Tuesday in Mooseville – The “I” Word 8/28/18

Today’s post was prompted by two tweets. First, this one:

OMG, this is SO great!!!!
We republished an excerpt of this on Lawfare recently, but people, read this book. It is short. It is brilliantly written in first rate layman’s prose. And it is the greatest thing ever written on the subject. Here’s the excerpt: https://t.co/Yi8kcRyryc https://t.co/vB1KTdU5kr

— Benjamin Wittes (@benjaminwittes) August 23, 2018

Needless to say, I downloaded the handbook (only 67 pages) on my Nook immediately. The second motivation for this post was this tweet:

Help is on the way https://t.co/RPr3Bpflzm

— Seth Abramson (@SethAbramson) August 26, 2018

It may be unpopular to say it, but Rep. Swalwell is 100% correct. Of course, it’s The Hill, so it’s necessary to go beyond the clickbait headline to read this:

“We don’t want to be as reckless with the facts as he is,” he said. “I think having thorough investigations, putting forth an impenetrable case, doing it in a bipartisan way is the proper way to do this, but we’re not there yet.” Swalwell: We don’t have enough evidence to impeach Trump

So what do we need to know about the process of impeachment that we think we know, but may not really know?
In 1974, when talk of impeachment of President Nixon was heating up, Charles L. Black, a leading constitutional scholar of the twentieth century, wrote a brief handbook about the procedures and responsibilities of impeachment. Written for the layperson, it explained the procedures, the historical basis for the wording in the Constitution, and the potential applications to particular problems and/or charges during the impeachment process. Some of his suggestions are outdated; he, for instance, wrote in the era before C-Span and expressed the strong belief that television, radio, and photography should not be present during the proceedings (although reporters should be present). His reasoning was threefold: 1) the risk of public spectacle is increased; 2) the mere act of observing changes the behavior of those being observed; and 3) the chances are increased for the development of public pressure for some given result. Although his opinions have merit, that ship has long since sailed.

The House has “the power to bring charges of the commission of one or more impeachable offenses.” (Black, p. 18) How do they get to that point?

In some cases, the House has

employed one of its committees (usually the Judiciary Committee) to investigate and report on charges that might lead to impeachment…The committee to which this task is confided must hear evidence–great masses of it in a complicated case. At this stage, it seems certain that no technical “rules of evidence” apply. (Indeed, I shall argue later that they do not apply even in the Senate trial.) Evidence may come from investigations by committee staff, from grand jury matter made available to the committee, or from any other source. (Black pp. 18-19)

In the Clinton impeachment, the Judiciary Committee did not conduct its own investigation, but instead relied on the work of Independent Counsel, Ken Starr. It seems clear from the following tweet, that if Democrats regain control of the House, investigations are likely. This is what Republicans anticipate:

“Axios has obtained a spreadsheet that’s circulated through Republican circles on and off Capitol Hill—including at least one leadership office — that meticulously previews the investigations Democrats will likely launch if they flip the House.”

The partial list via @axios: pic.twitter.com/CpElCtU2tW

— Ryan Goodman (@rgoodlaw) August 26, 2018

If, however, the Mueller report comes out sooner, rather than later to a Dem-majority House, a good portion of the investigating may already be done. As in 1998, the Mueller report could conceivably provide the basis for articles of impeachment.

Treason, bribery, and other high crimes and misdemeanors are listed in the Constitution as the categories of impeachable offenses. But what does that mean?

Charles Black dispenses with treason by restating the definition found in Article III, Section 3 of the Constitution and emphasizing that the American definition is very narrow. Even if the definition weren’t narrow (and therefore problematic for today’s circumstances), this restriction is even more daunting: “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

For the category of bribery, Black reminds the reader that bribery means taking as well as giving bribes, and this point is supported by the examples used at the Constitutional Convention. He adds that determining the states of mind of the giver and recipient is “all-important.” Because determining motive and intent are so hard to prove, bribery is not as straight-forward a category as one might first assume.

