Impeachment

Otherwise Lawful Powers and Impeachable Offenses

|The Volokh Conspiracy |

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.

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  1. I’d say a lot of the power still rests with the people – even on impeachment.

    The senators are very closely listening to their constituents on how to vote, whether to allow witnesses (look at Sen. Murkowski), etc.

    As we all know, politicians (all parties) put the maintaining their position above all else (country, god, integrity).

    1. Correct, if profiles in courage were the rule rather than exception JFK would have written about profiles in cowardice. In Ted Cruz’ own words Ted Cruz is a “sniveling coward” and so he would be featured in the very loooong book with thousands of profiles—Profiles in Cowardice.

      1. How dare you sneer at Sen. Ted Cruz in that manner?

        A “coward?”

        Just look at how Sen. Cruz stood up to Pres. Trump when then-candidate Trump called Sen. Cruz’ wife a ‘pig’ and ‘hideous’ . . . and at how quickly Sen. Cruz extracted an apology from Pres. Trump on behalf of his wife . . . and how Sen. Cruz manhandled Pres. Trump for claiming Sen. Cruz’ father was involved in the John Kennedy assassination . . . and how Sen. Cruz treats Donald Trump to this day . . . and . . . well, you get the picture.

        And have you forgotten that Sen. Cruz — known widely as “the Courageous Libertarian” — was the favored candidate of the founder of the Volokh Conspiracy?

        Ted Cruz is one of the most important reasons for the hashtag:

        #ConservativeCourage

        1. Everything’s relative. Ted is a lion of courage compared to Lindsey.

    2. The senators are very closely listening to their constituents on how to vote, whether to allow witnesses (look at Sen. Murkowski), etc.

      Given that the polls showed overwhelming support for witnesses — in the 70 – 75% range across multiple polls — (much higher than support for removal) I think that’s a dubious proposition.

  2. The notion the Senate can’t determine what amounts to an impeachable offense is absurd. Everyone knows the Mueller investigation was a joke with Hillary doing worse “Russia collooshun” by hiring a foreign Russia expert to conduct her opposition research.

    As an aside I will never understand why the Mueller investigation took an adversarial attitude towards Trump when it was obviously not necessary AND it was obvious foreign countries were going to begin interfering more in our elections so you needed everyone on board to mitigate foreign interference. Now Republicans are skeptical of foreign interference because they believe it is a scare tactic by Democrats when it is very real…talk about COUNTERPRODUCTIVE!

  3. Interesting that you want the voters to be the check against the house using its otherwise lawful powers for blatantly partisan advancement when *impeachment* is available as a remedy for any abusive federal official. Please square your circle as to why Pelosi and Schumer should be spared under exactly the same fact pattern you think affords trump no protection.

    1. “Please square your circle as to why Pelosi and Schumer should be spared under exactly the same fact pattern you think affords trump no protection.”

      Pelosi and Schumer can’t be impeached because they are not “civil officers of the United States” under Article II, Section 4. They can be removed from office, however, under Article I, Section 5 which permits “Each House” to “punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” The House (Pelosi) or Senate (Schumer) can remove members on 2/3rds vote.

      So I guess the real question is why do you think President Trump is entitled to special pleading that Pelosi and Schumer are not?

      1. The House has impeached a Senator in the past, so obviously you cannot be correct.

        1. And then the Senate decided that the impeachment was out of order and refused to take it up. And since then everyone has agreed it was incorrect.

      2. Oh, sorry, is there a process is functions identical to ‘impeachment’, but technically has a different name? My mistake. However your appeal to semantics is evidence that you don’t have a response to my broader point, which is the opposite of special pleading for trump. Rather, Keith argues for the voters to be the sole arbiter of abuse of power in one branch, and an extrademocratic proceeding in another branch:

        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.

        He offers no justification for the different standard to apply, except presumably: ‘orange man bad’.

  4. This is very persuasive. My own formulation is that a president shouldn’t be impeached for alleged bad motives where he was otherwise acting within the scope of his legitimate authority. I think the “legitimate” part leaves more room to address impeachable misuses than a formulation focused more strictly on whether the conduct was otherwise strictly legal – while keeping the focus on the underlying act rather than presidential intent (and the character-based inferences and impeachments that seems to permit). But perhaps the “legitimate” part only does meaningful work if it means something akin to “legal.” Either way, their does seem to need to be a way to use impeachment to hold presidents account where they act legally but improperly in some extreme, whether or not this is an appropriate case for that.

