Although I had planned to write on another subject this week, recent and fast-moving events warrant attention to the topic of impeachment, a process more and more commentators (and some legislators on Capitol Hill) have been mentioning. To be sure, we are probably far away from any serious impeachment movement if one even materializes at all, but now is precisely the time to understand the ground rules—well before the rules get applied to any particular set of actual facts. There are many misconceptions—among lawyers and laypersons alike—about basic aspects of the Constitution’s provisions for impeachment of federal executive and judicial officers. So—without taking any position on where the facts in the present series of controversies may end up leading—I offer a few observations that might help guide discussion in helpful directions.
Observation #1: Impeachable Conduct Needn’t Be Criminal in the Ordinary Sense
Many people embrace the myth that the Constitution’s impeachment threshold—specified in Article II—of “Treason, Bribery or other high Crimes and Misdemeanors” refers only to matters that would be considered criminally indictable in a federal or state court. This intuition is understandable given that most often the words “crimes” and “misdemeanors” denote technical penal code violations. But quick reference to history and common sense confirms that the constitutional phrase “high Crimes and Misdemeanors” is intended to cover something more broad and less legalistic. The impeachment of federal judges in the early 19th century for inability to perform job duties on account of senility or habitual drunkenness, as well as the extensive discussions on the relevance of the criminal law to impeachment undertaken in the Andrew Johnson impeachment proceedings, strongly refute the idea that conduct need violate some criminal statute in order to support impeachment and conviction. Instead, non-criminal conduct that demonstrates a national official to be incapable of discharging (or unwilling to faithfully discharge) his/her public trust will support removal.
And this has to be the case. Imagine a president who simply ran off on vacation for months at a time, even (or especially) during times of national crisis, phoning in once a week for messages. Even though such irresponsible conduct runs afoul of no criminal statute, could a sensible Constitution (and ours is nothing if not sensible) bind the country to four years of such (non)rule? (Section 4 of the 25th Amendment deals with certain kinds of presidential incapacity and thus might overlap with the Constitution’s impeachment provisions in certain instances, but the impeachment process is very different from that laid out in the 25th Amendment, and the range of permissible reasons for impeachment is much wider.)
So if impeachable offenses needn’t be things for which someone could go to jail, precisely how do we know what suffices to justify impeachment? We can start by going back to the constitutional phrase “Treason, Bribery or other high Crimes and Misdemeanors.” Notice that the Constitution here refers to “high” crimes and misdemeanors, not just ordinary misdeeds. What does “high” mean in this setting? Again, the text of the Constitution is instructive in its specification of two “other” high crimes and misdemeanors—namely, treason and bribery. That the Constitution lists these two grave offenses as its only examples of “high” misconduct suggests that “high” really does mean serious indeed. So whether or not conduct has to be similar in kind to treason and bribery to be impeachable, it—as a matter of constitutional text—ought to similar in height, or gravity. Thus, although noncriminal misconduct can render a president impeachable, it must be high non-criminal misdeeds.
Apart from the textual inferences described above, the structure and history of the Constitution (and of the state constitutions enacted between 1776 and 1787) suggest that quintessential impeachable misdeeds are those that seriously corrupt or subvert the process of government itself and the country’s faith in the fundamental integrity of its leadership. Treason and bribery have this corrosive effect. So would murder or rape, by demonstrating utter contempt for the most deeply held American values and beliefs. The ultimate question for presidential impeachment—both as a legal and as a political matter—is whether the offense is the kind of high misconduct that unfits a person to serve in the White House even though s/he was duly elected.
Observation #2: Presidential Participation in Pending Investigations Isn’t Inherently Wrong—Let Alone “high” Misconduct—But It Can Be, Depending on Motivation
How do the current allegations against President Trump—that he asked FBI Director Comey to end the Flynn/Russia investigation and then fired him for not complying—measure up to the standard? Most analysts think (and I agree) it would be hard to assert—let alone prove—a case of criminal obstruction of justice against President Trump under the federal statutes. But, as I suggested above, that is really not dispositive of the constitutional “high Crimes and Misdemeanors question.” As to that constitutional matter, I think a great deal depends on what the president’s motives were or are understood to be, and how those motives may undermine his credibility to serve in the eyes of the American public.
For starters, understand that the president has the authority under the Constitution—assuming his motive is otherwise permissible—to start, direct, accelerate, dial down and terminate all federal criminal investigations. Just as he is the prosecutor-in-chief, the declassifier-in-chief and the pardoner-in-chief, so too he is the investigator-in-chief. There is a lot of talk these days about the “independence” of the FBI. But such independence takes the form of (relatively recent) tradition, not law. Although it might be wise to follow the tradition in most circumstances—and failure to do so can make a president unfit in the eyes of the American public—it is not per se wrong, constitutionally speaking, for a president to direct an FBI head to end an investigation.
For example, if the investigation into Hillary Clinton’s careless email practices were ongoing when President Trump took office, would anyone think that President Trump would have committed a high misdeed by directing Mr. Comey to end such investigation, so that the country could move on and begin to heal its divisions? I think not. So there is no absolute ban on presidential involvement in federal investigations as a general matter.
