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Q&A with Cass Sunstein on “Impeachment: A Citizen’s Guide”

Cass Sunstein’s new book, “Impeachment: A Citizen’s Guide,” published by Harvard University Press, is “a love letter to the United States of America,” in the words of its author. Cass is a leading scholar on the topic having published his first work on impeachment almost twenty years ago. The book offers a highly accessible, brilliantly thoughtful, and politically neutral analysis of what the Constitution means for our present moment and for generations that follow. Cass was generous enough to exchange his views with me on the toughest questions I could pose to him.

1. The relationship between impeachable offences and immunity from prosecution

GOODMAN: The Justice Department’s Office of Legal Counsel (OLC) has concluded that a sitting President is immune from criminal indictment while he is office. The OLC conclusion is predicated, in significant part, on the notion that an “alternative mechanism” exists: a President suspected of a most serious crime can be impeached instead and then prosecuted. In your analysis, however, a President cannot necessarily be impeached for many serious crimes unless they directly relate to an abuse of official power. If you are correct, does it mean at least one of the central reasons that the OLC gives for its conclusion that the President cannot be indicted is wrong?

SUNSTEIN:

Yes, it does. I agree with OLC’s conclusion, on Article II grounds, but there is a gap: Some serious crimes are not a legitimate basis for impeachment, but still, a sitting president cannot be prosecuted for those crimes.

2. Impeachable offenses: whether limited to abuses of power

GOODMAN: You conclude that impeachable offenses are generally limited to crimes that involve an abuse of official power. A President’s engaging in financial crimes and tax evasion, for example, would not count because they involve “private misconduct.” You draw this conclusion, in part, from the idea that we should read the words “against the United States” into the Impeachment Clause: “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” against the United States. (Your argument is that the prior draft of the Impeachment Clause included these words and was removed only for stylistic, not substantive, reasons.)

Let’s assume you’re correct that “against the United States” should be read into the clause. Shouldn’t “against the United States” in the Impeachment Clause be read in parity with the Pardon Clause which reads: “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” The phrase “against the United States” in the Pardon Clause just means an offense of a federal nature because it is committed, in essence, against the nation as a whole. That is, the President has the power to pardon any federal offence (and it is not limited to offences involving abuses of power). What’s more, the Pardon Clause cross-references the Impeachment Clause. As a result of all this, isn’t the more natural and more sensible reading of “against the United States” in the Impeachment Clause the same as the Pardon Clause: it is meant simply to convey this category is akin to a national offence, not that “against the United States” means it must involve an abuse of power?

SUNSTEIN:

A clarification: I am writing this, right now, in Concord, Massachusetts, from a room in a house built in 1763, where I am lucky enough to live. (Some of the ceilings are low!) The house was one of the places where British troops came on April 19, 1775. Munitions were held here. I am looking, right now, at the very door to which British soldiers came, on that day. They threatened to burn the house down, but it survived.

The book was inspired by this house, and by Ephraim Wood, an unknown American hero, who built it. With that inspiration, I have been immersed in the eighteenth century (improbable but true), and my conclusions are based on what can be found there. One thing I learned is that impeachment must be understood in light of the American Revolution; the Declaration of Independence is a bit like Articles of Impeachment. At the constitutional convention, the whole idea of a powerful president was immensely controversial – to many people, it seemed a betrayal of the principles for which the Revolution had been fought. (The fetus of monarchy, some called it.) Impeachment was a necessary safeguard. Without impeachment, no ratification (I think).

With respect to your question: On abuse of power as a prerequisite for impeachment, my interpretation of the impeachment clause and its scope comes from essentially everything in the framing and ratification debates. Impeachment was universally understood to be a response to abuses of official power. Hamilton in The Federalist Papers is just one of numerous examples.

So I am not reading “against the United States” into the clause. More modestly: I am just reading high crimes and misdemeanors as they were understood at the time.

In the clever argument above, the use of the Pardon Clause seems to be pretty extravagant – if I may say, the kind of thing that gives structural arguments a not-so-good name.

3. When, if ever, “private misconduct” becomes an “abuse of official power”

GOODMAN: You distinguish between crimes involving private wrongdoing (such as assault, tax evasion) and crimes involving “abuse of official power”—and essentially only the latter are impeachable offenses on your view.  What if a president engages in a serious crime involving private wrongdoing because he knows he will be protected by his position of power? How easy is it to distinguish between abuses of power and private acts?

SUNSTEIN:

If a president jaywalks, knowing that he will be protected, there’s no impeachable offense. If a president steals a book from a bookstore, knowing that he will be protected, there’s no impeachable offense. In some cases, it might not be so easy to distinguish between abuses of power and private acts, but mere knowledge that your official position will protect you doesn’t get you into the category that concerned Hamilton, Madison, and others, or that got farmers in Concord, Mass. to take up arms on April 19, 1775. Think about what the American Revolution was fought for, and you’ll have a good clue of what impeachment is all about.

