There Is No Good Case for Impeachment

In the next phase of the impeachment proceedings currently underway against President Donald Trump, the task of the House of Representatives will be to determine what offenses are impeachable and whether the facts, as found by the House Intelligence Committee, constitute such impeachable actions.

This should not be a difficult job. Perhaps we can save Congress some time and, based on what we have seen publicly discussed, make those determinations.

The Constitution provides, in Article II, Section 4, that impeachable offenses are “Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution defines treason as waging war against the United States or giving aid and comfort to the country’s enemies. A few rabid Trump haters have accused him of treason, but offer no evidence to support their assertion.

It’s worth mentioning, too, that “misdemeanors” in the constitutional language does not mean, as it now popularly does, a minor crime such as a traffic ticket. In late 18th-century language, a “misdemeanor” meant a “misdeed,” a wrongful action.

This notion of a “wrongful action,” one that need not actually be a crime, appears to give great latitude to the House. Indeed, one definition offered in 1970 by then-Representative Gerald Ford, when he was seeking to remove Supreme Court Justice William O. Douglas, was that an impeachable offense is anything that a majority of the House of Representatives believes it is, at a particular time in history.

As a matter of fidelity to the Constitution, this cannot be correct. As a practical matter, however, it is exceptionally doubtful the Supreme Court would ever step in to overrule the House’s decision. The Constitution assigns impeachment proceedings to Congress, and while the chief justice presides over a Senate trial of a president on impeachment charges, a majority of the Senate can overrule any rulings the chief justice makes. Judicial review of impeachment proceedings would fundamentally interfere with the separation of powers and is extremely unlikely.

Impeachable Offenses, Properly Defined

Nevertheless, if one looks into the debates on impeachment from the Constitutional Convention, the record is fairly clear that James Madison, in particular, did not want Congress to have complete discretion to remove members of the executive branch at will, because that would fundamentally undermine the separation of powers as well.

The Federalist essays recognize that impeachment will give rise to the triggering of political passions, but the numbers treating impeachment argue that the proceeding should not be undertaken lightly and should only be concerned with fundamental breaches of the duty a president owes to the people.

We should try to read “Treason, Bribery, or other high Crimes and Misdemeanors” in light of this notion, and we should understand that all of these terms are trying to get at the same sort of thing.

Thus, one of the best definitions of impeachable offenses is that offered by the late Rep. Henry Hyde (R-Ill.), a titan of the House, when he rose on December 18, 1998, to initiate the proceedings against President Bill Clinton.

“One authority,” Hyde explained, “said, ‘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.’”

I was the “authority” Hyde was quoting, and Hyde went on to apply his test to President Clinton’s conduct in wrongfully interfering with the private lawsuit for sexual harassment brought against him by Paula Jones.

The Constitution gives the president the duty to “take care” that the laws are faithfully executed, but in the Paula Jones case Clinton perjured himself, tried to get other witnesses similarly to commit perjury, and sought to get other witnesses to conceal evidence. This seemed to many of us to be a deliberate failure to do his constitutional duty, and that was the belief of a majority of the House who brought impeachment charges against the president. Unfortunately, a two-thirds majority of the Senate did not agree, and President Clinton remained in office.

Breach of Duty or Prudent Conduct?

The allegations against President Trump will be framed in a similar manner, and the Democrats have made it clear that they will argue that the president sought to hold up military aid to Ukraine for the purpose of getting Ukrainian officials to serve his personal political interest in investigating interference in the 2016 election on behalf of Hillary Clinton, and current corruption on the part of Hunter Biden, son of Trump’s potential foe in the 2020 presidential election. In other words, the Democrat case is that the president put his own personal political interests ahead of the country’s interest in maintaining support for the Ukraine and helping in its defense against a geopolitical rival of the United States, Russia.

Apparently, this argument has utterly convinced House Speaker Nancy Pelosi (D-Calif.), Rep. Adam Schiff (D-Calif.), and quite possibly a majority of the House Democrats, but the Republicans interpret the facts rather differently.

For President Trump and his defenders, what he did was no breach of duty but was, instead, prudent conduct of foreign affairs—the conduct of which the Constitution places within the discretion of the president. Ukraine, at least with the crew in office before the last Ukrainian election, was one of the most corrupt governments on the planet, and Trump maintains he wanted to make sure that aid flowing to that country would not end up lining the pockets of the kleptocracy that was for so long in power there, or those of the enablers of that kleptocracy. Two of those enablers may have been the Bidens, pere et fils. 

Trump’s personal lawyer, Rudy Giuliani, one of the most successful federal prosecutors in history, made headlines over the weekend by alleging a long history of malfeasance by the Biden family. If what Giuliani said is true, President Trump’s caution in releasing aid to Ukraine and seeking to investigate the Bidens was fundamentally wise and not nefarious.

Collateral Damage in the Making

President Trump ran on a platform of draining the swamp, and if this matter ever gets to trial in the Senate, there is a chance that the disgraceful use of foreign aid funds to line the pockets of American “consultants,” “board members,” or lawyers, or some other forms of facilitator, could be exposed.

Trump has quite properly suggested this system, a mainstay of the deep state, and the revolving doors of government positions, lobbyists, and law offices needs to be changed, and if this impeachment proceeding goes forward this is a fine opportunity to reveal to the public just what is done with foreign aid funds, and who profits from them.

The Bidens are likely to be collateral damage in any such inquiry—as are many other Democrats, and perhaps some Republicans. A deep plunge into this maelstrom of the deep state at a Senate impeachment trial might well fulfill some of President Trump’s campaign promises, but, unfortunately, it is unlikely to materialize in this way.

Once it is understood that the necessary 20 Senate Republicans will never vote to convict the president, and once it is realized that the American people may see the president’s anti-corruption motivation as entirely appropriate, it is likely that the House Democrat leadership will realize that a partisan vote of censure is much less risky than a trial in the Senate.

If, as expected, Inspector General Michael Horowitz’s report and U.S. Attorney John Durham’s criminal investigation reveal severe deep state misconduct in the supposedly scandal-free Obama Administration, the Democrats may realize that a purely partisan impeachment, with virtually no evidentiary basis, will only harm their long-term position.

The sensible tactic would be to abort the impeachment proceedings through a censure vote. But, as the proceedings have shown so far, good sense seems to be in short supply in the House. Unless the deep state wants to further its own demise, however, and unless the Democrat candidates for president want to spend a good deal of the campaign season off the hustings and in a Senate proceeding they will lose, we are probably witnessing the beginning of the end of the Trump impeachment.

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

Photo: Bonnie Jo Mount/The Washington Post via Getty Images

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