Trump's Impeachment Would Rightly Overturn His Election in 2016: The Question of Impeachable Conduct

Donald Trump's defenders are saying that the call for his impeachment is a plot by Democrats and Never Trumper Republicans to overturn the results of the presidential election in 2016.  On Friday, Attorney General William Barr said that House Democrats were trying to subvert the will of the voters.  Well, yes, of course, but that's the whole point of giving the Congress the constitutional power to impeach the President!

At the Constitutional Convention, James Madison thought impeachment "indispensable . . . for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate.  The limitation of the period of service was not a sufficient security.  He might lose his capacity after his appointment.  He might pervert his administration into a scheme of peculation or oppression.  He might betray his trust to foreign powers" (Farrand's Records, 2:65-66).  George Mason said this power to impeach the president was "rendered indispensable by the fallibility of those who choose, as well as the corruptibility of the man chosen" (ibid., 1:86).  Those proposing impeachment today are arguing that Trump's presidency shows both the fallibility of those who voted for Trump in 2016 and the corruptibility of Trump himself.  The debate is over whether this is correct.  I have written about this in previous posts here. and here.

We should remember the only case in American history when a President was forced out of office by the threat of impeachment--Richard Nixon's resignation in 1974.  In two other cases--Andrew Johnson and Bill Clinton--the President was impeached by the House, but the Senate refused to convict and remove the President.  In 1972, Nixon was reelected to a second term with the largest landslide victory in American history: running against George McGovern, Nixon won 60% of the votes and 49 of the states, with McGovern winning only Massachusetts and the District of Columbia, so that the Electoral College margin was 520 to 17!  Nixon was compelled to resign, on August 9, 1974, when he saw that his impeachment and removal from office would be inevitable if he did not resign.

Those leading the impeachment inquiry in the Congress knew that they were overturning the presidential election of 1972.  As Chair of the House Judiciary Committee, Peter Rodino was one of the leaders of the impeachment process.  In a conversation with reporter Theodore White, Rodino observed:

"To me, 'high crimes and misdemeanors' were never precise.  The way I read them, they aren't meant to spell out anything but a President's performance in office.  I see it as the kind of conduct that brings the whole office into scandal and disrepute, the kind of abuse of power that subverts the system we live in, that brings about in and of itself a loss of confidence in the system . . . I guess, all in all, it's behavior which in its totality is not good for the Presidency, nor any part of the system.  I got to agree this is an effort to overturn the election . . . but if this country can't stand a crisis, something has happened I don't understand" (Theodore White, Breach of Faith: The Fall of Richard Nixon [New York: Dell, 1976], 285).

So as with the impeachment of Nixon, we are again in a debate over whether the behavior of the President shows an abuse of power that so threatens the constitutional order that we should make "an effort to overturn the election" of the President.

[At Tuesday's impeachment hearing, Congressman Denny Heck (D-Washington) made my point here, saying that by definition impeachment of a president means overturning an election.  He also noted that that one of the anti-corruption constitutional reforms in the Ukraine is allowing for the impeachment of the Ukrainean President.]

That debate turns on the question of whether Trump has committed "Treason, Bribery, or other high Crimes and Misdemeanors," the standards for impeachment specified in the Constitution (Article 2, Section 4).  Inevitably, the debate becomes confused by the mistaken assumption of many people that this constitutional language requires that the President must have committed an indictable crime that is very serious ("high").  This is mistaken because impeachment was understood by the Founders as directed not only against crimes such as treason and bribery, but also against "high crimes and misdemeanors" that were understood broadly as including maladministration and abuses of power that were not necessarily illegal acts.

So, for example, the Republicans on the House Intelligence Committee are correct in their insistence that President Trump has the constitutional power to dismiss Ambassadors at his pleasure, and therefore his dismissal of Marie Yovanovitch from her ambassadorship in the Ukraine was a legal act.  Indeed, she herself repeatedly agreed with this in the hearing yesterday.  But how the President uses that power can be impeachable if he abuses the power in some way that violates constitutional norms or subverts the national interest.  If Ambassador Yovanovitch was serving the nation's foreign policy interests in the Ukraine, and if Trump's dismissal of her was only to serve his personal and political interests--in having the President of the Ukraine announce investigations of the Bidens without any evidence of wrongdoing--that could be an impeachable offense.