“Other high Crimes and Misdemeanors” is the most difficult-to-interpret category of offense, and Black tackles the definite things that can be said about this clause, while admitting “we will be left with an area of considerable vagueness.” (Black, p. 32) First, he reviews the record of the Constitutional Convention, which originally only provided for treason and bribery as categories for impeachment. Upon objection to limiting impeachment to these very narrow categories, delegate George Mason suggested adding “maladministration” so as to extend the power of impeachments. James Madison pointed out that “So vague a term will be equivalent to a tenure during pleasure of the Senate.” (Black p. 32) In other words, Madison was concerned that if maladministration became an impeachable offense, it’s very vagueness would enable impeachment to become a highly-partisan act, brought on anytime the president did something with which the House and Senate disagreed. Impeachment would become the American equivalent of a British vote of no confidence. In response to Madison’s objection, maladministration was withdrawn and replaced with “other high crimes and misdemeanors” and readily approved by a vote of 8-3. According to Black, the whole discussion and subsequent vote probably took little more than five minutes. By replacing “maladministration” with “other high crimes and misdemeanors,” it is clear from the record of the Constitutional Convention that mere incompetence or policy disagreements were not suitable grounds for charges of impeachment.

So a crime has to be committed in order for charges of impeachment to be brought. Right?
Well, no (as long as you’re not channeling Alan Dershowitz). As Black explains, an element of criminality may exist without the presence of a crime. He provides several “extreme” examples to prove his point; I will provide one of them:

Suppose a president were to announce that he would under no circumstances appoint any Roman Catholic to office and were rigorously to stick to this plan. I am not sure that this conduct would be punishable as crime, though it would clearly violate the constitutional provision that “no religious test” may ever be required for holding federal office. I cannot believe that it would make any difference whether this conduct was criminal for general purposes; it would clearly be a gross and anticonstitutional abuse of power, going to the life of our national unity, and it would be absurd to think that a president might not properly be removed for it. (Black, p. 36)

Conversely, not all crimes are impeachable offenses. Using [very 1974] examples which he maintains would produce “absurdities” if considered impeachable offenses, he states,

Suppose a president transported a woman across a state line or even (so the Mann Act reads) from one point to another within the District of Columbia, for what is quaintly called an “immoral purpose.” Or suppose a president did not immediately report to the nearest policeman that he had discovered that one of his aides was a practicing homosexual–thereby committing “misprision of a felony.” Or suppose the president actively assisted a young White House intern in concealing the latter’s possession of three ounces of marijuana–thus himself become guilty of “obstruction of justice.” (Black, p. 37)

Black proposes an affirmative approach to the meaning of “high crimes and misdemeanors” by following a rule of legal construction, eiusdem generis. The phrase means “of the same kind”: “…when a general word occurs after a number of specific words, the meanings of the general word ought often to be limited to the kind and class of things within which specific words fall.” (Black, p. 38) By this standard, the “kind” to which treason and bribery belong must extend to the “kind” of high crimes and misdemeanors.

They are offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books. (Black, p. 38)

Black recognizes that these guidelines are still rules of interpretation and will not always work. Murder, for example (whether on Fifth Avenue or not), would not necessarily subvert the political or governmental process, but would certainly be grounds for impeachment. The underlying principle, beyond the illegality, would be the obvious stain on the presidency and the danger to the public order.

This all sounds so hard. So in the case of the Current Occupant, what might some charges of impeachment look like?
Before I leave Charles Black, I should point out that impeachment is supposed to be hard. It’s why the charges are voted upon in the House and then forwarded to the Senate, where the trial verdict requires that 2/3 assent. As Black says regarding impeachment, the appropriate approach is “as one would approach high-risk major surgery, to be resorted to only when the rightness of diagnosis and treatment is sure.” (Black, p. 15)

For the current situation, I turn to Lawfare and their August 2017 article, It’s Time: Congress Needs to Open a Formal Impeachment Inquiry.

In our view, Congress should be evaluating at least three baskets of possible impeachable offenses. There is a good deal of overlap between these classes of misconduct, but they are sufficiently distinct to warrant individual attention:

• His abuses of power, most obviously exemplified by his conduct with respect to the investigations into his campaign’s collusion with Russia;

• His failures of moral leadership; and

• His abandonment of the basic duties of his office.

At the extreme, each type of misconduct not only denigrates the presidency but also fundamentally undermines the security of the United States.

Although the article provides ample examples as to what acts might fall into each “basket,” a few more recent examples come to mind. Abuse of power?

