What exactly did the framers mean by putting in the Constitution Article II, Section 4? This is the section that reads, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Treason is clearly defined in the Constitution: “making war on the United States or giving aid or comfort to her enemies.” Bribery is equally clear: “disregarding one’s duties to the country in exchange for personal reward.” But “other high Crimes and Misdemeanors” is much murkier. Indeed, at the time the language of the clause was written, “misdemeanors” did not mean a petty crime, it meant, rather, a significantly wrongful action, a misdeed. It appears, then, that impeachment is not necessarily about criminal acts.
The Democrats in power in the current House of Representatives appear to believe that it is cause for impeachment if a President seeks the aid of a foreign power in determining whether a former Vice President and his son were engaged in the impeachable crime of bribery. Their logic seems to be that, because that former Vice President is engaged in the contest for the Presidential nomination by the Democrats in 2020, to seek information on him is to use the current President’s office for personal political purposes, and not the good of the nation. On the other hand, if the President’s motive is to root out corruption in the government—as he claims it is—then Democrats’ justification for impeachment is nonsense. But should that fact stop the House of Representatives?
When Gerald Ford sought to impeach the famously arbitrary Supreme Court Justice William O. Douglas a few decades ago, he pointed out that an impeachable offense was anything the majority of the House of Representatives decided it was. While historians and Constitutional lawyers might disagree with Ford’s ukase, it is highly unlikely that any court would ever grant judicial review of a Congressional impeachment, because it appears to be one of those matters left exclusively to the political process.
Therein lies the rub of impeachment—it is a political, and not a legal proceeding. The Framers were well aware of this difficulty, and in the parts of The Federalist Papers that deal with impeachment this inevitable politicization is noted.
But there was still an attempt to give some guidance on what limitations ought to circumscribe the impeachment power. The history of the debate at the Constitutional Convention, where the clause was drafted, reveals two such limits. One is that the framers chose their language carefully, and rejected language so broad that impeachment proceedings could be brought at the complete discretion of the House. The proposal by George Mason that a President could be removed for “maladministration” was an example of this rejected language.
The other, made much of by the defenders of President Clinton when proceedings were begun against him 21 years ago, was that to allow too-easy impeachment would destroy the independence of the Executive Branch, and thus ruin the Constitution’s delicate scheme of separation of powers and checks and balances. The result of that, of course, would be an all-powerful, abusive, and unchecked legislature. There is some risk that the current Democrat-controlled House of Representatives has become just that, and it is curious indeed that this particular argument, made by the academic defenders of President Clinton, has not been made by those same professors when the target is Donald Trump.
Nevertheless, there is merit to the separation of powers argument. Since the American people themselves select their President, too-easy impeachment actually weakens popular sovereignty. According to this logic, unless there is a very serious “high crime or misdemeanor” Congress should not act.
Here again, the defenders of President Clinton had a point. He was eventually impeached for wrongful interference with the sexual harassment lawsuit brought against him by Paula Jones, but his defenders claimed that his offense in the final analysis was simply “lying about sex.” As the historian Arthur Schlesinger, Jr., famously put it at the time, this was no big deal because “gentlemen always lie about their sex lives.” Schlesinger’s comment was both inaccurate, because traditionally gentlemen don’t lie at all, and irrelevant, because Bill Clinton was no gentleman. But the point remains that impeachment should not be undertaken for trivial reasons. Everyone agreed, during the Clinton impeachment, that to seek to remove a President because he had gotten a traffic ticket would be too much, though the commission of murder or rape might be enough.
Where, then, to draw the line? I was one of 19 scholars invited to Washington in November 1998 to advise Congress during Clinton’s impeachment proceeding on what the Framers meant by “high Crimes and Misdemeanors.” The Republicans called nine of us, the Democrats another nine, and there was one allegedly neutral scholar who sided with the Democrats, as it turned out.
