The Peoples’ Constitution: Impeachment and Goldilocks – Part Two

By Ben Lenhart

            Separation of Powers lies at the heart of our Constitution, and impeachment is one of the most important ingredients of separation of powers. Both separation of powers and impeachment serve the same ultimate goals: preventing any branch of government from abusing its power and ensuring that our government does not grow into a tyranny that threatens the fundamental rights and freedoms of all Americans. This two-part article lays out the key features of impeachment under our Constitution (and aims to do so while avoiding politics or partisanship). Part One described how the impeachment process works, how the Founding Fathers viewed impeachment, and the meaning of the key term “High Crimes and Misdemeanors.” Now this Part Two looks at actual examples of impeachment and ends with a review of potential impeachment issues arising out of the Mueller report concerning Russian interference in the 2016 Presidential Election.

Actual Examples of Impeachment: Goldilocks Part 2. 

President Johnson. In 1868, Andrew Johnson was impeached for refusing to follow a law that he believed (correctly, it turned out) was unconstitutional. The Senate then failed to remove Johnson from office, falling one vote short in the Senate vote.Congress disliked Johnson for many other reasons—particularly related to post-Civil War Reconstruction—but the grounds used for impeaching him were probably not valid.Because Johnson reasonably believed that his actions were lawful, he did not commit treason, bribery or High Crimes and Misdemeanors.

President Nixon: In 1974, articles of impeachment were drafted against Richard Nixon, largely focusing on his efforts to cover-up the break-in of the Democratic National Headquarters at the Watergate building. Because Nixon used the CIA and other levers of government in a massive and illegal effort to cover up the break-in, he most likely did commit impeachment offences and likely would have been impeached had he not resigned before the final impeachment vote.

President Clinton: In 1998, Bill Clinton was impeached for false statements and other “cover-up” efforts related to his affair with Monica Lewinsky. The Senate fell far short of the two-thirds vote needed to remove Clinton from office. Would the Founding Fathers have approved of his impeachment? While there are arguments on both sides, many believe that lying about an affair and encouraging others to lie—while certainlyreprehensible and wrong—did not rise to the level of a High Crimes and Misdemeanors because it was not an abuse of public office of the type contemplated by the Hamilton and the other Founders. But more than 200 congressmen disagreed and voted to impeach. What can be said is that in comparing the offenses committed by Nixon and Clinton, those of the former come closer to the kind of grave public wrongdoing that lies at the heart of the impeachment clause.

Other Impeachments: In addition to the two presidents noted above, 17 other federal officials have been impeached, including one senator, one cabinet member and 15 judges. Of these, only eight have been removed from office (although some resigned before the Senate could vote on removal). Altogether, in the 231 years since our Constitution was adopted, America has had only 19 impeachments of federal officials.

The takeaway: While Congress has the awesome power to impeach, they have used it sparingly. With a few important exceptions, these 19 impeachments reflect adherence to the Goldilocks balance—most governmental officials who were impeached had engaged in serious abuses of their public office, and the impeachment votes were based more on the merits and less on party-line politics.

It’s All Political: Anti-Goldilocks

Gerald Ford famously said that an impeachable offense is “whatever a majority of the House of Representatives considers it to be at a given moment in history.” While Ford was correct in one sense, he was also fundamentally wrong.

He was right that the House has the raw power to ignore the meaning of the Constitutional impeachment clause and the lessons of history, and instead vote to impeach for purely political reasons. It is also true that in the most recent presidential impeachment (of Bill Clinton), the impeachment votes largely tracked party lines.

However, Ford was wrong in a more fundamental sense. The constitutional meaning of impeachment is fairly well established, at least in broad strokes, and congressmen who ignore that meaning and vote to impeach for political reasons alone are violating the carefully crafted “Goldilocks balance” that governs the impeachment power in the Constitution, thereby weakening the separation of powers principle that is so vital to American freedoms.

The Mueller Report and President Trump

In Ken Starr’s report on the investigation into President Clinton, Starr was not shy—he came right out and said there was “substantial and credible information” that Clinton committed acts that could be grounds for impeachment.” In contrast, Robert Mueller’s report is more reserved: it does not take any side on the impeachment question, nor does it conclude that President Trump committed any crime or other conduct that would be grounds for impeachment. Instead, the Mueller report does two things: first, it states that the investigation “did not establish the Trump campaign coordinated with the Russian movement in its election interference actives.” Second it describes 10 areas of alleged conduct by Trump that may (or may not) constitute obstruction of justice.

Some argue that the first conclusion (no finding of Russian collusion), by itself, prevents any possibility of finding that President Trump obstructed justice. Without an underlying crime, the argument goes, there can be no obstruction. Others, including Mueller, disagree, and common sense suggests that a person can obstruct an investigation even if that person is innocent of the alleged crime being investigated. For example, if someone orders dozens of witnesses to lie to investigators, or destroys massive amounts of vital evidence, that should qualify as obstruction of justice regardless of the person’s guilt or innocence of the underlying crime.

Attorney General Barr concluded that none of the grounds cited by Mueller amounted to obstruction of justice by President Trump. For example, Barr argued that no action by a president to remove an executive branch official (such as the head of the FBI or the Special Counsel) can constitute obstruction because, under the “Unitary Executive” theory, the president holds all executive power, which includes absolute power to remove subordinate executive branch officials. If Barr is correct on this point (a point that Mueller disputes), this would mean that several areas of Trump’s conduct cited by Mueller (e.g., firing FBI Director Comey) would not be grounds for objection of justice, much less impeachment.

But Barr agreed that certain acts by a president—any president—such as hiding material evidence or encouraging witnesses to lie to investigators, could potentially amount to obstruction of justice. And Mueller alleges several areas of conduct by President Trump that arguably fall within these categories, such as, for example, Trump’s alleged efforts to get the White House Counsel to: (a) have Mueller fired, and then (b) deny that Trump asked him to fire Mueller. If these allegations—which President Trump disputes—were ever proven, they could potentially establish obstruction of justice. But that does not answer the impeachment question, because obstruction alone does not necessarily equate to a “high crime or misdemeanor” in the constitutional sense.

To answer this question (and assuming that one or more acts of obstruction of justice by President Trump were proven—an assumption that the president would vigorously dispute) one has to determine whether such acts by the president amount to grave abuse of public office. The “public” requirement would seem satisfied here because Mueller alleges conduct that was committed by the president using his presidential powers to influence other governmental actors. The hard question would be whether one act, or a small number of acts, of obstruction of justice, in the context where no underlying crime had been established, could be sufficiently serious or grave to constitute an impeachable offense. This may depend, in part, on facts yet to be developed by the ongoing investigations. In assessing these issues, the House will, hopefully, read the Constitution, understand the history and purpose of the impeachment clause and appreciate the Goldilocks balance on impeachment struck by the Founding Fathers.

Conclusion

Impeachment is an incredibly powerful tool, especially when involving the president. If used too much or too easily, it has the power to destroy the presidency. If used too little or too reluctantly, we risk allowing a tyrant to remain as the leader of our great nation and cause serious harm to our rights and freedoms. The Constitution strikes a careful balance between these two extremes, but it is up to Congress to avoid using impeachment for political purpose and instead to wield the impeachment power only for its intended purpose: impeachment of public officials, regardless of political affiliation, who engage in grave abuses of public office.

Ben Lenhart

Ben Lenhart is a Harvard Law School graduate and has taught constitutional law at Georgetown Law Center for more than 20 years. He lives with his family and lots of animals on a farm near Hillsboro.

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