Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

Posted in: Constitutional Law

Act I, Scene 1

June 2021, London. Joe Biden, Vladimir Putin, and two translators take their seats in an ornate meeting room.

PUTIN: Mr. President, it is such a pleasure to be back at the G-8. Congratulations again on your tremendous election victory. Such an unprecedented margin in your, what do you call it… (in English) “Electoral University”? It was truly impressive.

BIDEN: I appreciate your saying so, Mr. Pres—or what is it now? Supreme Leader? Mr. Supreme Leader. Well, it was a solid win, but you did what you could to keep it close, didn’t you?

PUTIN (smiles): You have always been a man of supreme humor. Mr. President. I look forward to much more of this jocularity. Your predecessor was, well, not so charming. In fact, rather tiresome. Always trying so hard to flatter me. I believe he meant to improve relations between our countries. But he did not deliver results. This is the unfortunate truth. I was not sorry to see him replaced by your Election School.

BIDEN: Well, I wasn’t sorry to see him replaced, either. So, we have at least one thing in common. Look, you can call me Joe. I want the communication between us to be frank and honest. We don’t have much time before the farewell party for Angela, so I’ll be blunt. You’re an aggressor all over the world. You’re messing with our interests. And as a sovereign nation, we can’t tolerate the election interference. So those new sanctions I put in aren’t going anywhere. But if you behave yourself for the next four years, we can talk about it again.

PUTIN (looking hurt): Mr…. Joe. That is disappointing. These sanctions are harmful to both of our countries. I had hoped we could make progress toward resolving our differences more quickly. In fact, I was sure of it. (He places a thick manila folder on the table between them.)

BIDEN: OK, the suspense is killing me. What’s in the folder, Vlad?

PUTIN: Oh, nothing really. It is just our file –a research file, on your predecessor, Mr. Trump. Or rather, some highlights from it. It is a very big file, too big for me to carry. Too big, perhaps, to fit in this room. (Smiles) It goes all the way back to 1986, I believe. I thought that, since we no longer have any use for these materials ourselves, they might be of some… historical interest to your country.

BIDEN: Well, that is interesting. I’m sure your archives could clear up some interesting questions. Historical questions, as you say. Mind if I take a look?

PUTIN: Not at all.

BIDEN: (Thumbing through folder, pausing to look at some full-page photographs). Eew. (Grimaces.) Yuck. (Hands folder back to Putin.) That’s some pretty hot stuff. But, look, I’m not interested.

PUTIN: Are you sure? These materials could prove useful in “setting the record straight” as you Americans say. In the event Mr. Trump makes a very bad choice to contest the next election. I believe he is still eligible, is he not?

BIDEN: I see you’ve studied our term-limit rules carefully. Yes, he can run, but I think he will have his hands full with the Southern District of New York.

PUTIN: (Momentarily puzzled) Ah, yes, I am so happy to hear that. A reliable prosecutor-general can be a solution to many problems.

BIDEN: Ha. As my Secretary of Defense, Ms. Clinton, can tell you, they’re not always so reliable in our country as in yours. (He rises.) Well, it’s been nice talking to you, Vlad. I’ll think about those sanctions. (Pause.) In the meantime, maybe there is something you can do for me. Let’s call it a favor.

PUTIN: Of course. (He stands.)

BIDEN: If you have some similar files on other members of Mr. Trump’s party…. You know, senators, congressmen, media figures, financial contributors, et cetera. People who supported him and are still very active in public life. People who may have been compromised in some way. If files like that somehow became public, that is the sort of thing that could help the American people make informed decisions in the future.

PUTIN: Joe, I think we understand each other very well. It is possible that such files exist. In fact, I am certain of it. You can expect to see some evidence of this very soon.

The two men smile and shake hands. After pausing to pocket their respective translators’ notes, they invite the press into the room for a photo opportunity.

Does this scenario sound far-fetched? Perhaps a Biden presidency looks less-than-plausible after the Democratic frontrunner stumbled to a fourth-place finish in the Iowa caucuses. It may also be because we would expect a higher ethical standard from a President Biden, or any other member of his party who may fill that office. After all, it would be wrong to accept the assistance offered by Mr. Putin, let alone to request any. Any president with a moral compass should be able to figure that out. And a party that has been railing for four years against foreign election interference should be particularly careful not to expose itself to charges of hypocrisy on this point.

