Impeachment

The Other Impeachment Article

|The Volokh Conspiracy |

Over at the New York Times, I have an op-ed on Article II of the impeachment of President Trump. This article charges the president with obstruction of Congress because of his refusal to provide witnesses and documents to the House as part of its impeachment inquiry.

The House Democrats have not done a particularly good job of laying the groundwork for this article. They devoted hardly any time in congressional committees to the issue of presidential obstruction. They largely ignored it in their presentation of the president's misconduct. They muddied the waters by also pursuing a lawsuit hoping the courts will weigh in in favor of their right to this material. They are "threatening" to sit on the articles of impeachment unless the Republicans agree to hear in trial the very testimony that forms the basis of the obstruction charge.

Nonetheless, the president's unusual and extreme defiance of Congress demands a response if Congress is going to be able to preserve its own constitutional prerogatives. Impeachment is not the only possible response to such obstruction, but it is a possible response. Hopefully, the Republicans in Congress will not succumb to the temptation to defend the president by arguing that it is actually a good thing for a White House to engage in blanket obstruction of congressional oversight, up to and including impeachment inquiries.

Here's a taste:

The White House has claimed that it is not for Congress to question how executive officers are conducting their duties, but rather that it is for the executive to judge whether legislators are performing theirs — and to ignore, stonewall and obstruct Congress when the executive is not satisfied with the answer. In doing so the Trump administration is, in effect, seeking to undo the constitutional checks put in place at our founding.

Read the whole thing here.

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  1. Extreme? I suppose you could make that argument. Unusual? Hardly.

    1. This article has been brought to you by Libertarians against Due Process.

  2. Paywalled. I’m sure it’s a good article, though.

    I don’t think executive privilege should be recognized at all – at least when Congress is investigating subjects within its legislative or judicial power.

    The availability of the courts, though, indicates that Congress has alternate remedies before going for impeachment.

    I’d be less indulgent of Pres. Trump if he were the first to try to use executive privilege against Congress. But his predecessors have been doing this at least since 1954, when Eisenhower refused to give information about the operations of the government – operations Congress appropriated the money for – to a subcommittee of the Government Operations Committee. Eisenhower got away with it because (a) who’s going to impeach Eisenhower and (b) his adversary was Joseph “Beelzebub” McCarthy.

    Since then we’ve seen Presidents use “executive privilege” against Congress on a bipartisan basis, on issues essential to Congress’s work.

    This has muddied the waters so much – and Congress has been so ambivalent about asserting its prerogatives – and the courts haven’t killed executive privilege like they should have – so a President can basically rely on good faith on executive privilege for anything. The way to stop this is for the courts to put a stop to this, and for Congress to impeach and convict anyone who defies the courts. The courts are the closest to an impartial arbiter we have in Congress/President disputes.

    Once “executive privilege” has been recognized as a fake privilege, it will be time enough to impeach any President who dares use it.

    1. The real problem here, is that Trump hasn’t asserted any privilege.

      He’s simply said “YOU GET NOTHING,” and ordered his Executive Departments to follow that mantra.

      That isn’t a legal argument, it’s just Obstruction. (And yes, “Executive Privilege” should die, as it’s an affront to the oversight clause of the Constitution.)

      1. The “oversight” clause?

        Which clause in particular is that?

      2. It’s hard to think what kind of “moderate” assertion of executive privilege which would have satisfied the House, or at least dissuaded them from impeachment.

        Congress could have passed – and still could pass – a law saying, “executive privilege? No such thing. Asserting it vis-a-vis Congress is impeachable.” The Pres would presumably veto it and Congress could then repass it by a large enough majority – assuming Congress is able to stand up for its prerogatives.

        To soften the blow, they could provide that certain sensitive information be reviewed by a Congressional official with an intelligence background, or whatever.

        I’m on your side, Congress – are *you* on your side?

        1. It’s hard to think what kind of “moderate” assertion of executive privilege which would have satisfied the House, or at least dissuaded them from impeachment.