    1. If you are persuaded by Whittington’s argument, then wouldn’t it be the case that “legitimate” can’t be defined as akin to legal? And if “legitimate” isn’t akin to legal, what defines its scope? Unless I see a good argument to the contrary, taking into account corrupt versus honest intent is unavoidable.

      1. I don’t think legitimate can mean legal. I’d rather ask (1) whether the underlying conduct is of a sort that we’d impeach for regardless of the presidents character or the motives we’re willing to impute, than (2) whether the underlying conduct warrants impeachment in light of what we’re willing to conclude about the president’s motives in a particular case. That’s what the test was meant to set up. Either way, I think that the furor over Dershowitz shows that the framing really matters. I agreed at the time with what he said, because I interpreted him in light my own views; but I see now that he said it a manner that could be legitimately characterized (and willfully mischaracterized) in many ways, including ones raising the concerns highlighted in the OP.

        1. On #1, I’m not seeing how any conduct qualifies since by assumption he acted in accordance with his power. Perhaps an example would help better understand this argument.

  5. One side: What if his legal power use is really really really bad? We need to be able to remove him in spite of that!

    Other side: What if the opposition is highly political and have the numbers to impeach over legal policy differences?

    I forget which side I am on, but I definitely give great weight to one or the other of these philosophical principles based on the issue of the moment.

    1. I agree with you we need to lean against the latter in favor of living with the former. Where we likely disagree is I believe the case against Trump is overwhelmingly strong enough that we aren’t in the former case.

  6. “He had used, or contemplated using, the powers of his office to cut short the investigation by, for example, firing FBI director James Comey.”

    Except for the obvious point that firing FBI director James Comey didn’t actually cut short the investigation, and no sensible person would have expected it to. It’s not like the FBI director does all the work. So it never made a lick of sense to claim that he’d fired Comey to end the investigation.

    In retrospect, it was just an excuse to sic Mueller on him. Literally, used as a predicate for the independent counsel being appointed, by the very man who had written the memo recommending Comey’s firing.

    It was all a setup from the very start.

    1. Correct, Bush loyalists orchestrated the Mueller investigation. McGahn is also a Bush loyalist that infiltrated Trump world and refused to fire Mueller. Guess who else is a Bush loyalist?? Bolton…and Tillerson…are you seeing a pattern here??

    2. Comey deserved to be fired, he was and is a loose cannon. His conduct since clearly demonstrates it.

      Odd that few people mention that prior to Trump’s election Hillary’s followers wanted him fired for his handling of the Hillary email investigation. They only backed him when he turned his loose cannon on Trump.

      1. It’s odd that you would bring up Hillary’s followers at all in this discussion. But rest assured, many “people mention” Hillary’s followers’ previous consternation with Comey. On this blog it is mentioned frequently, including off-topic (see, you).

        1. Plus, it’s just illustrative of the importance of focusing on motive. It’s not firing Comey that’s a problem; it’s firing Comey for corrupt reasons.

    3. Brett : “Except for the obvious point that firing FBI director James Comey didn’t actually cut short the investigation, and no sensible person would have expected it to”

      Trump, bragging about firing Comey to Russian foreign minister, Sergey Lavrov, and ambassador to the US, Sergey Kislyak (inside the Oval Office) :

      “I faced great pressure because of Russia. That’s taken off.”

      Apparently, “no sensible person” includes our president. Not surprising to me, since I’ve always know Trump is a dumpster-fire buffoon, but I’m surprised Brett agrees with me.

      Meanwhile, you had the National Security Adviser lying to the Vice President about his Russian contacts, you had Trump’s campaign head giving private briefings to someone U.S. intelligence considered a Russian spy, you had Trump’s son-in-law asking to use Russian secure communication equipment so no one could hear what he says, you have Trump’s son responding with glee when told the Russian government wanted to secretly help Daddy’s campaign, and you had Trump’s fixer carrying on secret business negotiations with Russian officials right up to the eve of the election.

      While Trump repeatedly lied to the American people about just that very thing. And at the same time, when Trump “jokingly” asks the Russians to hack Hillary Clinton, Russian Intelligence does so within five hours. But that was a slow compared to their response when the Trump campaign was rocked by the Access Hollywood scandal. The Russians started leaking their trove of hacked Podesta emails within one hour after the Access story broke. Care to guess why? (Both of those discoveries are in the Mueller Report, btw)

      Sorry, but “no sensible person” would say something so clownish as it was “all a setup”. That ignores all the sleazy & bizarre actions by Trump, his family, and his hand-picked associates. There is more than enough there to earn a special counsel, including firing a FBI Director to “take the pressure off”. Almost every president these past forty-odd years has faced some kind of extensive investigation, and seldom for so deep & extensive a set of reasons as Trump.