Similarly, Trump  announced yesterday that he is pardoning some military personnel who have been convicted of war crimes.  The President clearly has a broad pardoning power in the Constitution, so these pardons are legal.  But the Congress could decide that these pardons are an impeachable abuse of the pardoning power if they violate the nation's foreign policy interest in upholding the laws of war.  In the same way, if Trump were to pardon Roger Stone and others involved in his collusion with Russia in the 2016 election, that could be judged to be an impeachable abuse of his pardoning power.

This is all supported by the history of impeachment in Great Britain and America, which is now well laid out in Frank Bowman's new book--High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge University Press, 2019).

As I have indicated in my previous posts on impeachment, one could trace the origins of impeachment all the way back to our prehistoric foraging ancestors, or even to our earlier primate ancestors, because once animals have any kind of hierarchy of leadership, they face the problem of how to remove powerful individuals who become oppressive.  We see what Christopher Boehm has described as a tense balance between our natural dispositions to dominance, deference, and resistance to dominance.  Some individuals are naturally inclined to dominate over others, and many are naturally inclined to submit to these dominant individuals.  But we are also naturally inclined to resist dominant individuals who become oppressive.  The constitutional order of a regime has to structure political life to accommodate these three dispositions, which includes some way to overthrow those at the top who misbehave.

Impeachment in the strict sense is a British invention that was created by Parliament in 1376 to resist monarchic absolutism by removing and punishing royal ministers who were executing royal policies that Parliament found to be abusive. Rather than go into open rebellion against the monarch's policies, Parliament could use impeachment of the monarch's ministers based on the legal fiction that the monarch was not wrong, but that he had been misled by his ministers.  The first impeachments occurred during the reign of Edward III.

The British Parliament developed the term "high crimes and misdemeanors" to denote the scope of impeachable offenses.  It also developed the procedure of impeachment in which the lower house of a bicameral legislature launched the impeachment process with charges and then prosecuted the case before the upper house that decided whether the charged individuals should be convicted.

The delegates to the Constitutional Convention of 1787 were familiar with this British history of impeachment.  They were also familiar with the use of impeachment in the American colonies before 1776 and in the new American states between 1776 and 1787.  Then, after the adoption of the Constitution in 1789, the interpretation of the constitutional power of impeachment could be developed through a kind of common law procedure of setting legal and political precedents as customary norms that evolved over time.

We could see this as a case of gene-culture coevolution in which the genetic evolution of human nature--the natural disposition to resist oppressive dominance--interacts with the cultural evolution of the institution of impeachment and the history of individuals (such as the American constitutional framers) who exercise practical judgment in formulating the rules of impeachment.  Impeachment thus emerges from a complex interplay of natural history, cultural history, and biographical history.  (I have written about gene-culture coevolution here.)  The Trump impeachment process will contribute to this evolutionary history.

As Bowman indicates (pp. 46-49), impeachable conduct in Great Britain fell into six categories.

(1) Non-Political Impeachments: Armed Rebellion and Ordinary Criminality.  It was an ancient custom that hereditary peers of the realm could be tried only by other peers in the House of Lords.  Consequently, a peer accused either of armed rebellion or an ordinary felony could be tried by impeachment in the House of Lords.

(2) Corruption.  Corruption was the most common charge in British impeachments, and it was mostly identified as the misuse of office for private gain.

(3)  Incompetence, Neglect of Duty, or Maladministration in Office.  This was a common theme in British impeachments.  It often came up in connection with military leaders who had suffered military disasters.

(4) Abuse of Power.  Impeachment for some abuse of official power can fall under one of the preceding two categories, because the abuse of power might be seen as corruption or maladministration.

(5) Betrayal of the Nation's Foreign Policy.  A common theme in British impeachments was charging ministers with promoting policies that subverted the nation's foreign policy interests.

(6) Subversion of the Constitution and Laws of the Realm.  Parliament often acted against ministers and officials who sought to enlarge or misuse the executive powers of government against the interests of Parliament or against the legal order of statutes and court decisions, which thus violated the British constitutional order.

The Americans adopted all but the first category in their understanding of impeachment.  But they made one major change from the British practice: while the British monarch was exempt from impeachment, the Americans decided that the chief executive--the President--should be impeachable; and so while the American President had some monarchic powers (for example, the power of Commander in Chief and the pardoning power), he would not be an elected monarch so long as he was open to impeachment.

Trump's impeachable offenses could fall under any of the five categories adopted by the Americans.  He could be charged with corruption if he has used his office for private gain, and here the "Emoluments Clause" could come into play.

He could be charged with maladministration or incompetence manifest in the impulsiveness of his decision-making and the chaos he has introduced into the executive offices of government.  When William Taylor and Marie Yovanovitch complained of the "irregular channels" of policy making by Rudy Guiliani and his associates, they pointed to one kind of maladministration under Trump.

