The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The House Judiciary Committee released a report titled "Constitutional grounds for presidential impeachment." The report conceives of two ways that an "impeachable abuse of power" could constitute "high Crimes and Misdemeanors." First, "the exercise of official power in a way that, on its very face, grossly exceeds the President's constitutional authority or violates legal limits on that authority." Second, where "the exercise of official power to obtain an improper personal benefit, while ignoring or injuring the national interest." That is, where the official "engag[es] in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit)."
The latter concept describes the legal theories behind many prominent challenges to President Trump's exercises of authority. In case after case, both sides agreed that the President has the authority to take some action, but this President could not take those actions because of an improper motive: the travel ban, the citizenship question on the census, the DACA rescission, etc. Now, this well-worn argument will likely serve as the basis for an article of impeachment: the President can ask foreign governments to investigate possible corruption, but this President cannot make such a request because doing so could harm his political rival.
I've questioned whether this sort of framework is appropriate for the courts, but I do not have the same reservations for the impeachment process. Members of the House can certainly question the President's motives when deciding whether to approve articles of impeachment. And Senators likewise can consider presidential intent when deciding whether to acquit or convict. Indeed, this type of argument makes some sense to many constituents: why should the President be able to take public actions that privately benefit him.
My focus, as always, concerns the precedent this proceeding will establish. Yes, I am far less concerned about what happens to President Trump then I am concerned about what happens to the next President, whoever he or she will be.
Impeachment premised on some express violation of law will always be controversial. But at least proponents can point to some clear standard that justifies removal. Bribery has elements. Treason has elements. Violation of a statute (like obstruction of justice) has elements. Even impeachment based on the refusal to comply with congressional subpoena is premised on a discrete act. Every White House can know ex ante that failing to respond to a subpoena could give rise to impeachment. Presidents have some notice of what is expected of them, and can accordingly mount a defense during the trial.
However, impeachment for an "abuse of power" based solely on "corrupt" intent gives Presidents no notice, whatsoever, of what is expected of them. There is a nearly infinite range of conduct that can fall within this category. The House report explains, "[t]here are at least as many ways to abuse power as there are powers vested in the President." Virtually anything the President does can give rise to impeachment if a majority of Congress thinks he had an improper intent.
The decision not to include an article based on bribery because it has "technical statutory requirements" evidences how malleable these proceedings are. The House didn't want to risk making the charges too precise to satisfy an enumerated standard, so they reverted to an unenumerated standard.
This choice echoes an important debate from the Constitutional Convention. On September 8, 1787–nine days before the conclusion of the convention–George Mason offered a proposal to expand the list of impeachable offenses. He would have added "maladministration," in addition to treason and bribery. Mason reasoned:
Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration."
James Madison disagreed. He said, "So vague a term will be equivalent to a tenure during pleasure of the Senate." Masons's proposal was rejected.
I see little difference between "maladministration" and the allegations here: President Trump engaged in an "abuse of power" based on a "corrupt" intent, where there is no clearly identified offense. Such a capacious standard fails to accord with any notions of fairness for the accused, and risks transforming impeachment into an inescapable feature of our political order.
Jonathan Turley's much-derided, and quite misunderstood testimony, ably captured this concern. He wrote:
In this age of rage, many are appealing for us to simply put the law aside and "just do it" like this is some impulse-buy Nike sneaker. You can certainly do that. You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law. However, the legal definitions and standards that I have addressed in my testimony are the very thing dividing rage from reason. Listening to these calls to dispense with such legal niceties, brings to mind a famous scene with Sir Thomas More in "A Man For All Seasons." In a critical exchange, More is accused by his son-in-law William Roper of putting the law before morality and that More would "give the Devil the benefit of law!" When More asks if Roper would instead "cut a great road through the law to get after the Devil?," Roper proudly declares "Yes, I'd cut down every law in England to do that!" More responds by saying "And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"
Both sides in this controversy have demonized the other to justify any measure in defense much like Roper. Perhaps that is the saddest part of all of this. We have forgotten the common article of faith that binds each of us to each other in our Constitution. However, before we cut down the trees so carefully planted by the Framers, I hope you consider what you will do when the wind blows again . . . perhaps for a Democratic president. Where will you stand then "the laws all being flat?"
The analogy to A Man for All Seasons is apt. For many people, Trump is the embodiment of the devil. Evil incarnate. And resisting him, at all costs, has preoccupied much of the last three years of our polity. Impeaching the President for an "abuse of power" premised on a "corrupt" intent will serve that present purposes. It will make some people feel like they've served a bigger historical purpose, and stopped a corrupt, tyrannical president. But this process–already a foregone conclusion at this point–will trigger consequences far worse during the next battle over improper motives. And at that point, alas, "the laws [will be] flat." We should "give the Devil benefit of law, for [our] own safety's sake."