interfere with our elections at the very same time, despite the claims of House Dems. A president can investigate (or not) an incident for many reasons. If Trump had ignored his duty and turned a blind eye to the Biden shenanigans one could say that itself was in furtherance of his interests.

    1. If Joe Biden were not running for office would Dems still say Trump’s actions (assuming all charges made by Dems are true) are an abuse of power?

      I think the point is that if Biden was not running for office, Trump would not care. Maybe someone in the DOJ would care. But Trump’s motivation appears to be entirely political — get some dirt on my likely opponent.

  24. “It is commonplace for Presidents to ask foreign governments to conduct investigations.”

    I haven’t had any luck finding examples of this “commonplace” occurrence prior to the Trump Administration.

    Indeed, on Oct. 4, Eamon Javers asked Trump, “Have you asked foreign leaders for any corruption investigations that don’t involve your political opponents?” Trump couldn’t name any, and as far as I have been able to determine the White House hasn’t come up with any cases since then. So I don’t think it would qualify as “commonplace” even in this Administration.

    I also looked for examples of a President asking the Department of Justice to conduct an investigation, and couldn’t find examples of that. Instead, I found a bunch of information about rules designed to *prevent* political influence on criminal investigations.

Please to post comments

Comments are closed.