The Constitution’s Case for
Impeachment
Miles Mogulescu
Millions of Americans sit helplessly by as an unfit, narcissistic, ignorant, pathologically lying, misogynistic, racist, xenophobic President allies himself with Russia and Putin against our government.
He does nothing to protect American
elections against continued attacks from a hostile foreign adversary.
He supports suppressing the votes of citizens who may oppose him, and attacks fundamental American and Constitutional values in a manner that may irreversibly damage our system of democracy.
He supports suppressing the votes of citizens who may oppose him, and attacks fundamental American and Constitutional values in a manner that may irreversibly damage our system of democracy.
This, and much more, adds up to a
constitutional crisis.
Is there nothing that those who care
about the survival of American values and democracy can do, but hope and pray
that this manifestly unfit President is not reelected in 2020 or 2024, and that
the United States, as we know it, survives until then?
The authors of a newly released
book, The Constitution Demands
It: The Case For The Impeachment, propose another solution: let
Congress immediately begin impeachment hearings to determine whether President
Trump has committed “high crimes and misdemeanors.”
Under the Constitution, they say,
this would demand Trump’s removal from office, and citizens should take
whatever actions are within their power to get Congress to exercise its
Constitutional authority.
The first words of the foreword to
the book summarize this case:
“Impeachment is not a constitutional crisis.Impeachment is the cure for a constitutional crisis.”
The Case for Impeachment
The authors, Ron Fein, John Bonifaz and Ben Clements, are all veteran Constitutional attorneys, and do not reach this conclusion lightly.
Rather, they carefully examine Constitutional history, law, and politics to make a reasoned case that can be understood both by legal scholars and ordinary citizens.
The authors set forth in detail
eight categories “where Trump has already crossed the line into impeachable
territory, each of which could form the basis for a separate impeachment
count”:
- Violating the Emoluments Clause of the Constitution by profiting from business with foreign and domestic governments;
- Conspiring to solicit and then conceal illegal foreign aid to his Presidential campaign by a foreign adversary;
- Obstructing Justice;
- Directing law enforcement to improperly investigate and prosecute political opponents;
- Abusing the pardon power;
- Advocating illegal violence and undermining equal protection of the laws;
- Endangering the nation and the world by recklessly threatening nuclear war;
- Undermining the Freedom of the Press.
The first three counts are the most
compelling.
They make a prima facie case that Trump has already committed “high crimes and misdemeanors,” based on publicly known information.
They make a prima facie case that Trump has already committed “high crimes and misdemeanors,” based on publicly known information.
Some of the others, at least viewed
in isolation, make a weaker case. For example, denigrating the free press may
be dangerous and despicable, but absent concrete governmental action to
actually suppress freedom of the press, it may not rise to the level of “high
crimes and misdemeanors,” except, arguably, as part of a part of a pattern of
misdeeds violating the public trust.
Impeachable Offenses Should Be
Judged as a Whole
Beyond the specific eight
impeachment counts proposed in the book (as well as other potential counts),
the authors make two vital and more general points about the Constitutional
grounds for impeachment and when they should be invoked.
First, while many dangerous acts and
statements by Trump, taken in isolation, may not alone rise to the level of
“high crimes and misdemeanors,” when taken together they
form a “pattern that turn individually troubling acts into a dangerous abuse of
office.”
Quoting one Constitutional scholar,
the book argues that Articles of Impeachment do not require that “an official’s
course of conduct must be divided into offenses and that each offence must be
judged separately as to whether it is impeachable…It has been well understood
that the official’s conduct as a whole should be the subject of judgment.”
Thus, it could be argued that no
single one of Trump’s 4,229 lies, no single statement that Putin’s denials of
Russian meddling are as credible as 18 US intelligence agency, no single attack
on the freedom of the press, no individual attack on the legitimacy of the
Mueller investigation, etc. rises to the level of a “high crime and
misdemeanor.”
But taken together, they form a pattern of behavior constituting an abuse of power.
But taken together, they form a pattern of behavior constituting an abuse of power.
Crimes and Impeachable Offenses
The authors’ second, and even more
crucial argument, is that every impeachable offense need not constitute a crime
under the Federal Code, and that every crime is not necessarily an impeachable
offense.
According to Alexander Hamilton,
impeachable offenses arise from “the misconduct of public men, or in other
words from the abuse or violation of some public trust…They relate chiefly to
injuries done immediately to society itself.”
The House Judiciary Committee’s 1974
Report during the Nixon impeachment proceedings divided impeachable offences
into three broad categories:
(1) exceeding the constitutional bounds of the power of the office, in derogation of the powers of another branch of government;
(2) behaving in a manner grossly incompatible with the proper function and purpose of the office; and
(3) employing the power of the office for an improper purpose or for personal gain.
(1) exceeding the constitutional bounds of the power of the office, in derogation of the powers of another branch of government;
(2) behaving in a manner grossly incompatible with the proper function and purpose of the office; and
(3) employing the power of the office for an improper purpose or for personal gain.
In the early 19th century, Supreme Court Justice Joseph
Story explained that high crimes and misdemeanors “reaches what are aptly
termed political offenses, growing out of personal misconduct, or gross
neglect, or usurpation, or habitual disregard of the public interest, in the
discharge of political office,” whether or not they are breaches of the
criminal code.”
Viewed in this way, the Mueller
investigation and a Congressional impeachment proceeding would serve different
though overlapping purposes.