What is key, then, in the Trump-Comey interaction, is why President Trump might have asked Mr. Comey to ease up on Mr. Flynn, and how Americans feel about those motives. If the president’s primary motivation was his belief that Mr. Flynn was innocent and that consumption of additional resources would be wasteful, that is one thing. If it was President Trump’s sense that Mr. Flynn, while perhaps guilty, had suffered enough, that is another. If it was based on the personal friendship President Trump had with Mr. Flynn, that is more worrisome still. And if it was because of President Trump’s concern that continued investigation might suggest criminal or other wrongdoing by the president himself, that is yet another. How inappropriate it was for President Trump to get involved in the investigation (assuming he did get involved) depends in large part on the reason he was getting involved. And—importantly—the reason most Americans, upon learning the facts, believe he was getting involved. And how they feel about that reason. Because of all this, getting far deeper into the factual detail—if and when the full account is ever publically available—will be crucial.
Observation # 3: Not All High Crimes and Misdemeanors Must Lead to Impeachment
As many of us argued during the Bill Clinton impeachment episode, not all conduct that constitutes “high Crimes and Misdemeanors” must be pursued by the House and the Senate. Some people speak in terms of the public’s and Congress’s “obligation” to impeach, and “duty” to remove; but the Constitution does not require any action. Once again, the text of the Constitution—this time Article I—is instructive: “the House . . . shall have the sole Power of Impeachment” and”[t]he Senate shall have the sole Power to try all Impeachments” (emphasis added). Thus, the Constitution speaks only of power, not of duty. Other congressional powers conferred in the Constitution—such as the power to regulate interstate commerce, to borrow money, to create lower federal courts, and so forth—are all understood to be discretionary; there is no textual or historical reason to think that the impeachment power alone does not include such discretion.
All of this leads us to ask: how should Congress exercise the discretion that it enjoys in this context? The primary consideration that ought to inform the House and Senate is the public interest. Grand juries and prosecutors (akin to the House), as well as judges and petit juries (akin to the Senate) are all supposed to discharge their duties consistent with the public interest. Certainly relevant to a determination of the public interest is the informed and expressed will of the American people. Now I am certainly not suggesting that good leadership in Congress requires that the House and Senate always heed the latest overnight poll. But how Americans of both parties are reacting to the news as they absorb it is, and ought to be, tremendously important in deciding whether an impeachment should go forward. Again, the overriding question is whether someone has lost the ability to continue to effectively lead the nation as president, and that in turn depends on whether the American public simply will no longer follow him.
A final question to be posed is whether, assuming the high crimes and misdemeanors threshold has been satisfied, Congress can take action against the president that falls short of actual impeachment and conviction. This question of presidential censure came up in the Clinton impeachment, and I advanced (and still do) the position that even where impeachment is possible, it is not necessarily the only appropriate remedy. To be sure, when a president is impeached by the House and convicted by two-thirds of the Senate, removal from office is automatic, and disqualification from future officeholding is within the discretion of the Senate.
But nothing in the Constitution says that a Congress that starts down the impeachment path cannot explore other avenues as well. The power to impeach implies, at the very least, the power to make known the conditions under which impeachment is more or less likely. Thus, Congress could legitimately decide the president has committed certain reprehensible acts for which he must be accountable and then inform the president—either formally or informally—that an apology and demonstration of remorse would be necessary (and sufficient) to restore public faith in the administration such that he would remain fit for office and thus not subject to impeachment. The president could then determine for himself whether the conditional grant of impeachment immunity is acceptable. If so, impeachment proceedings could end; if not, they could continue. Such a deal, while not judicially enforceable, would not to my mind be unconstitutional.
Such a scenario would not necessarily create a forbidden “Bill of Attainder” as some might think. Bills of Attainder are person-specific laws enacted by a legislature to punish individuals. A conditional grant of impeachment immunity would be person-specific, but because of the context and the president’s assent it would be lenient rather than punitive. Consider the following analogy: Legislation that provided “Vik Amar shall be imprisoned for violating traffic laws” would be a Bill of Attainder. But legislation that provided “Vik Amar, who has violated traffic laws, shall not be subject to imprisonment” would not be an attainder, because it would be merciful rather than punitive. So too, legislation that provided “Vik Amar, who has violated traffic laws, shall not be subject to imprisonment provided he promises not to violate traffic laws in the future and pays for damage he has caused” would not be a prohibited Bill of Attainder. So long as Congress believes that a president may—if he does not accept the conditional amnesty—be subject to congressional prosecution and removal, a congressional offer would be an exercise of mercy, rather than punishment, when compared to the harsher alternative of possible conviction and removal.
To put my point another way, the Constitution does not deprive Congress of powers that prosecutors traditionally enjoy to use prosecutorial discretion to plea bargain in those situations where a defendant can still take actions that may make him unworthy of the greater sanction. Indeed, reading the Constitution, as many might be tempted to do, so as to force Congress into an all-or-nothing situation, may lead to instances in which Congress, the president and the people all agree that the public interest is best served by something other than removal and yet Congress would have to remove to avoid doing nothing at all.