He could be charged with abuse of power, as in the dismissal of Yovanovitch.

He could be charged with betrayal of the nation's foreign policy by favoring the interests of Russia, by subverting American foreign policy objectives in the Ukraine, and by disrupting America's economic, political, and military alliances and agreements in ways that undermine American foreign policy.

But probably the clearest impeachable offense for Trump would be the last category--subversion of the constitutional order.  In 1678, the earl of Danby was impeached by Parliament with the charge that he had "endeavored to subvert the ancient and well established form of government in this kingdom, and instead thereof to introduce an arbitrary and tyrannical way of government."  Similarly, Trump could be charged with assaulting the norms of American constitutional government by pursuing his own self-aggrandizement by establishing government by his own will.

Some of these charges are likely to be persuasive enough with the House Democrats to lead to Trump's impeachment by the House.  But it seems highly unlikely that the Senate will vote to convict him and thus remove him from office.  The reason is that the Constitution's requirement of a 2/3 supermajority in the Senate for an impeachment conviction looks like an impossibly high bar.  67 Senators voting for conviction would require all of the Senate Democrats and 20 of the Senate Republicans.  It's hard to imagine that many Republican Senators turning against Trump.

The constitutional framers put the conviction threshold at this high level because they feared that any lower level would make it too easy to impeach the President and thus completely subordinate the President to the Congress.  In Federalist 65, Alexander Hamilton wrote that impeachable offenses

"are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done to the society itself.  The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly to the accused.  In many cases it will connect itself to pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt."

Requiring a 2/3 Senate supermajority to convict the President protects against party factions in the Congress using the impeachment power to make the President utterly subservient to Congress, and thus violating the principle of separation of powers.  But the constitutional framers did not consider the possibility that this high threshold would also allow party factions passionately loyal to a presidential demagogue to protect a dangerous president from being impeached, because they would need only 34 Senators out of a hundred to vote against impeachment.  That's what Mitch McConnell plans to do.

In 1973, Senator Barry Goldwater went to the White House to tell Richard Nixon that the Republicans in Congress would join the Democrats in impeaching Nixon if he did not resign.  Nothing like that is likely to happen today, because the tribalism of American politics today--the fanatical us-against-them psychology of party competition between Republicans and Democrats--make it almost impossible for most people in the Congress to put the interests of the Congress and the nation ahead of party partisan interests.  As I have said in previous posts here and here, Justin Amash is one of the few American politicians today who recognize the need to overcome the tribalism of the two-party system in order to recover the constitutional powers of the Congress in checking the unconstitutional supremacy of the presidency.

If the Congressional Republicans do succeed in protecting Trump from impeachment, that will set up the possibility that the elections of 2020 could lead to a devastating defeat for Trump's Republican Party, which could then force a realignment of the party system that might support a restoration of the constitutional balance between Congress and the President.  The 2018 mid-term elections and some of the recent elections (in Virginia, Kentucky, and Louisiana) show that Trump Republicans are losing all across the country.  Louisiana is supposed to be Trump country, and yet despite the fact that Trump made three trips to Louisiana to endorse Eddie Rispone for Governor, Governor John Bel Edwards, a Democrat, was reelected.  (I have written about the signs of political realignment and the declining appeal of populist nationalism in the 2018 elections here.)

There is another important point at issue here.  Many of Trump's Republican supporters have said that his moral depravity--his lack of any moral or intellectual virtues--does not matter as long as he promotes some good policy ends (such as attacking the administrative state and appointing conservative judges).  But almost every day now we see evidence for why moral character matters in politics.  And we see that in the impeachment hearings.

Yesterday, for example, the White House was following a careful strategy for dealing with the impeachment hearings: Trump would pretend to be so busy in the White House--working dutifully on the policies that benefit the people!--that he would not have time to watch the impeachment hearings, which would show that the Democrats' impeachment activity is an absurd waste of time.

But then Trump could not control himself.  He started watching the hearings on TV, and, without consulting with anyone, he sent out a Tweet attacking Marie Youanovitch, even while she was still testifying.  Adam Schiff then read Trump's Tweet in the hearing, Youanovitch said she found this very intimidating, and Schiff identified this as witness intimidation.  Suddenly, the White House's carefully planned strategy was blown up by Trump's impulsiveness.

The conclusion I draw from all of this is that the best witness for impeachment is Trump himself.  Let Trump be Trump!

I have written about Trump's immoral character here.