My reasons for worrying that the House Democrats are making a big mistake in their rush to impeachment before Christmas were articulated better than I could ever do by Professor Jonathan Turley on Wednesday, in his testimony before the House Judiciary Committee. Turley is a law professor at the George Washington University Law School, and he was the one law professor selected by the Republican minority to testify. The other three professors--Noah Feldman (Harvard Law School), Pamela Karlan (Stanford University Law School), and Michael Gerhardt (University of North Carolina Law School)--were selected by the Democratic majority on the Committee. I watched all of the hearings. And I have read Turley's written statement. I regret that I have not yet read the written statements of the other three professors.
Some of Turley's recent articles on impeachment can be found at his website. Particularly good are three published in November: "How the Democrats Can Build a Better Case to Impeach President Trump," USA Today, November 25; "Adam Schiff's Capacious Definition of Bribery Was Tried in 1787," The Wall Street Journal, November 28; and "Watergate Line Speaks Volumes about Weak Impeachment Case," The Hill, November 30. Most of what he wrote in these three articles is included in his written statement for the Judiciary Committee.
Far from being a Trump supporter, Turley openly identifies himself as someone who voted for Hillary Clinton and who has been a staunch critic of Trump and his policies. Moreover, he agrees that a good case might be developed for impeaching Trump for his abuse of power. But still, he argues, that persuasive case for impeachment has not yet been made, and therefore the House needs to gather more evidence and hear from more witnesses so that they can slowly build a case for impeachment that could be persuasive enough with some Republicans to win a conviction in the Senate. If the House rushes to impeachment, and then fails in the Senate trial, Turley warns, the impeachment of Trump will look more like the failed impeachment of Andrew Johnson in 1868 than the threat of impeachment that succeeded in forcing Richard Nixon's resignation in 1974.
In the hearings on Wednesday, the other three law professors all argued in favor of the House quickly impeaching Trump, but they did not respond to Turley's arguments. Both the Democrats and the Republicans on the committee failed to ask the three law professors to reply to Turley. They thus failed to set up what should have been a lively debate over what should be the central question in these proceedings: What counts as a sufficiently persuasive case for the House impeaching the President, so that conviction in the Republican-controlled Senate is likely?
Yesterday, Trump tweeted: "if you are going to impeach me, do it now, fast, so that we can have a fair trial in the Senate." Trump himself wants the Democrats to quickly impeach him without taking the time to build the best case for impeachment--by going after the evidence that Trump is hiding--because then Trump can escape conviction in the Senate, and he can campaign against the Democrats for trying to use impeachment as a partisan weapon.
Turley makes three arguments for the conclusion that the case for impeaching Trump as it stands now is too weak. The first argument is about the constitutional standard for impeachment as it was originally understood by the constitutional framers. The second is about the lessons taught by the history of presidential impeachments. The third is about the failure to prove that Trump has committed impeachable offenses.
(1) THE CONSTITUTIONAL STANDARD
Although the Americans adopted impeachment from the British, Turley indicates, the framers of the Constitution wanted to avoid the use of impeachment for political purposes, as had been done in England and in the American colonies. They did not want the standards for impeachment to be so broad and vague that they could be used by political partisans to remove from office those they disliked. They wanted the standards to be very limited and clearly defined.
For Turley, one important piece of evidence for this is an exchange at the Constitutional Convention on September 8, 1787, between George Mason and James Madison. At that point, impeachment was limited to "treason or bribery." Mason said this was too limited, and he moved to add "or maladministration." Madison objected: "So vague a term will be equivalent to a tenure during the pleasure of the Senate." Mason withdrew "maladministration," and substituted "other high crimes and misdemeanors," which was approved (Records, 2: 550).