But if it did happen? Could a future Democratic president condition a discretionary foreign policy decision on a foreign power’s assistance in trashing his domestic political opposition? Based on the legal arguments advanced by Donald Trump’s defense team and accepted by the GOP Senate majority, the answer is a thundering YES. It may be unwise, improper, or inappropriate. But it would be perfectly legal, in their view—and certainly not impeachable.

The Presidency, Unbound

According to Trump’s defense counsel, Prof. Alan Dershowitz, nothing a president does to boost his own political fortunes, no matter how underhanded or reprehensible, can be grounds for his removal, as long as the president does not commit a statutory crime in the process. In a book published in 2018, Dershowitz argued that a president would not be subject to impeachment even if he blithely allowed Vladimir Putin to seize Alaska. Compared to that bit of legal gymnastics, defending Trump on Ukraine should have been a walk in the park. But Dershowitz still managed to take his argument to the last frontier of legal hyperspace and back. “If a president does something which he believes will help him get elected in the public interest,” Dershowitz told the Senate, “that cannot be the kind of quid pro quo that results in impeachment.”

This astonishing argument, and others nearly as audacious, were enough to persuade every member of the GOP majority in the Senate to acquit President Trump, with the notable exception of Mitt Romney (R-UT). (“I had Professor Dershowitz for criminal law in law school,” Sen. Romney told an interviewer, “and he was known to occasionally take his argument to its illogical conclusion.”) Several key Republican senators accepted that the House impeachment managers had proved their case that the president withheld aid from Ukraine to coerce that country to provide (or manufacture) damaging information against his Democratic rival, former Vice-President Biden. Some even acknowledged that was “inappropriate” for Trump to do so, but (in the words of Sen. Lamar Alexander) claimed that “it does not meet the U.S. Constitution’s high bar for an impeachable offense.” Sen. Marco Rubio (R-FL) went even further, concluding that even if Trump’s actions “meet a standard of impeachment” that “does not mean it is in the best interest of the country to remove a President from office.”

High Crimes, High Bar

Whether the bar is high or low it is not set by the text of the Constitution. It simply provides for the president’s impeachment and removal for “Treason, Bribery, or other High Crimes and Misdemeanors.” The precise height of the bar is set when the House and Senate interpret that language in the course of an actual impeachment. Like any constitutional text, in a case of first impression, we can interpret it by studying the journals of the Constitutional Convention and the ratification debates for clues about what the Founders meant. In this case, those clues are pretty definitive. Prof. Dershowitz notwithstanding, scholars of the Constitution have been nearly unanimous in concluding that impeachment does not require a statutory crime, that the phrase “High Crimes and Misdemeanors” refers to offenses against the state and the public interest, and that abuse of power is certainly one of those. As Sen. Romney neatly put it in his speech before the Senate vote, “To maintain that the lack of a codified and comprehensive list of all the outrageous acts that a president might conceivably commit renders Congress powerless to remove such a president defies reason.” And of all the potential abuses that the Founders feared, foreign corruption of the presidential election process ranked near the top.

In designing the impeachment power, the Founders made several critical decisions. First, they gave it to Congress, a political body, rather than the existing judiciary or a specially constituted court. This guaranteed that despite the legal trappings, an impeachment trial would ultimately have a political dimension. As Alexander Hamilton put it in Federalist 65, impeachable offenses “may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself”. He argued that Senate, rather than a court, was the best place to try such offenses because it was “designed as a method of NATIONAL INQUEST into the conduct of public men.” In other words, the use of politicians to judge political offenses was a feature, not a bug.

The Founders’ second set of choices was to allow the House to approve impeachments by a simple majority, while requiring a two-thirds majority for conviction by the Senate. In other words, they made impeachment easy (perhaps too easy) and made conviction hard (perhaps too hard). Those mathematical facts have shaped the outcome of every impeachment since.

The Common Law of Impeachments

At a certain point in our history, the scholarly debate about the Founders’ intentions becomes less important than what the Congress actually does with the impeachment power in practice—what Trump’s counsel Kenneth Starr called “the common law of impeachments”. And the truth is that there is very little of it, despite Mr. Starr’s best efforts to create more. There have only been 19 impeachments in American history. Of those, 14 were against judges, resulting in 3 resignations and 8 convictions, most involving straightforward bribery. Otherwise, the House has only approved articles of impeachment against one senator, one cabinet member, and three presidents (Andrew Johnson, Bill Clinton, and now Donald Trump)—none of which has resulted in a conviction by the Senate. Even when supplemented with the case of Richard Nixon, who resigned while the impeachment train was still gathering steam, this paucity of examples leaves large gaps open for interpretation.

