The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The first of the two articles of impeachment on which Donald Trump is about to be tried by the Senate focuses on "abuse of power." In my view, Trump's scheme to withhold aid from Ukraine in order to pressure that country's government into investigating a political adversary is also a violation of the Constitution and criminal law. An abuse of power can also be an illegal and criminal act. But the article does not require proof of illegality for conviction.
Despite claims to the contrary by newly appointed Trump defense lawyer Alan Dershowitz, there is overwhelming evidence that the original meaning of the Impeachment Clause permits impeachment and removal for abuses of power that are not criminal or otherwise illegal. That is actually one of those points on which there is a fairly broad consensus among constitutional law scholars across the political spectrum. For good summaries of the relevant evidence, see recent analyses by Gene Healy of the Cato Institute, and prominent conservative legal scholar Michael Stokes Paulsen (here, here, and here).
But critics of the abuse of power standard nonetheless contend it should be rejected. They fear it would create a slippery slope under which presidents can be impeached and removed for frivolous or vague reasons. Dershowitz, for example, worries that abuse of power is a "vague, open-ended" criterion that could lead to a "slippery slope."
Unlike Dershowitz, my co-blogger Josh Blackman admits that "Congress can convict a president for conduct that is not criminal." But he too fears that impeachment for abuse of power depends on "subjective judgment" and therefore "the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity."
On this view, almost any president can potentially be accused of "abuse of power" by political adversaries in Congress. And then he might be impeached and removed for relatively trivial misconduct, or even just because of partisan animosity or policy differences with Congress.
I. Why the Slippery Slope Argument Against Impeachment is Overblown.
Such concerns are to some degree understandable. Every president has partisan adversaries who who would be happy to "get him" if they can. Nonetheless, slippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.
The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president's own party vote to convict him. They are highly unlikely to do so for frivolous reasons. Michael Paulsen expounds on this and some other constraints on abusive impeachment in greater detail here.
We might still worry that members of a House controlled by the party opposed to the President will impeach for frivolous reasons in order to do him political damage, even if he is ultimately acquitted. But this overlooks the reality that a frivolous impeachment can backfire on the party that does it. The impeachment of Bill Clinton notoriously backfired on the Republicans because most of the public decided that the charges against Clinton weren't serious enough to justify removing a president.
Of course, it's possible that skilled partisans will find an impeachment charge that is simultaneously frivolous yet also appealing to swing voters. But that risk is endemic to political life, and is not unique to impeachment. In a world where voters are often ignorant and biased, there is no way to prevent politicians from sometimes successfully damaging opponents' reputations with dubious charges.
Some might fear that a hostile House can tie up the president with impeachment investigations even if there is no chance of conviction (and perhaps even if the House never actually votes to impeach). But a hostile Congress can already harass administrations with questionable investigations, even if impeachment is not the purpose of the inquiry in question. Congressional Republicans effectively proved that with their two-year long Benghazi investigation, which was far longer and more costly than the Mueller and Ukraine investigations of Trump, despite the fact that impeachment was never a serious possibility in the Benghazi case.
Moreover, to the extent that frivolous impeachment is a genuine concern, the problem cannot be "solved" by limiting impeachment to criminal offenses. The scope of federal and state criminal law has grown so great that almost anyone can be charged with some crime if investigators work hard enough to find one. If a president cannot be charged with frivolous supposed abuses of power, he can still be accused of committing some petty crime. And most adult Americans probably have in fact committed one at some point or other in their lives.
Perhaps this possibility is precluded by the fact that the text of the Impeachment Clause is limited to "high Crimes and Misdemeanors" (emphasis added). But the difference between a "high" crime and a minor one is at least as subjective as that between an abuse of power and ordinary, supposedly non-abusive, policymaking. Those of us who lived through the Clinton impeachment remember how Republicans claimed that Clinton's offenses were grave affronts to the republic, while Democrats argued that they were minor, or at least nowhere near serious enough to justify impeachment. Whether a crime is "high" enough to justify impeachment is at least as subjective as the abuse of power standard is. If the word "high" does serve as an effective safeguard, it can do so with abuses of power no less than crimes, by limiting impeachment to serious abuses, as opposed to petty, insignificant ones.
Ultimately, the main safeguard against slippery slopes here is the combination of the need for a two-thirds majority in the Senate for removal and the danger of political backlash. It may not be a perfect safeguard, but it is very formidable nonetheless.
