Admit the Bearer: Impeachment of the President (Revised and Updated)

Here are a few historically-minded thoughts on the impeachment of President Trump.  When impeachments start, we naturally search the Constitution and the practices of Congress for guidance.  But in my estimation, presidential impeachments are so rare that they cannot be effectively institutionalized within a constitutional order.  Each time, each branch starts over.  Aside from the constitutional standard of “high crimes and misdemeanors” and the voting rules, the sequence of proceeding from House to Senate, there are no set procedures.  That reality creates opportunities and dangers for Speaker Pelosi and House Democrats.

I have an article coming out this month in the Connecticut Law Review that argues articles of impeachment tend to cluster around a criminal law model – even if they don’t directly accuse the president of having violated a specific law.  They are nonetheless usually written as if they are accusing the president of crimes.  But the Ukraine allegations take us into fundamentally new territory.  This could be really interesting.  Maybe what Trump did amounts to a campaign finance violation, but that’s not the gravamen of the impeachment.  The true basis is the threat of Trump using his control over foreign policy to influence foreign prosecutors (foreign intelligence services!) to go after his domestic political opponents.  So this could be the first presidential impeachment to be truly based on a non-criminal matter, something falling clearly and only into the category of an abuse of power or, as Alexander Hamilton put it, a violation of the “public trust.”

Yet we have already seen the appearance of the criminal law model in remarks by the House Minority Leader.  It is worth understanding that despite this model lacking an eighteenth-century pedigree, it is fueled by two considerations.  First, it is easier to gain bipartisan assent that a serious violation of a criminal law is an impeachable offense.  Pursuing a non-criminal "abuse of power" charge tends to fall apart unless there is a preexisting consensus on the nature and scope of such charges.  Such a consensus is lacking, especially in partisan times.  And the Trump impeachment will be even more partisan than the Clinton impeachment.  Already it has become apparent that to perhaps most Republicans, the House of Representatives, the institution, is not pursuing the impeachment of President Trump.  Rather, the Democratic Party is impeaching President Trump.  Without any shared assumptions over what constitutes an impeachable offense, the Democratic Party might as well be a private club deciding over whether to pass a resolution of disapproval.  This perception will further undermine the legitimacy of the system of checks and balances.

The second consideration that at least in the past has fueled the criminal law approach is the constitutional guarantees of due process.  Republicans will argue 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.  Here there will likely be a race to frame the issue – Republicans on the side of a criminal law/due process framing and Democrats saying there has been a clear crossing of the line that marks abuse of power.  It helps that the Ukraine allegation is one that any Democratic politician can understand and easily explain to their constituents, something that wasn’t true of the Mueller Report.  Also, there’s the point that if Democrats don’t respond in some way, Trump will feel empowered and up the ante again.

In recent times, impeachment has been a task given to the House Judiciary Committee.  But other institutional pathways are possible.  We've already seen the House Intelligence Committee take the lead.  But which Committee handles impeachment matters less than the Democrats getting some professional help in terms of experienced staff and attorneys to handle the questioning.  I commented in my initial post that the House Judiciary Committee has one of the most profound partisan splits.  I failed to mention that this is true of most House committees.  It is likely that the impeachment-related debates on any committee will not be pretty or edifying.  Without some serious course corrections as far as procedure, they will likely not build public confidence and trust in the impeachment.  That’s a big danger for Democrats.

Drafting the articles of impeachment also poses challenges.  For my part, I would draft articles that make it clear to any persuadable Republicans that they would have to object to Trump's behavior if it was repeated by a Democratic president.  Although there appears to be no bipartisan spirit in Washington, Democrats can still frame articles of impeachment in bipartisan terms.

This presidential impeachment is also unique because it is the first to occur in the president's first term.  The shadow of the 2020 election will loom large.  I could imagine an Andrew Johnson solution to Trump’s predicament, perhaps brokered by Senate Republicans.  Johnson avoided conviction in the Senate at least in part because he communicated that he would not further oppose its Reconstruction policy.  Similarly, as part of an effort to avoid a Senate trial, Trump could promise (amazing that we even have to think about this) not to solicit or leverage foreign governments for political gain.  Of course, Democrats will have trouble believing him, but if the promise is perhaps accompanied by new legislation to the same effect, there might be room for a deal.

One more thought -- in the Johnson and Clinton impeachments, the president came up with a defense team that arguably outmatched the House managers in the Senate trial (Nixon's lawyers might have been good, but they were hobbled by the fact that they were kept in the dark by their client).  The same thing could happen this time unless Speaker Pelosi is careful to pick the most able lawyers in the House.