As Trump’s case demonstrated, relevant analogies were in short supply. There was little in Trump’s conduct toward Ukraine that could be compared to the now-obscure disputes over the Tenure of Office Act that led to Johnson’s impeachment in the 1860s, or to Bill Clinton’s sexual escapades that so captivated Mr. Starr in the 1990s. Only Nixon’s misdeeds in Watergate seemed remotely comparable—they were all connected in some way to his 1972 re-election campaign and yielded an abuse of power charge approved by the House Judiciary Committee. But even Nixon did not enlist the backing of foreign countries in the Watergate affair. (His initial election in 1968 was another story, one that did not emerge until years later.)

Presented prior to 2016 as a hypothetical with no partisan labels attached, the Ukraine affair would have been considered a quintessentially impeachable offense by both parties. As Sen. Romney concluded, “The president’s purpose was personal and political. Accordingly, the president is guilty of an appalling abuse of public trust….[I]t was a flagrant assault on our electoral rights, our national security and our fundamental values. Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one’s oath of office that I can imagine.”

This would have been the nearly unanimous view of the country just a few short years ago. But the Senate has now reached the opposite conclusion. The theory of constitutional scholars must now yield to the actual practice of impeachments by the House and Senate. So, where does that leave us? It is easy to reach some despairing conclusions.

1. President Trump will be emboldened to commit further abuses of power

Explaining her intent to acquit Trump, Sen. Susan Collins (R-ME) expressed her belief that “the president has learned from this case. The president has been impeached—that’s a pretty big lesson . . . I believe that he will be much more cautious in the future.” Almost immediately, Trump set her straight. Asked about Collins’ remarks, and even though votes had not yet been cast, Trump insisted that he had done nothing wrong, and reiterated that his conversation with Ukraine’s president was a “perfect call”. Faced with this response, Sen. Collins did not change her vote, but revised her view. Asked if Trump had indeed learned a lesson, Collins replied, “Well, I may not be correct on that. It’s more aspirational on my part.”

A painful bee sting like impeachment might keep another president from going for another dip in the honey, if only for reasons of self-preservation. But President Trump is not like that. Unlike President Clinton, he did not apologize for triggering the impeachment ordeal. The day after his acquittal, the president insisted again that he had done nothing wrong. Instead, he lashed out at his opponents, calling them “evil”, “corrupt”, “vicious”, “mean” and “horrible” in the course of a rambling address to a crowd assembled in the East Room of the White House. Rumors of a new “enemies list” and a promised “payback time” were quickly succeeded by the White House press secretary’s open call for “retribution”. Already disposed to push his powers to their limits against his political adversaries, Trump has now been told by the GOP Senate that the concept of an abuse of power does not exist. If Trump learns any lesson from his impeachment, that will be it.

2. Future presidents will be less constrained by fear of impeachment

Beyond its effect on Trump, the Senate’s verdict will move the goalposts for future presidents—perhaps right out of the stadium. The Andrew Johnson and Bill Clinton impeachments are now generally remembered as moments of congressional overreach, although neither case was entirely unprovoked. Nixon’s ouster over Watergate is usually treated as a morality play with a just though traumatic ending. But all three of these cases served in some way to constrain presidential behavior.

While Johnson was narrowly acquitted, no president after him dared to express contempt for Congress in quite such crude or inflammatory terms (at least until Trump). Bill Clinton’s acquittal did not lead to an epidemic of illicit Oval Office liaisons, so far as we know. Rather, it probably marked the end, rather than the beginning, of presidential impunity for extramarital affairs conducted while in office. Future presidents can be expected to strenuously avoid testifying under oath, but few will conclude from Clinton’s ordeal that they have a license to commit perjury. And Nixon’s downfall spawned a web of laws (such as the Ethics in Government Act, the Presidential Records Act, the War Powers Act) and norms (e.g., releasing tax returns, avoiding interference with law enforcement) that constrained executive misdeeds.

Trump’s impeachment and acquittal will have no such salutary effect. Led by the estimable Rep. Adam Schiff, the House managers presented a clear and unanswerable case of abuse of power, and the Senate shrugged. Like the putative President Biden meeting his Russian counterpart, a future president may well conclude that he or she has plenty room to elicit foreign assistance in subtle ways, if Trump was caught red-handed and still survived in office with votes to spare.