[As an aside, I should say that I doubt the wisdom of Turley's reliance on Madison's notes on the Constitutional Convention as a guide to the framers' intention. Madison's notes were not published until 1840, four years after his death, and over the years he had extensively revised his notes with both deletions and additions. And as Mary Sarah Bilder has shown--in Madison's Hand: Revising the Constitutional Convention (Harvard University Press, 2015)--his revisions were slanted towards the Jeffersonian ideology that he had developed later in his life.]
Madison's notes show, Turley says, that the Framers did not want impeachment to be equivalent to what the British Parliament does today in a vote of no confidence that removes the Prime Minister for purely political reasons. Turley observes:
"In the end, the Framers would reject various prior standards including 'corruption,' 'obtaining office by improper means,' betraying his trust to a foreign power, 'negligence,' 'perfidy,' 'peculation,' and 'oppression.' Perfidy (or lying) and peculation (self-dealing) are particularly interesting in the current controversy given similar accusations against President Trump in his Ukrainian comments and conduct" (10).But then Turley admits that Madison apparently contradicted this position at the convention on July 20, when he said that he
"thought it indispensable that some provision should be made for defending the Community against the incapacity, negligence, or perfidy of the chief Magistrate. The limitation of the period of his 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. . . . In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic" (Records, 2:65-66).So here Madison suggests that the standards for impeachment should include "negligence," "perfidy," "peculation," and "corruption." As I have said in a previous post here, Madison's ambivalence about the scope of impeachment shows the fundamental dilemma in the congressional power to impeach the President: either the standards for impeachment are so broad that it becomes a partisan weapon for subordinating the President to the Congress, or the standards are so narrow that it cannot protect the country from an incompetent or corrupt President.
This dilemma was manifest in an exchange at the Constitutional Convention on June 2, which is not mentioned by Turley:
"Mr. Sherman contended that the National Legislature should have power to remove the Executive at pleasure."
"Mr. Mason. Some mode of displacing an unfit magistrate is rendered indispensable by the fallibility of those who choose, as well as by the corruptibility of the man chosen. He opposed decidedly the making the Executive the mere creature of the Legislature as a violation of the fundamental principle of good Government" (Records, 1:85-86).As I have said in my previous post, the impeachment of Trump really is an attempt to overturn the presidential election of 2016 because of the fallibility of those who voted for him and the corruptibility of Trump. But the attempt to do this necessarily provokes partisan passions--or as Turley calls it, "rage over reason." A partisan vote in the Democrat-controlled House is likey to impeach Trump, and a partisan vote in the Republican-controlled Senate is likely to refuse to remove Trump from office.
To avoid this outcome, Turley argues, the House Democrats need to slow down and take the time to build a better case for impeachment that can persuade some Republicans to rise above their partisan interests.
(2) THE HISTORY OF PRESIDENTIAL IMPEACHMENTS
Turley points out that the history of impeachment shows that this is possible--that politicians in the Congress can sometimes be persuaded to set aside their partisan interests in deciding how to vote on impeachment.
In 1868, President Andrew Johnson was hated by the Republicans who controlled the Congress. He was ridiculed as incompetent and as the "accidental President," because he ascended to the Presidency as a result of Lincoln's assassination. He was a mean and crude man who often used inflammatory language, such as suggesting that his political opponents should be hanged. His racism was shocking, and he opposed black suffrage. He defended the Southern states against the proposals of the Radical Republicans for Reconstruction of the South. His widespread firings created chaos in the government. He was one of the worst presidents in American history. In other words, he was a lot like the man who holds the presidential office today.