          Well, obviously, nothing relating to that would have dissuaded them from impeachment on the first count, abuse of power. But a more reasonable position with respect to executive privilege could have headed off the second count.

          (A more reasonable position would have been “We’ll appear and answer some questions and provide some documents, but a few specific documents will be withheld based on e.p.”)

  3. That’s fair. Criticizing “the president’s unusual and extreme defiance of Congress” while ignoring that the president was reacting the House’s “unusual and extreme” abuse of process and precedent throughout this impeachment farce.

    1. Which rules of the House were violated?

      In order to claim the process was abused, you’d have to point to a process which was, you know, abused.

      Since none of the House rules were violated in the process, this should make for a good laugh. There’s also no such thing as ‘abuse of precedent.’ Each House makes its own rules – what a Congress did with Clinton or Nixon has no relevance.

      1. No, that’s precisely what abuse is – not violating the rules but operating in such a manner that had people thought of it before (whatever prompted the actions) all would have agreed they should have a rule preventing it.

        The problem is that all rules can be gamed, so you either need genuine goodwill, an omnipotent mediator, or shenanigans.

      2. The House made its rules although its rules violated Constitutional Rights starting with Due Process!

        1. Flame, that statement is either a lie, or willful ignorance.

          There is no Constitutional right to “Due Process” in an impeachment investigation, or trial. Check the 5th Amendment carefully.

          Maybe read the Constitution once in a while instead of spewing forth whatever you hear on Fox News.

          1. Yes you should read the constitution. Then point out where is says that the officers can be impeached for non-crimes. Go ahead. I’ll wait.

            Ok, now that you’ve failed to provide it, let us look at what reasons the constitution says impeachment is the had: “treason, bribery, or other high crimes and misdemeanors”.

            Are misdemeanors crimes? Yes. Is bribery a crime? Yes. Is treason a crime? Yes. Obviously “high crimes” are, well, crimes.

            So where does it say that you can impeach for things that are not crimes? Nowhere.

            Now since we are talking about the constitution here, and the constitution doesn’t say impeachment doesn’t involve crimes, and indeed only says it involves crimes, what text in the fifth amendment that you mentioned specifically excludes crimes when alleged to be committed by an officer of the government?

            Here is the text, feel free to quote the part that says impeachment is excluded:

            No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

            1. As expected, the stupid parade continues:

              “..high crimes and misdemeanors” does not – as you claim – specifically refer only to crimes found in the penal code.

              https://www.theatlantic.com/ideas/archive/2019/10/what-does-high-crimes-and-misdemeanors-actually-mean/600343/

              Impeachment is a political process – not a criminal case. There is no deprivation of life, liberty, or property.

              For a multitude of reasons, your bullshit falls flat.

  4. The legislature is empowered to inquire into the conduct of the officers in the other two branches of government and remove them if necessary — the impeachment power is the paramount symbol of the primacy of Congress in the constitutional scheme.

    The Constitution provides the House with the power to impeach, and the Senate with the power to try an impeachment. It does not provide any power to “investigate.” However, any citizen has power, aka liberty, to investigate anything he pleases, though he does not get any power to issue subpoenas or compel witnesses. Members of the House obviously have this same power as citizens. The problem is that the Constitution offers the House no “compulsive” powers with which to pursue any investigation into impeachment.

    It is impossible for Congress to meet its constitutional responsibilities if the executive branch refuses to cooperate with its lawful investigations.

    If this is true, then happily the Constitution provides a mechanism for Congress to acquire powers to compel the Executive. If it is indeed impossible for the House to exercise its impeachment power without acquiring compusive legal powers to issue subpoenas and compel witnesses, the Necessary and Proper Clause gives Congress the power to pass laws granting itself those compulsive powers.

    Hence all Congress has to do is use the powers it already has in Statute, or if those are thought inadequate, pass some more. There is no reason to beleve the Courts will not enforce them, if the Courts agree that they are Necessary and Proper for carrying into execution the impeachment power.

