September 16, 2017

Could Donald Trump be impeached? Here is the relevant Constitutional provision, Article II, Section 4:

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 not a likely ground, due to the definition: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." Article III, Section 3. Apparently "enemies" are only those with which we are at war. As to bribery, see below.

There are other relevant provisions pertaining to the duties of the President.

Article II, Section 1:

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’

Article II, Section 3: "[H]e shall take Care that the Laws be faithfully executed . . . ." 

We have two relatively recent instances of impeachment or proposed impeachment, Clinton and Nixon, which illustrate how the Constitutional provisions are invoked. The boilerplate language of impeachment was virtually the same in each case. Here is the recital from Article I, as approved by the House Judiciary Committee, against President Nixon :

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that: . . . .

Here is Article III of the impeachment of President Clinton, with the only variation in language italicized:

In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, and has to that end . . . .

The other articles in each case mirror that language.

Does any act or omission by Trump rise to impeachable level? The New York Review of Books has an excellent article reviewing two recent books on impeachment.[40]  It notes that "high crimes and misdemeanors" is a term of art referring to public office; the terms are not used in the criminal-law sense. "The words ‘crimes’ and ‘misdemeanors,’ . . . do not distinguish acts of different gravity, as they do in criminal law, but were intended as synonyms. More important, the adjective ‘high’ does not mean ‘very bad,’ but rather that the crimes are committed by high government officials in the course of their duties . . . ."

The House voted two articles of impeachment against President Clinton, one alleging perjury, the other obstruction of justice. Neither had any relation to a core duty of the presidency (note the evasive "while President"); both related to his tawdry affair with Monica Lewinsky and his attempt to hide that. There was an indirect connection to a civil case against him for sexual harassment dating to his days as Governor of Arkansas. Perhaps by the loose standards of that case, grounds might be found to impeach Trump. However, the Clinton impeachment was a misuse of the power. In Federalist 65, Hamilton described its purpose:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

Clinton’s impeachment was political in the sense of partisan, but not in the sense intended by Hamilton: relating to government. 

Because impeachment must refer to conduct while holding, and related to, an office, Trump’s pre-inaugural acts and statements probably would not support impeachment, unless they somehow carried over, for example in obstruction of justice. The investigation into collusion with Russia during the campaign could produce such a charge. As the NYRB article puts it: "Trump’s acknowledgment that he fired James Comey because he would not drop the FBI’s investigation of the Russia scandal is as close to a presidential confession of obstruction of justice as we are likely to see."

The other obvious ground is financial corruption, using the office to promote personal enrichment. Trump’s financial conflicts of interest are numerous and clear and, even if his financial benefits do not rise to the level of bribery, there is reason to find that some of them violate this provision of the Constitution: "no Person holding any Office of Profit or Trust [of the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State." Article I, Section 9. The obvious intent of the Emoluments Clause is to ensure that a public official serves the nation, and not his pocketbook, and that his decisions on public matters will not be influenced by private dealings, obligations or prospects. No amount of tap dancing by Trump’s lawyers around the definition of emolument will cause the conflict of interest to between his financial interests and his duty as President disappear.

Impeachment, though, unavoidably is also a political act in the partisan sense. This Republican Congress does not seem to be a likely source of impeachment or conviction. However, Trump’s cushion is smaller than Nixon’s, and not only because of his personal inadequacy. In 1972 Nixon won the popular vote by 17.8 million; Trump lost by 2.86 million. Nixon carried 49 states, Trump 30; he started from a weaker position in terms of popular support. His present level of approval, according to Gallup, is only marginally higher than Nixon’s at this time in 1973, with the Watergate investigation well under way. Congressional Republicans at some point may consider Trump’s presumed support for their agenda less important than reelection. His recent flirtation with Democrats and the reaction of some of his supporters may begin that process. 

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40. "What Are Impeachable Offenses?" Noah Feldman and Jacob Weisberg, September 28, 2017 Issue