Those of us who believed that Clinton had committed impeachable offenses took the position that what he had done was not simply lying about sex. Rather, Clinton had obstructed justice by tampering with evidence in a civil trial against him, by suborning perjury on the part of witnesses in that trial, and by lying himself before a grand jury examining his conduct. Our argument was that the President took an oath to faithfully execute the law, and he betrayed that oath in order to obtain a favorable decision in a judicial proceeding in which he had an interest. That meant he had done something that ought to result in his removal from office. We suggested, in other words, that such a person could not be trusted to carry out the duties of the presidency.
The great Illinois congressman Henry Hyde, when he rose to move forward President Clinton’s impeachment on this theory, quoted part of my testimony when he said that, “Impeachable offenses are those which demonstrate a fundamental betrayal of public trust. They suggest the federal official has deliberately failed in his duty to uphold the Constitution and laws he was sworn to enforce.” Perjury, obstruction of justice, and witness tampering to taint the result of a trial in your favor seemed to me to meet that test.
However, the Democrats and the scholars the Democrats called upon disagreed. Cass Sunstein, in particular, minimized what Clinton had done to some kind of personal foible, similar to a traffic ticket. To impeach for anything less than an abuse of strictly presidential powers, Sunstein argued, would be improper interference with separation of powers and would improperly deprive the people of their electoral choice.
The Republicans controlled the House of Representatives in early 1999 when the matter was put to a vote and garnered a majority to impeach Clinton on obstruction of justice and perjury charges. Not one Democrat voted with the Republicans. In the Senate, while 50 of the 100 Senators voted to remove Clinton on one of the charges brought against him, this was not enough to meet the requirement that two-thirds of the Senate must vote to convict.
Following the failure to convict Bill Clinton, he rose dramatically in popularity, and the consensus of pundits was the Republicans had overreached in trying to hound him from office through the impeachment process. Still, in 2000, the Republican candidate George W. Bush managed to defeat Clinton’s Vice President, Al Gore, who found himself having to defend Clinton’s tawdry and illegal behavior.
It is highly unlikely that a Senate composed of a majority of Senators from President Trump’s party will vote by the required two-thirds majority to remove him from office. However, it is quite possible the Democrats can tarnish him enough to reduce his chances of reelection in 2020, and this must be their actual political aim.
How then does a President fight this? What is the political counter-move to combat what is obviously overreaching by the Democrats in the House? We’ve received a splendid answer to this question in an Oct. 8 letter to Congress from the President’s White House Counsel, Pat A. Cipollone.
Mincing no words, Cipollone indicated that the White House would not cooperate with the myriad letters and subpoenas seeking information to aid the Democrats’ impeachment inquiries, on the grounds that this particular impeachment proceeding was clearly unconstitutional. This was because, unlike the two most recent presidential impeachment undertakings brought against Richard Nixon and Bill Clinton, the investigation was not preceded by a vote to begin the inquiry by the entire House.
He further pointed out that, in what he declared to be further breaches of the Constitution, the President had not been given the right to cross-examine witnesses, nor had the Republican members of the House been granted the same powers of subpoena the Democrat majority enjoyed. “Never before in our history has the House of Representatives…taken the American people down the dangerous path you seem determined to pursue,” Cipollone wrote. “Put simply, you seek to overturn the results of the 2016 election and deprive the American people of the President they have freely chosen.”
Cipollone is undeniably correct, and it’s an attractive strategy for The White House to insist on basic due process rights in an impeachment proceeding. However, in reality the Constitution arguably guarantees no such rights in a purely political undertaking, and the Democrat-controlled House certainly has the power to ignore the White House’s requests and to treat the President’s refusal to cooperate in his own political lynching as obstruction of justice. More alarming still, there simply are no explicitly detailed procedures provided for an impeachment undertaking by the House.
Speaker Pelosi was reluctant to put the impeachment inquiry to a vote because it puts the 30 Democrats who had won their seats in districts President Trump carried in 2016 in an untenable position. By the time you read this you’ll probably know how this first skirmish in the great impeachment struggle of 2019 came out. The only thing that can be said with any certainty is that there are no clear Constitutional rules for the naked exercise of political power that is the impeachment process. The final judgment on whether an impeachment of Trump is just or unjust will ultimately be made by the American people in the Presidential Election of 2020.