    If the Presdent refuses to comply with a final Court order in such matters that’s a perfectly good reason to impeach him. But until then, not so much.

    1. Possibly disagree. The problem here is that the ultimate goal of this article of impeachment is Presidential decision making. What the Democrats seem to be attempting to discover is whether the President voiced any sort of improper motive in his decision making, which could then be used against him in their Abuse of Power claim. And the problem is the Presidency has equal legitimacy to Congress under our Constitution. Separation of Power essentially requires that Congress cannot interfere with the operation of the Presidency merely by passing a law.

      The way around this in many cases revolves around the fact that Congress created much of the Executive Branch through legislation, and as a result have A1S1 oversight power over their creation. But they didn’t create the Presidency, so have no oversight over it (excluding, to some extent, through A1S2 impeachment). Traditionally, the line is essentially the further down in the Executive branch you go, the more oversight power Congress has. In this case though, the Dems’ very obvious intent (given the list of those they want to interview) is to discover what was said by the President in meetings with his top advisors and his attorney. Which puts those conversations far into the President’s Article II Powers to protect his personal conversations. Contrast that with President Obama’s invocation of Executive Privilege during the investigation into Fast and Furious, where the conversations being investigated worked for the ATF and DOJ, both created by Congress and located a distance from the White House.

    2. ” The problem is that the Constitution offers the House no “compulsive” powers with which to pursue any investigation into impeachment. ”

      There IS inherent contempt, last used to investigate the Teapot Dome scandal. I think I’d find it quite entertaining to see the House send their Sargent at Arms over to the White House to arrest Trump.

      1. “Inherent contempt” is pure judicial invention. It doesn’t appear in the Constitution. It’s simply an end run around the procedure actually required by the Constitution – passing a Statute that confers powers that are necessary and proper for carrying into execution a power that is explicitly stated in the Constitution. The fact that it’s an ancient judicial invention does not improve the smell.

  5. POTUS Trump isn’t the only person who is scorning Congress these days…

  6. It seems you’ve largely assumed a position that is crucial to your conclusion. That is, you assume that the Congressional inquiries are a part of the legislative branch’s check on the presidency. The executive branch obviously disagrees. If that disagreement is grounds for impeachment, then you basically have said Congress get override the President on this issue and that the President’s only check is by getting the electorate to punish legislators (though that doesn’t help him/her in the moment).

    Conversely, if the executive branch is correct, then it’s properly exercising its powers. This sort of dispute is common in legal battles. I’ve not met a party yet who didn’t have some complaint about the other side’s privilege log.

    When the legislative and executive branches disagree, it seems the next step is to go to the judicial branch for a resolution. If the courts determine that Trump can’t invoke the privilege, then it’s obstruction and continuing in this way would be impeachable. But the way you describe it, it’s a disagreement between two sides on an issue.

  7. If I were somehow installed as president at this point I would work with congress on an act to establish an office of permanent government oversight. Sort of like a super IG for the whole government with broad subpoena powers, but they should be monitoring and investigating all three branches of government. Its work product would be to produce documents that would be provided simultaneously to congress and the executive.

    It would not rely on breaking news and leaked documents. It would investigate regardless if there has been evidence of a crime or not. Or whether there is drama or not.

    The trick would be to find a way to keep it non-partisan and independent and with iron-clad internal checks and balances to keep it that way. Very very difficult given how Trump has given a grand demonstration of how much an unrestrained president can do. Congress has also done their share — (remember threats to defund the GAO since they were issuing reports that Republicans didn’t like? but I think it can be done.

    1. Why isn’t this just a broader GAO?

    2. While attractive in theory, are there any examples in all of history of such an organization staying non-partisan and independent?

      I ask because I can think of several organizations that started as you desire but rapidly failed to stay independent and became de facto kingmakers.

      1. Kingsmen?

        Nope, they went bad in the first film. So no, not even in fiction.

    3. “unrestrained president”

      Good lord. Such a nonsense statement.