      What I presume Brett means is we should hold Donald to a lesser standard than any predecessor because he was already a sleazy huckster criminal the day he took the oath of office. What he said makes no sense otherwise……

    4. Except for the obvious point that firing FBI director James Comey didn’t actually cut short the investigation, and no sensible person would have expected it to.

      Do you think if you repeat a dumb argument that it will somehow become less dumb?

      First, Trump isn’t a sensible person, so the “no sensible person” standard doesn’t apply.

      Second, the notion that firing the head of an organization for doing something can have no effect on the person’s subordinates is beyond laughable. Pour encourager les autres is a thing.

      I mean, Jesus, there is direct historical precedent contradicting your view: the Saturday Night Massacre.

      by the very man who had written the memo recommending Comey’s firing.

      Misrepresentation. Trump first decided to fire Comey, for his own reasons, and then asked Rosenstein to write a memo. Rosenstein did not somehow trick Trump into firing the guy by writing a memo.

  7. There is a fairly stark difference between the firing of Comey and the Saturday night massecre / watergate. The saturday night massacre nixon ordered the firing of the special counsel without cause. In Comey’s case, there were substantial reasons for his termination. Both sides of the political spectrum had legitimate objections to his performance, objectivity, etc.

    In sum, no objective analyis of the multiple reasons for his termination could be termed wrongful

    1. As noted above, Trump bragged (no other word for it) that he fired Comey to take pressure off the Russian investigation. He bragged about this to Russian officials inside the Oval Office, just after he pushed Comey out. It was more honest than practically anything else ever heard from Trump, because his his pure id was running his mouth.

      So what we have here is a prequel to the Ukrainian Mess : Trump does something sleazy and indefensible, abusing presidential powers for his personal benefit alone.

      His defenders then follow like the man with shovel and pan walking behind the elephant – to invent semi-plausible “reasons” why Trump abused his office. Even they must know these “reasons” are lies, but they pretend otherwise…..

  8. What makes the President’s situation unique is that he is one person who single-handedly wields an immense amount of discretionary power. This is not an accident. Great power is sometimes needed to deal with great emergencies, as the Romans knew when they appointed a dictator. But the more power you grant a single individual the greater the risk they will abuse it, and you may not be able to count on the next election to correct the situation if the nature of the abuse is to corrupt that election.

  9. Final Examination: Constitutional Law I

    The Constitution gives the President the power to pardon. Suppose that a sitting President issues pardons in exchange for bribes. Please address the following questions:

    1. Can the pardons be overturned on the grounds that they were procured by bribes?
    2. Can Congress pass a statute authorizing the rescinding of pardons procured by bribes? If your answer depends on who would hold the power to rescind, please explain.
    3. Can the President be criminally prosecuted for bribery either:
    a. while in office, or;
    b. after the expiration of the President’s term (if the bribery occurred within the applicable statute if limitations)?
    4. Can the President be impeached for the corrupt exercise of the pardon power if, in fact, he issued pardons in exchange for bribes?

    1. #4 The President can be impeached for any reason that gets 218 votes in the House.

    2. Stupid questions: “treason bribery or other high crimes or misdemeanors”

    3. 1. Save for the one exception in Article II, Section 2, no. It’s a non-reviewable political decision. If the people don’t want Presidents to issue pardons, they should be more careful about who they elect to the office. In Ex parte Garland (1866) the Supreme Court held that Congress couldn’t place limits on the President’s pardon power. Specifically it held that the pardon power was “unlimited, with the exception stated.” In Schick v. Reed (1974) the Court reiterated that the pardon power could not be “modified, abridged, or diminished by the Congress”, so there’s a practical problem of how a pardon would be “overturned” in the first place. If you mean the judiciary can “overturn” a pardon, how would that happen? Who would have standing to file a case challenging a pardon?

      2. No, with the exception stated in the Constitution. (“…except in Cases of Impeachment”). Since the President doesn’t have plenary power to pardon people “in Cases of Impeachment” arguably Congress could pass a statute authorizing the rescinding of pardons procured by bribes in cases of impeachment, but since the pardon itself would be ineffective in the first place, there’s nothing for the congressional statute to deal with.

      3.a. Probably not.
      3.b. Probably.

      4. Of course. First, impeachment is non-reviewable, too, so in that sense there is no such thing as conduct that the President cannot be impeached for. Second, the specific conduct you’re talking about is precisely the sort of shit that is and should be impeachable conduct.

      1. If you mean the judiciary can “overturn” a pardon, how would that happen? Who would have standing to file a case challenging a pardon?

