Balkinization: On the Persistence of Really Bad Constitutional Arguments

On the Persistence of Really Bad Constitutional Arguments

Stephen Griffin

Today’s NYT has a story about the “constitutional nonsense” propounded by the White House Counsel’s trial memo. The nonsense is their argument that only ordinary crimes (or perhaps violations of law) can be impeachable offenses. The article accurately reports that the vast majority of scholars and commentators who have examined this issue have concluded that this is wrong. It is not only wrong, it is wrong on multiple counts – text, history, structure – you name it, all methods of constitutional interpretation appear to line up the same way. Thus the scholarly confidence about “nonsense.”

Well, almost all methods. On this blog in September I predicted that Republicans “will attempt to defend Trump on the ground that only a criminal violation can justify impeachment. They will say that only a criminal charge can arise to the level of seriousness required by the Constitution and also provide the specificity that can allow the president the due process of being allowed to refute the charge.” I also said there would be a race to frame the issue, but in my humble opinion Democrats muddied the waters by playing around with the idea of charging Trump with a crime such as bribery. They think their charge of “abuse of power” is an obvious way to characterize Trump’s actions and maybe it is. But it doesn’t fully deal with the historical currents that have produced the “no crime, no impeachment” argument in the past.

Why are past impeachments relevant? Our constitutional tradition allows people to make arguments not only on the grounds of judicial “precedent,” but historical “practice.” Some practice is against Trump as well, as federal judges have been accused of impeachable offenses that are not federal crimes. But, as I detail in this article, this is not really true of presidential impeachments. There is some truth in the contention of the Trump lawyers that all past presidential impeachments have gone forward on a criminal model. So they potentially have a “practice” argument although all other methods of interpretation are against them. And it is important to understand why.

I’m not going to argue the Johnson, Nixon, or Clinton impeachments in detail, because I provide that in the article just referenced. In brief, Johnson was accused of violating a specific law, the Tenure of Office Act, the constitutionality of which was questioned even in his day (most commentators today assume it was unconstitutional). But one reason he was accused of such a curiously specific violation is that Republicans felt uncomfortable charging him simply with failing to carry out his constitutional duties during Reconstruction. I infer the framers of the Constitution would have had no trouble understanding that Johnson had acted improperly and (perhaps more important for them) dishonorably. But the party politics of the mid-nineteenth century were already far removed from the gentlemanly reality of the late eighteenth. Nixon’s articles, especially the second, were not seen as linked to crimes, but a more careful reading, along with the viewpoint of those serving on the House Judiciary Committee, was that he was being charged with federal crimes. And the context of the Clinton impeachment was clearly criminal as he was accused of perjury and obstruction of justice.

Now one could easily make an argument that Johnson and Nixon especially had indeed abused their power. And certainly the idea of “abuse of power” or “abuse of the public trust” can be linked to the eighteenth-century adoption of the Constitution. So what’s up? I argue in the article that in each case, the House strives to appear to be above partisanship even though they are obviously partisans. They can best do this by settling on charges the gravity of which cannot be denied. Federal crimes, of course, fit the bill. But there is another source of the focus on criminality. I’m exaggerating only slightly in saying that in each presidential impeachment, criminal defense lawyers seem to come out of the woodwork, insisting that the only model that satisfies standards of due process is the model of a criminal trial. And such trials demand specific charges of the violation of law. In the Clinton and Trump impeachments, the ones I’ve witnessed as an adult, I’ve wondered each time at the enormous attention such a perspective is given. One might think the appropriate perspective comes from separation of powers law, not criminal law. After all, the president is not being threatened with being put in prison. Being impeached by the House or even tried by the Senate does not look very court-like. But these analogies are used by both sides. If evidence is persuasive, the House managers would like to exhibit it, and they use criminal trial analogies just like President Trump’s lawyers. Just today, the House managers asked how what Senator McConnell is proposing could be valid given the normal structure of a criminal trial. But is it a trial at all? Impeachment proceedings don’t fit any criminal analogy. Regardless of considerations of partisanship, in each presidential impeachment that makes some members of Congress deeply uneasy.

What I love about presidential impeachments is that they exhibit the complexity of what is asked of us by a largely static Constitution. We are asked to embrace eighteenth-century standards in a world dominated by a party politics unforeseen by the framers. The excessive reliance on criminal standards in each impeachment is, in fact, a repudiation of the eighteenth-century. No eighteenth-century gentleman with an honorable record of public service would have been caught dead carrying out the dishonorable actions of Johnson, Nixon, Clinton, and now Trump. Yet even as we labor to adhere to them, their standards are not ours. In the absence of any concerted effort to reflect on and update the Constitution to new realities, informal constitutional change takes over. The vigorous advocacy of the White House Counsel of a criminal standard is a total repudiation of any form of originalism or reliance on history as a guide to constitutional interpretation. Aided and abetted by criminal defense lawyers who should know better, such arguments cannot be driven out of the public sphere. And we are all worse off for it.

Posted 1:19 PM by Stephen Griffin [link]