  8. There is zero Constitutional problem with the President refusing to cooperate nor with the House holding it against him, leaving it up to the Senate to decide who is right.

    The Courts should have no role.

  9. As if Trump were the first President in history to stonewall Congress.

    1. Do you spend a lot of time on these fallacies, or do they just come to you naturally?

      1. If Trump was not the first, then stonewalling is just business as usual.

        1. Evidently your ability to conjure fallacies is innate.

          Thank you for clarifying.

  10. Everyone that’s still saying this isn’t new after being repeatedly told this blanket refusal of all executive officials is indeed unprecedented….now it’s just gaslighting, right? Because I know you can read.

    1. Except by Clinton. And Eisenhower.

      1. They forbid all executive officials from testifying? Your history is quite different from reality, I think.

        1. Eisenhower basically did, yep. It was really very broad.

          https://www.annenbergclassroom.org/resource/executive-privilege/

          Clinton was just preventing key aides from testifying to Starr. Starr’s push wasn’t as broad as Congress’s

    2. No one ever used the word “blanket” before. It’s completely new and very blankety.

      I’m pretty sure no action taken by anyone was exactly, perfectly the same as some previous action. So all actions are new and different.

      The question is, why are you guys hyperventilating this time? And why should anyone take you seriously when you split hairs and push double standards?

      1. Ben, you’re once again just repeating yourself.
        This is different in degree from past Presidents to the point of being different in kind.

        Writing ‘Actually, none of the differences matter and it’s you who have the double standard’ is just stomping your foot and saying no.
        Which is increasingly your thing, it seems.

        1. I would note another key difference is that Clinton refused to cooperate with a Special Prosecutor, appointed by Congress; whereas Trump refuses to cooperate with a sub-committee of the House. Not to mention Clinton was authorized by the House rules to have an his attorney present as well as have his sides questions answered as well as calling his own witnesses in the House proceedings; whereas Trump was not allowed to have an attorney present, not allowed (even thru House Republicans) to call nor question witnesses.

          1. Starr sure did get lots of depositions. And Trump refused to cooperate with the entire House’s investigatory function; don’t minimize.

            Anyhow, by that argument, the Mueller report’s discussion of Trump’s lack of cooperation makes Trump out as worse than Clinton.

            Your standards look a lot like they are tailored after the fact to justify what you want to justify.

        2. Telling hysterical people to chill out is exactly the same as foot stomping. It’s Sarcastr0 storytime and phony drama must always rule the day, all day, every day.

          1. I explained the basis for my argument. You did not actually engage with it; just said the opposite. Argue better.

            1. The argument against “I consider this new and different” is what? No you don’t consider it that way? Your opinion about it being new and different is yours.

              Non-obsessed people aren’t interested, except to perhaps suggest being less obsessed. Because your weird obsession is bad for you and the people around you.

  11. So is Trump formally “impeached” as yet?

    1. To be honest I’m not sure.

      I was always told; if it isn’t documented (filed), it never happened!

      It appears like a prosecutor that has an indictment but hasn’t filed it with the court. While I understand this is a political not legal process; I find it hard to square with the US judicial/legal system and more importantly the Constitution and Rights contained therein.

  12. Here’s the deal. Executive privilege is real, as per US v Nixon.The Court granted that there was a limited executive privilege in areas of military or diplomatic affairs. The real question here is “What are the limits on it, especially in this particular case?”

    The President has handed over the record of direct conversation(s) with the Ukrainian president that were requested (or to be requested). It’s the further fishing expedition he objects to.

    In the words of the court
    “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution.”

    Democrats must specifically request certain items, which a court would approve or disapprove. Not a simple wide fishing expedition against everyone and everything. The separation of powers between the branches is real. The President is not subservient to a single branch of Congress, nor is he required to bend to their every request.

    Trump has been through one of these inquisitions already (ie, the Mueller report), where he didn’t limit talks via executive privilege, and had every little comment scrutinized. Indeed, if Trump was to ask an advisor “How do I stop these Democratic witch hunts?” some would jump on that as evidence of obstruction of justice. It’s no surprise he doesn’t want to go through it again, without firm rules on what is actually needed to be disclosed.