II. Barring Impeachment for Abuse of Power Creates Slippery Slope Risks of its Own.
Limiting impeachment to specific criminal or otherwise illegal conduct creates a slippery slope risk of its own. It creates a risk that the president can avoid impeachment even for grave abuses. Trump defense lawyer Alan Dershowitz gave a great example of such when he admitted that, under his approach, a president could not be impeached for the following conduct:
"Assume Putin decides to 'retake' Alaska, the way he 'retook' Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to 'its' original territory… That would be terrible, but would it be impeachable? Not under the text of the Constitution."
If impeachment is strictly limited to statutory crimes and misdemeanors, a president could also avoid impeachment for gross violations of the Constitution that do not amount to crimes. For example, he could order his subordinates to discriminate on the basis of race, ethnicity, or religion, to violate freedom of speech, and so on. Such presidential misconduct is illegal, but generally not a crime.
Over the last several decades, presidents have all too often engaged in serious violations of the Constitution and grave abuses of power and gotten away with it. President Obama launched two wars without constitutionally congressional authorization—as serious a breach of the constitutional separation of powers as any. He got away with it. Donald Trump has gotten away with his brutal—and illegal—family separation policy, and with the massive cruelty of his travel ban motivated by religious bigotry. Even if you agree with the Supreme Court's dubious ruling that the judiciary was required to defer to the president on the latter policy, it was still a gross abuse of power. Each of these examples was actually a far more severe abuse of power than the Ukraine case, especially if judged by the scale of the harm caused to innocent people.
Presidents have strong incentives to abuse their power and violate laws any time it seems likely to promote their partisan and electoral interests, or advance their policy agendas. Impeachment for abuse of power can provide a counterweight, albeit perhaps a fairly modest one.
III. Which Danger is Greater?
Let us assume the worst: if impeachment for abuse of power is allowed, occasionally a "good" president will get the axe even if he or she didn't really deserve it. That strikes me as a price well-worth paying for putting a tighter leash on presidents who genuinely abuse their power.
In criminal cases, there is good reason to avoid conviction unless the charge against the accused is an offense clearly delineated by law, and guilt has been proven beyond a reasonable doubt. The reason why is that the defendant stands to lose her liberty or property—or even her life. By contrast, the risk facing an impeached president is removal from a position of enormous power.
Unlike unjust deprivation of life, liberty, or property, removal from power doesn't violate anyone's human rights. When real human rights are at stake, it may make sense to allow ten guilty people to go free, in order to save even one innocent from conviction. When it comes to positions of power, almost the opposite is true: Removing ten "normal" politicians is more than justified if that is the only way to get rid of one who engages in grave abuses of power. It's not as if we suffer from a shortage of ambitious politicians who would be happy to take the places of those who get removed.
Imprecise delineation of standards is also far less problematic when it comes to removal from power than criminal punishment. If criminal laws are vague, people will fear to use their liberty, lest they accidentally run afoul of the law. Such a "chilling effect" on liberty can be deeply problematic. If standards for impeachment are vague, the president might shy away from exercises of power that might be abuses, even if it is not entirely clear whether they really are. Such a chilling effect on power is more a feature than a bug, especially in a context where numerous other incentives incline presidents towards overreaching.
But perhaps the above underrates the harm caused by removing a "good" president. Such removal, it is said, is tantamount to "reversing" the outcome of an election. Not so. A true reversal of an election would bring to power the president's opponents. Thus, Trump's election would be reversed by impeachment if his removal would bring Hillary Clinton to power. In reality, of course, impeachment elevates the president's own vice president, who comes from the same party, and usually has a similar policy agenda. Elevating Mike Pence to the presidency may or may not be a good idea. But no one is likely to confuse him with Hillary Clinton—and not just because of the difference in gender. It is possible to imagine scenarios where the president and VP both get impeached and removed, thereby elevating the Speaker of the House of Representatives (who will often belong to the opposing party).
Such scenarios are great fodder for political thriller novels. But if it is extremely difficult to get a two-thirds majority in the Senate to remove a president in favor of a successor of the same party, it is virtually impossible to do so in order to elevate a political opponent such as House Speaker Nancy Pelosi. Michael Stokes Paulsen offers some additional responses to the "overturning elections" argument here.
Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified. But the threat of impeachment for abuse of power can at least help at the margin.
Let presidents—even "good" ones—lose more sleep over the possibility of impeachment. The rest of us will then be able to sleep a little easier, knowing we are that much more secure against abuses of government power.