        A prosecutor. I mean, he wouldn’t literally sue to overturn the pardon; he’d just prosecute the guy for something he’s been pardoned for. Then the defendant would move to dismiss the charges on the grounds that he had been pardoned, and a court would rule on it.

        4. Of course. First, impeachment is non-reviewable, too, so in that sense there is no such thing as conduct that the President cannot be impeached for. Second, the specific conduct you’re talking about is precisely the sort of shit that is and should be impeachable conduct.

        Well, it was a bad hypo, because bribery is an independent reason for impeachment. Take that element out of the equation, though — let’s say the president decided to pardon any person who ever served in his administration or on his campaign or, hell, ever worked for the Trump Organization, but he did so without any remuneration at all. Is that impeachable? Yeah, absolutely. Madison expressly said so. (I mean, he didn’t mention the Trump Organization by name.)

  10. I disagree with both Desrshowitz and Blackman, the President can be impeached for legal acts that are in the national interest if congress thinks they are an abuse of power, if they think it’s serious enough.

    I’ll tell you why: Imagine a congressional version of qualified immunity for the president.

    Look at all the outrageous conduct police and prosecutors get away with just because some standard hasn’t been clearly articulated as being unconstitutional. I don’t want a presidential version of roadside anal cavity searches just because no one explicitly said you can’t do that.

    1. I completely agree with you, and I think we are already there. “A congressional version of qualified immunity for the president” seems pretty apt. And I’m not singling out President Trump, it applies to all recent Presidents and Congressman of the same party.

  11. “Alan Dershowitz and my Volokh co-blogger Josh Blackman have contended that ‘otherwise legal conduct’ cannot become an impeachable abuse of power.”

    I might have gone in with “should not”, but “cannot” is obviously wrong. Congress has the power of impeachment, and the House has the sole power to impeach, which means they also have the sole power to determine what is, and what is not, impeachable.

    (Of course, misuse of the power to impeach is subject to ballot-box retaliation just the same way abuse of Presidential power is… and those elections are more frequent.)

  12. Clinton’s pardon of Mark RIch –“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.”

    Harry Truman — “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.”

    Obama DACA — “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.”

    Is there any past President who would not be impeached under those standards?

    I am persuaded by the argument that we do not want a parliamentary form of government where the chief executive serves at the pleasure of Congress.

    Just as the 1st amendment is needed most to protect offensive speech, requiring definable standards for impeachment is needed to protect the most offensive Presidents.

    1. Clinton pardoned Rich on his last day in office. He would have been impeached if he’d done it earlier. (He was impeached, btw.)

      Obama knew DACA would not lead to impeachment since it’s a wildly popular policy. Not sure what that has to do with the Ukraine scandal.

      Be specific what you had in mind re: Truman.

      1. Steel seizure?

      2. Truman: That was something I saw in a Volokh Conspriacy post in the past week. It said that Truman ordered that no one in the executive branch should respond to requests from Senator McCarthy’s anti-communist committee. That was a categorical refusal.

        There is nothing to prevent a future McCarthy. If we add impeachment to the sanctions that can result from refusal to cooperate, it really ups the stakes. In terms of checks and balances, what checks the abuse of congressional subpoena power?

  13. This is Whittington caught up in the general confusion created by pitching together mixed motives and allegedly impeachable conduct, and then considering the whole mess as a lawyerly problem. The solution is to change the framing. Define impeachable conduct not as offenses against law, but as offenses against the People’s sovereignty. The baffling conundrums will arise less often.

    Do it that way, and there will be non-criminal impeachable offenses, which will be easy to discern, and easy to prosecute. There will also be criminal non-impeachable offenses, which will likewise be easy to discern, and easy to leave to legal venues other than the House and Senate. And of course there will still be impeachable criminal offenses, which will be about as readily understood and dealt with as at present.

    1. Lathrop, you really need to explain the violation of People’s sovereignty thing. First define it. Second, tell me the one single standard to which all are judged.

  14. Your argument today was more persuasive than yesterday.

    I almost wonder if with the high bar of a super majority to convict and remove, arent all these discussions on what should or shouldnt be impeachable inconsequential? I almost think that the best course of action is to impeach presidents several times per term. Why not? The Presidents not going anywhere. If youre in the house you might as well let the President know you didnt like what he did. Honestly, by the time we get to 67/100 Senators pissed off about something, by undefined definition, THAT is the real definition of an impeachable offense.

  15. whether Congress could ever make it a criminal offense for a president to use his otherwise lawful powers as president

    Wasn’t that actually an issue in the very first Presidential impeachment, that of Andrew Johnson? Something called the Tenure of Office Act?

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