  13. I’m not a fan of executive branch stonewalling, but I have strong due process concerns on an “obstruction of congress” charge for merely waiting for final court orders on the validity of subpoenas before testifying.

    https://thehill.com/opinion/judiciary/474710-supreme-court-ruling-pulls-rug-out-from-under-article-of-impeachment

    1. Trump wasn’t waiting for final court orders. Dershowitz, like Turley, is lying about Trump’s position wrt these impeachment issues. Trump is taking the position that he and his people are absolutely immune — not merely that they have an executive privilege not to testify about certain subjects, but that they need not even appear — and that this position is non-justiciable.

      1. It is truly sad that the Progressive Democrats went back to their roots from the KKK and Jim Crow eras. There so-called investigation reference Ukraine reminds me of “investigations” and “trials” of POC in the Southern Progressive Democrat controlled States! Nothing more than a lynch mob then; nothing more than a lynch mob now!

        1. While I think a majority of the country would not be displeased to see Trump lynched, it is my solemn duty to inform you that in fact the only thing that they’re trying to do is fire Trump from his job, not hang him from a tree.

          1. I suppose it is my solemn duty, then, to inform you that the use of the term “lynch mob” does not mean someone is literally seeking to hang someone from a tree. In point of fact neither does using the term “lynching” mean that. We have many, many examples of Democrats and Republicans using those terms to describe the other side’s political activities over the years.

            In particular Joe Biden himself used the term to describe the impeachment of Clinton. He called it a “partisan lynching”. Many Democrats used that term to describe the impeachment of their POTUS. It j fact let us get right down into it: Nadler used it. He specially said the Republicans were “running a lynch mob”.

            On a related note, the term “witch hunt” likewise does not mean someone is looking for literal witches to shoot.

      2. And the courts could adjudicate such a position.

  14. If the House wants info, they should negotiate for it in good faith. If they won’t, no one should expect the Senate to take their actions seriously — not more than the absolute minimum to accomplish the Senate’s role. That’s what we are seeing.

    Too bad the House committee couldn’t be bothered with anything approaching due process. What a huge waste of time.

  15. Here is world-renowned ethicist Jack Marshall.

    http://ethicsalarms.com/2019/12/19/open-forum-post-impeachment-edition/#comment-665493

    The response is to challenge it in court. If Congress abuses its oversight role, what is the President’s option? The position that POTUS has no obligation to cooperate with a partisan exercise using the oversight process to fish for excuses to impeach him is only “unusual and extreme” because the “resistance” in the House has been behaving outrageously. This is where the Johnson impeachment becomes relevant. He took the “unusual and extreme” measure of deliberately breaking an unconstitutional law passed to neuter his power, The Tenure of Office Act. Congress impeached him for it, and almost removed him, but he was right, as SCOTUS confirmed after he left office.

    1. Excellent post, I agree. I find it remarkable that those who dislike Trump assert that Trump must do exactly what Congress demands, regardless; that there is no legal recourse. And, that failing to heed Congress is itself grounds for impeachment. Dems and resisters are beclowning themselves.

    2. Nice appeal to authority. Dunno the guy, and he taught at my law school while I was there!

      [A] partisan exercise using the oversight process to fish for excuses to impeach him is begging the question, and rather giving the game away with respect to partisan allegiance. And furthermore is not a decision the person under investigation should make. Indeed, it’s not what those under investigation by law enforcement are allowed to do.

      1. So you’ve never heard of the fifth amendment, then? You don’t realize a cop can not just ask to search your house, right? And further that a warrant must describe the exact thing they are looking for and where it will be, right?

        If you are going to use the law angle, you are subject to using it all. And we should be. I don’t care who the POTUS or what they are accused of – it should be done under the law not under politics. That means they need to accuse the POTUS of specific crimes, or be referencing crimes they were convicted of for activities they did while in office.

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