Even if a president is not tempted to replicate Trump’s use of foreign governments as “the most super of Super PACs” (in Rep. Schiff’s phrase), the defeat of the abuse of power article will linger as a radioactive element in the American body politic for years to come. Future presidents charged with abuse of power will be able to ask, “Is what I did worse than Trump?” The answer, in almost all cases, will be no. The scope for presidential wrongdoing will increase accordingly.

The defeat of the second article of impeachment (obstruction of Congress) will have equally serious effects. By acquitting Trump of this charge, and refusing to call witnesses of its own, the Senate acquiesced in a complete presidential stonewall of the Ukraine inquiry. In explaining their vote, Republican senators endorsed arguments that the House should have first exhausted all judicial remedies to enforce its subpoenas. The effect is to make Congress’ formidable investigative powers under Art. I of the Constitution entirely dependent on the intermittent attention and leisurely pace of Art. III courts. Stringing out this process indefinitely will be child’s play for future presidential lawyers.

The next time a president of either party is charged with serious wrongdoing, the Congress will find itself hamstrung by these precedents. It will either have to find an even more definitive case of impeachable conduct—and somehow prove that case without investigative tools that Congress previously took for granted—or it will have to reverse itself and backtrack on the precedents that secured Trump’s acquittal, opening it to charges of partisanship and hypocrisy. Neither scenario bodes well for Congress’ future as a counterweight to presidential power.

3. The impeachment power lives, but the impeachment remedy is (nearly) gone

Trump’s acquittal revealed a truth that had been hiding in plain sight: it is almost impossible to remove a president, even one who has committed a serious offense against the Republic.

Though no president has ever been directly removed through impeachment, it has always been assumed that sufficiently egregious presidential conduct would make it happen. The Watergate experience supported this assumption, since the proximate cause of Nixon’s resignation was the crumbling of his support among senators of his own party under the weight of public opinion.

It was also assumed that the solemn impeachment trial of a president, with the Chief Justice presiding and senators under a special oath to render “impartial justice”, would at least blunt the edge of partisanship. That assumption was tested in President Clinton’s case, when his entire party in the Senate voted for acquittal. But it survived thanks to the relative collegiality of those Senate proceedings, and the fact that several Republicans also found the case against Clinton to be weak.

After Trump’s acquittal, these assumptions no longer apply. Arguments about evidence, historical standards, and constitutional precedents are out the window. Now, words mean little and only three numbers matter: 218, 34 and 51.

Two hundred eighteen is the number of House members who must vote to impeach a president. Considering how many times a president has confronted a House under opposition control, serious presidential impeachment efforts have been remarkably rare (4 times in 230 years). But they are growing more frequent (3 times in the last 50 years). Resigned all along to likely acquittal in the Senate, Democrats have spoken of their dogged duty to the Constitution, but also claimed that impeachment itself would forever stain Trump’s presidential legacy, as though that were an end in itself. The President’s lawyers in turn claimed that the House’s “partisan” action would inspire a string of future tit-for-tat impeachments. Whether this constituted any kind of a defense or not, it could become a self-fulfilling prophecy. Although Rep. Schiff and the House impeachment managers gamely—and even valiantly—tried to persuade the Senate of Trump’s guilt, this may not always be the case. The House of Representatives may abandon the idea of actually removing the president, and could instead simply use impeachment as an enhanced form of censure. In such a world, impeachment could become more routine as political practice, but less effective as a constitutional remedy.

Thirty-four is the number of senators who can block a conviction. Since 1965, neither major political party has held fewer than 34 seats in the Senate. Essentially, this means that no president who can command the unified support of his party need fear actual conviction and removal. With partisan lines hardening, presidents will increasingly expect, and receive, such support. Dissenters may not find their heads literally on a pike, but they can certainly expect abuse, calumny, and “enormous consequences” as Sen. Romney does.

Fifty-one is the number of senators required to control the trial process. If Trump’s opponents could have dictated the scope, length and pace of the trial, they could have imposed pressure on some of the President’s less enthusiastic supporters. A Watergate-like outcome—in which wavering senators convinced the president to resign–would have been at least plausible. Even in the minority, the Democrats (joined by Sens. Romney and Collins) fell just two votes short of forcing witness testimony and a longer trial. So, a future president must still fear an impeachment trial controlled by the opposition, even if the math suggests a conviction is impossible.

Accordingly, impeachment as a constitutional remedy is not dead. But it is on life support, with a faint heartbeat and attended by an indifferent medical staff. When the next great crisis comes, it may never get off the table.

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