Mueller’s mandate is to investigate
whether criminal violations of the Federal Code have been committed, and to
punish them. Even if Trump did commit crimes, it is debatable whether he could
be tried while still in office.
In contrast, the purpose of a
Congressional impeachment investigation is to determine whether “high crimes
and misdemeanors” in the Constitutional sense have been committed, regardless
of whether or not they technically violate the Federal Code.
This is a much broader standard.
Its purpose is less to punish than to prevent and deter present and
future abuses of the public trust by this and future Presidents.
It is therefore a political mistake
for Democrats to leave the decision of whether impeachable offenses have been
committed to Robert Mueller and his staff alone.
Even if Mueller’s report were to find that Trump criminally broke the Federal Code, it would initially be up to Congress, not the courts, to decide what should happen to his Presidency.
Even if Mueller’s report were to find that Trump criminally broke the Federal Code, it would initially be up to Congress, not the courts, to decide what should happen to his Presidency.
The Silence of Both Democratic and
Republican Leaders
Nevertheless, while impeachment may
be discussed widely over Americans’ kitchen tables and summer barbecue grills,
you’ll almost never hear the word “Impeachment” mentioned by Congressional
leaders, whether Republican and Democratic.
Republican leaders are either silent
about Trump’s misdeeds—so long as he cuts taxes on the wealthy, undermines
environmental and financial regulation, and appoints hard-right judges—or
actively join Trump in attacking the Russia investigation as a witch-hunt.
Meanwhile, Democratic Congressional
leaders—headed by Nancy Pelosi and Chuck Schumer—are doing everything in their
power to tamp down impeachment talk and to be sure that as few Democratic House
and Senate candidates running in the fall allow the word to pass their lips.
Their argument, apparently, is that if Democrats mention impeachment, it will rile up Trump’s base, making it more likely they will vote and prevent a Democratic victory.
They seem more interested in mollifying Trump voters than in exciting their own potential supporters to go to the polls.
Their argument, apparently, is that if Democrats mention impeachment, it will rile up Trump’s base, making it more likely they will vote and prevent a Democratic victory.
They seem more interested in mollifying Trump voters than in exciting their own potential supporters to go to the polls.
This is at best unprincipled and at
worst constitutes political malpractice.
However loudly Democratic candidates
and leaders may proclaim that impeachment is off the table, Trump voters won’t
believe them.
Second, potential Democratic voters, particularly younger voters and minorities tend to sit out mid-term elections. There’s nothing like the prospect of a Democratic House impeaching President Trump that will motivate large numbers of potential Democratic voters to actually register and vote.
Second, potential Democratic voters, particularly younger voters and minorities tend to sit out mid-term elections. There’s nothing like the prospect of a Democratic House impeaching President Trump that will motivate large numbers of potential Democratic voters to actually register and vote.
Would Impeachment Do More Harm Than
Good?
A more academic argument against impeachment
is made by liberal Harvard constitutional professor Laurence Tribe in his new
book To End a Presidency (co-authored with Joshua
Metz.), an argument that may give intellectual heft to Democratic leaders’
opposition to impeachment.
While slightly hedging their bets,
Tribe and Metz generally agree that Trump has likely committed high crimes and
misdemeanors that could justify impeachment, many of them similar to those
listed by Fein, Bonifaz and Clements.
But for most of the book, Tribe and
Metz go beyond their particular expertise as constitutional scholars to become
political pundits.
In that regard, their argument is that the American political system has become so dysfunctional, that impeachment hearings would do more to harm the American political system than good.
They write,
In that regard, their argument is that the American political system has become so dysfunctional, that impeachment hearings would do more to harm the American political system than good.
They write,
“There can be little doubt that a successful impeachment campaign would inflict enduring national trauma. For months or years, politics would shift from ordinary governance toward a grand inquest in the president’s alleged evil deeds…The resulting enmities, cynicism and disenchantment with democracy could persist for generations…An embattled president—or his opponents—might engage in acts of desperation that shatter norms, institutions, and the rule of law.”
Such dangers might look only
prospective when sitting in the Ivy halls of Harvard. But in the real world,
the dangers Tribe and Trump fear that impeachment hearings would cause are
already happening.
Under Trump, the nation is already “enduring national trauma. “
If you don’t think that politics has already shifted from ordinary governance into “a grand inquest over the president’s evil deeds,” just watch the nightly news.
Moreover, there is a strong case that Trump’s continued Presidency will damage democracy for generations, if not forever. And Trump has already engaged in numerous “acts that shatter norms, institutions, and the rule of law.”
Under Trump, the nation is already “enduring national trauma. “
If you don’t think that politics has already shifted from ordinary governance into “a grand inquest over the president’s evil deeds,” just watch the nightly news.
Moreover, there is a strong case that Trump’s continued Presidency will damage democracy for generations, if not forever. And Trump has already engaged in numerous “acts that shatter norms, institutions, and the rule of law.”
As John Nichols writes in the
Foreword to The Constitution Demands
It,
“Misguided people who imagine that liberty and justice for all can long survive in a circumstance where a President places himself above the law fret about the political consequences of addressing a constitutional crisis with a constitutional remedy. They foolishly imagine that it is better to wait a lawless presidency out, with faint hope for better results on some distant election day. They refuse to recognize that each failure to demand necessary accountability invites greater abuses and diminishes the prospect that accountability will ever be achieved.”The Constitution Demands It makes a powerful case that Donald Trump has committed numerous impeachable offenses, individually and in the aggregate, and that failure to act endangers the future of American democracy.
If our political leaders will not
take up this call, then it must come from the people.