It was surprising, therefore, when the Republicans failed in their effort to remove Johnson from office through impeachment. The Republicans saw Secretary of War Edwin Stanton as their ally in the Administration, and they anticipated that Johnson would fire him. So they passed the Tenure of Office Act, which prohibited the President from removing a cabinet officer without the appointment of a successor by the Senate. The Act declared that any violation of this law would be a "high misdemeanor." Johnson dismissed Stanton on February 21, 1868. A resolution of impeachment was passed in the House on February 24. By the middle of May, the Senate was ready to vote on removing Johnson. And since 42 of the 54 Senators were Republicans, and 36 votes were required for the 2/3 supermajority to convict Johnson, it should have been easy for the Republicans to win conviction. Nevertheless, on May 16, 1868, the vote was 35 for conviction and 19 for acquittal, with 7 Republican Senators voting for acquittal, thus falling only one vote short of conviction. The 7 Republicans voting for acquittal hated Johnson, but they thought that impeaching him for violating what was probably an unconstitutional law was an abuse of the impeachment power. They knew that this would be the end of their political careers because of the animosity of their party.
Turley rightly sees two lessons in the failure of the Johnson impeachment. Not only does it show that members of Congress can be persuaded to vote against their partisan interests in favor of higher constitutional principles. It also shows that "short impeachments are generally not strong impeachments" (17). The Johnson impeachment proceedings stretched a little over three months. It now appears that the congressional Democrats want their impeachment of Trump to be completed just as quickly; and like the Johnson impeachment, that means that the leaders of impeachment will not take enough time to develop a case for impeachment likely to persuade 2/3 of the Senate.
By contrast, the Nixon impeachment hearings in the House extended over 14 months, which allowed for the development of the broadest and deepest evidentiary record in any impeachment. Nearly 70 officials were charged, and 48 of them were found guilty. Some of the Watergate defendants were sentenced to as long as 35 years. Nixon himself was not actually impeached, because he resigned in August of 1974 after Republican leaders in Congress told him that he had lost the support of his own party.
Turley rightly argues that the current proceedings for impeaching Trump look too much like the failed Johnson impeachment and not enough like the successful Nixon impeachment proceedings.
(3) IS TRUMP IMPEACHABLE?
At various points in the impeachment inquiries, the Democrats have charged that Trump has committed impeachable crimes such as bribery, extortion, obstruction of justice, and violation of campaign finance laws. But so far there does not seem to be sufficient evidence to convict Trump of such crimes.
Originally, the Ukraine controversy--as centered on Trump's July 25th telephone call with Ukraine's President--was said to show not criminal conduct but an abuse of power in using the authority of the presidency to advance Trump's personal political interests rather than the national interest. It's clear that a president can be impeached for abuses of power that are not criminal. After all, Alexander Hamilton (in Federalist Number 65) identified impeachable offenses as "those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust."
But, still, as Turley points out, no president has ever been impeached purely for abuses of power without any charges of criminal conduct. And while the Constitution does not require a presidential crime for impeachment, impeaching a president for a non-criminal abuse of power would presumably require clear proof of that abuse of power. In the case of the Ukraine controversy, we would need convincing evidence of Trump offering a quid pro quo.
The problem here, Turley contends, is that the House Democrats have not yet gathered enough direct evidence of Trump's quid pro quo to be convincing. A convincing case might be developed if they compelled the White House to release pertinent documents and subpoenaed the testimony of those who have direct knowledge of Trump's conduct in dealing with the Ukraine--people like John Bolton, Rudy Giuliani, Mike Pence, and Mike Pompeo. The White House would likely invoke "executive privilege" in appealing to the courts, and this would take some months to get a final decision from the courts. But why not do this?
This was done in the Nixon impeachment proceedings. In U.S. v. Nixon, a unanimous Supreme Court issued its decision on July 24, 1974, ordering Nixon to deliver tape recordings and other subpoenaed materials to a federal distinct court. This decision came less than three weeks after oral arguments. The White House released the subpoenaed tapes on August 5, which included the famous "smoking gun" tape in which Nixon indicated that he knew about the Watergate break in shortly after it occurred, and that he plotted to cover it up. Nixon resigned on August 9, only 16 days after the Court's decision.
If something like this was done by the House Democrats investigating Trump, they might actually build such a persuasive record of impeachable conduct that 20 Republican Senators might vote for conviction. It's hard to understand why the Democrats have decided not to do this.