Neverending abuse of power https://t.co/cX6KM9Mcp8

— Peter A. Shulman ???? (@pashulman) August 27, 2018

Failures of moral leadership?

The phrase has an ignominious history. Why does Trump keep using it? https://t.co/queTcdSQ8c

— Brennan Center (@BrennanCenter) August 26, 2018

Abandonment of basic duties?

As of Monday, the White House had yet to put forward the names of candidates for 204 of the 665 key positions that require Senate confirmation, according to the Partnership for Public Service, a nonpartisan group that advises incoming administrations.

The longest list of empty desks waiting to be filled is at the State Department, where more than 40 top jobs are vacant. Dozens of ambassadors appointed by the Obama administration were fired by Trump on Inauguration Day and have yet to be replaced.
The unfilled jobs also include key positions throughout the executive branch charged with rooting out waste, fraud and abuse. Despite Trump’s campaign vows to “drain the swamp,” his administration has been slow to hire agency watchdogs, known as inspectors general, tasked with reviewing the way the government conducts its business and spends taxpayers’ money.
After 500 days, hundreds of White House jobs remain unfilled by Trump administration (The charts at this link are particularly helpful, but I was unable to get them to embed correctly.)

There are two last points I think are important to consider, particularly in light of the Ryan Goodman tweet about the Axios’ list near the beginning of this post. I think it’s highly likely that list is reasonably accurate for potential investigations, but it doesn’t necessarily mean it is also a list for potential impeachment charges. Baker, for one, makes the argument that in terms of the Constitution, Congress has far more power than the Executive, and there are steps Congress could and should take through its lawmaking role, short of impeachment, to limit any excesses by a president (without passing unconstitutional ex post facto laws). Of course, Baker wrote in an era where the two parties could and would occasionally work together; now it seems unlikely that such laws would pass or that the Current Occupant would sign them. But Baker is not alone, then or now, in making this argument. In a July 2017 Lawfare article, this point is succinctly made as it relates to the Emoluments Clause (To Impeach a President: Applying the Authoritative Guide from Charles Black):

This is the central difficulty with claiming that Trump’s refusal to divest from his massive business empire is by itself an impeachable offense. The assertion seems at odds with the House of Representatives’ refusal to so much as demand the disclosure of Trump’s tax returns. That’s not to say that Trump cannot be impeached for specific improper actions taken to the clear detriment of U.S. interests in connection with his business empire if such actions later come to light. I am merely explaining that Congress’s cowardice and refusal to act in curbing the president does not simply undercut its ability to cry foul when he goes too far; this failure actually shifts the line demarcating “too far”—or erases it altogether.

The final caution about viewing the Axios’ list as an impeachment guide is relative to the presidential responsibility for the actions of subordinates (e.g. Steve Mnuchin on the list; also see Wilbur Ross) and is also addressed by Baker.

Here I think we have to remember it is the president who must be guilty of “high Crimes and Misdemeanors.” A simple attribution to him of everything done by persons working under him is totally incompatible with the flavor of criminality, of moral wrong, in the quoted phrase. No chief of any considerable enterprise could pass such a test…At this point, however, the general law furnishes us with a valuable concept. When carelessness is so gross and habitual as to be evidence of indifference to wrongdoing, it may be in effect equivalent to ratification of wrongdoing. (Blake, p. 44)

If Dems take the House, I think there’s no doubt that formal impeachment inquiries are necessary and even overdue, since Republicans have been shirking constitutional responsibilities. But it’s just as important to realize that drawing up articles of impeachment is far more complex than many of us have ever considered, and even if passed in the House, face significant obstacles in the Senate. But only with Democrats modeling responsible governance do we stand any chance of reclaiming a government of the people, by the people, and for the people.

For those wishing to do a deeper dive
Lawfare provided Chapter Three of Black’s book, Impeachment: A Handbook here: The Impeachable Offense

At the request of Lawfare, Jane Chong wrote an accompanying article at the time the chapter was reprinted. It can be found here: To Impeach a President: Applying the Authoritative Guide from Charles Black

Finally, barely a month after Jane Chong wrote her article, which effectively said, “not yet”, an article in Lawfare, co-authored by Jane Chong and Benjamin Wittes, said “now.” The full article is here: It’s Time: Congress Needs to Open a Formal Impeachment Inquiry