The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
During the debates surrounding the Mueller investigation into possible Russian interference with the 2016 presidential elections, we heard a great deal about presidential use of "otherwise lawful powers." There were those who thought President Trump had committed criminal obstruction of justice in his efforts to bring the investigation to a rapid conclusion. Trump had not done the sort of things that any private individual might do to obstruct justice, such as tampering with documents or concealing evidence. Rather Trump had done things that only a sitting president could do. He had used, or contemplated using, the powers of his office to cut short the investigation by, for example, firing FBI director James Comey.
This gave rise to the difficult constitutional question of whether Congress could ever make it a criminal offense for a president to use his otherwise lawful powers as president. Robert Mueller thought that Congress probably could. William Barr thought Congress probably could not. I tended to agree with the attorney general on this point.
This does not mean that the president is beyond any accountability for how he uses his powers. As both I and the attorney general emphasized, the proper places to hold a president to account for abuses of his otherwise lawful powers are at the ballot box and in a court of impeachment.
Alan Dershowitz and my Volokh co-blogger Josh Blackman have contended that "otherwise legal conduct" cannot become an impeachable abuse of power. Otherwise, they say, anything that an ordinary politician might do could place them in the impeachment crosshairs. They would extend the argument that government officers cannot be criminally prosecuted for otherwise legal actions to also hold that they cannot be impeached for such actions.
This is a very sweeping doctrine, and one that is at odds with how the impeachment power was discussed and applied from the founding to today. It is ultimately subversive of the constitutional system of checks and balances.
Presidents, as well as other government officials, are given vast discretionary powers. Some of that discretionary power can and should be pared back through statute, but a great deal of discretion is unavoidable and even desirable and quite a lot is directly vested in the president by the Constitution itself. We hope that officers will use that discretion wisely, but they might use it foolishly. They might even abuse it in a host of ways.
The question then becomes what can or should be done about officers who abuse their power, who act within the scope of their otherwise lawful power but who do so in intemperate, imperious, despotic, or dangerous ways. The effective answer offered by the Dershowitz theory is that one should wait until the next election—if there is a next election that is relevant to that particular abusive officer—and replace the officer. In the meantime, the country should simply suffer whatever damage the abusive officer is willing to mete out.
This is contrary to the very purpose of including the impeachment power in the constitutional scheme. The framers recognized that the president, and other government officers, might abuse the discretionary power with which they are entrusted and they might do so in ways that are simply intolerable. A president who brazenly granted pardons to minions who engaged in criminal activity to advance the president's own goals should not be tolerated until election day. A president who categorically refused to cooperate in any way with congressional investigations into misconduct in the executive branch need not be tolerated for another four years. A president who sweepingly refused to enforce laws with which he disagreed under the cloak of prosecutorial discretion need not be left in the position of chief executive. A president who rashly used American military power to assassinate American citizens and foreign leaders abroad or invited cataclysmic war need not be left as commander in chief. A president who stubbornly refused to use military force to protect American citizens and territory from foreign military aggression need not be left to serve out his term. A president who directed executive branch officials to use all available lawful tools to harass and intimidate their political enemies without any credible rationale for doing so need not be left in office to continue his campaign of governmental harassment.
It is not easy to impeach and remove any government officer, let alone a president. A partisan majority in the House of Representatives might be able to abuse the impeachment power and convert it into a weapon of factional politics. Convincing a supermajority in the Senate to do the same has proven to be an insurmountable obstacle to bringing such an abuse to fruition. The supermajority requirement in the Senate is the ultimate check on the congressional use of the impeachment power.
Congress too might abuse its discretion in exercising its lawful power. It might impeach and even remove an officer without adequate justification. Ultimately, it will be up to the voters to determine whether Congress has used the impeachment power inappropriately. But the constitutional framers believed that if accusers could convince a supermajority of the Senate that an officer has grossly abused his or her otherwise lawful powers, the nation would be safer if those electorally accountable representatives of the people could take steps to remove that officer from power before too much damage was done.
An impeached officer might offer a variety of explanations to senators to try to convince them to acquit. A president might claim that he was in fact acting in the public interest. A president might claim that he had not realized that such an action would be seen as abusive. A president might claim that even if the actions that he took were misguided and wrong, they were not so consequential as to justify an early end to his tenure in office. A president might argue that the type of actions in dispute can and should be considered by the voters at the next election. A president might claim that the abusive actions in question had already been remedied and presented no further danger to the nation. If enough senators are convinced by such explanations, they can vote to acquit and let the voters judge whether they have made the right decision.
What a president should not do—and what senators should not accept as a viable defense—is claim that the use of his discretionary authority, no matter how tyrannical or dangerous, is beyond the reach of the impeachment power.
Update: Josh notes that there is important space between his position and the one that Dershowitz has staked out. He notes:
There is a simple, but important distinction between me and Dershowitz. In my view, an action taken with mixed motives–both personal political advantage and for promoting the general welfare–should not be considered an abuse of power. For Dershowitz, an action taken solely based on advancing personal political advantage cannot be an abuse of power, precisely because promoting personal politics is in the national interest.