4. Perjury and obstruction of justice

GOODMAN: On your view, perjury and obstruction of justice (and even if it included a President’s use of his advisers to promote such falsehoods or obstruct proceedings) would not necessarily amount to an impeachable offense. For you, what matters is the underlying activity for which a President is engaging in perjury and obstruction of justice.  If he lied in a matter involving a traffic accident that would not count. You write that “a cover-up of activity that does not amount to a high crime or misdemeanor may not itself amount to a high crime or misdemeanor” and you have previously written, “Probably the best general statement is that a false statement under oath is an appropriate basis for impeachment if and only if the false statement involves conduct that by itself raises serious questions about abuse of office.”

But what if the underlying activity or conduct does not involve the President himself? You have previously written, “it does not make much sense to say, for example, that an American president could be impeached for false statements under oath in connection with a traffic accident in which he was involved, or that a false statement under oath, designed to protect a friend in a negligence action, is a legitimate basis for impeachment.” What do you think of these cases?:

A) A president makes a false statement under oath designed to protect a friend who engaged in collusion with a foreign nation to interfere in the presidential election, even though the President himself was never involved in any such collusion
B) A president makes a false statement under oath designed to protect a friend who lied to the FBI or to Congress
C) A president makes a false statement under oath designed to protect a friend engaged in money laundering with funds from a foreign power

SUNSTEIN:

In case A), we have an effort to protect a very grave offense, triggering some of the same concerns that gave rise to the impeachment clause. It isn’t quite an abuse of presidential power, but it is an abuse of the public trust in the specific, relevant sense (see Hamilton in the Federalist), and I think it’s impeachable.

Case B) should turn on the substance. Suppose a friend lied to the FBI about whether he used drugs in high school, and the president lies about that too. Impeachment? Nope.

On case C), we would probably want more details to answer. Is the foreign power an enemy of the United States?  Is it Canada? If it’s Canada, it’s bad to lie, but not impeachable.

5. Actions prior to assuming office – two scenarios

GOODMAN: On your view, actions that a President took before assuming office cannot be an impeachable offense, but you include an exception if a President “procures office by objectionable means.” for example, “as a result of a secret plan with a nation that is unfriendly to the United States.” But what if the President engaged in such a secret plan but it did not actually effect the outcome of the election (i.e., she did not procure office as a result of it)? Imagine, for example, the President engaged in objectionable means to win California; she loses California but handily wins the Electoral College in any case. Or imagine the President engaged in a secret plan with a foreign nation to interfere in the election but never actually thinking he could win the primary or general election?

SUNSTEIN:

My view here builds directly from debates at the Constitutional Convention. If a candidate has a secret plan with a foreign nation, and wins, those debates are best read to say: Impeachable. They support that conclusion in both of your scenarios, which seem to be variations on the core case (procuring office by objectionable means). The differences in the two scenarios shouldn’t make a difference.

GOODMAN: You conclude that impeachable offenses are generally limited to crimes that involve an abuse of official power. You make an exception, however, for a President who commits murder while in office, “on the theory that murder is an exceptionally serious crime and the president is not likely to be able to govern after committing such a crime.” But why should that exception be limited to committing the act while in office? If the President committed murder on November 1 before the election, wouldn’t its later discovery also interfere with his ability to govern, and like you say, “[t]he Constitution would not make a lot of sense if it did not permit the nation to remove murderers from the highest office in the land”?

SUNSTEIN:

Interference with ability to govern is not the constitutional test. A high crime and misdemeanor is the test. Murder before assuming office just isn’t a high crime and misdemeanor in the constitutional sense.

It’s tempting to draw a bright line, on the basis of the eighteenth-century sources, and say that if the president commits an offense that has nothing to do with abuse of office – say, stealing, assaulting, even murdering (assuming that there is no use of the apparatus of government) – he just isn’t impeachable. But for murder, that seems crazy. See below.

6. Impeachment for egregious private misconduct

GOODMAN: You conclude that impeachable offenses are generally limited to crimes that involve an abuse of official power. In your book you make an exception for murder, and in earlier writing you also make an exception for rape. But what separates murder and rape from other acts such as sexual assault, battery (imagine a President, in a racist tirade, bludgeons a person), child pornography, massive corruption in private businesses, or tax evasion on a grand scale? It seems the answer turns on subjective and contextual evaluations—including whether the crimes are so egregious that “the president is not likely to be able to govern” effectively once the crime is discovered and an evaluation of whether the Constitution should allow such a criminal to remain in the highest office. Accordingly, isn’t the ultimate determination of whether those crimes are serious enough best left to the people’s representatives in Congress where, as you write, the institutional safeguards are so great that impeachment and conviction can occur only if there “something close to a national consensus”?

SUNSTEIN:

Again: For better or for worse, I have been immersed in the eighteenth-century debates, and not trying to figure out what’s best as a matter of policy or principle. (We can blame or credit Ephraim Wood’s house! I do have a defense, in the book, of originalism for impeachment, and I’m in the midst of developing a much longer defense for a law review.) Let’s just stipulate that we want to follow the original meaning. What then, with respect to your good question?

The largest data point is actually a lot of data points: Every prominent example of impeachable offenses, during the convention and ratification debates, and also shortly thereafter, involved abuse or misuse of official authority. That was their focus. The absence of any serious reference to any private crime speaks volumes. It suggests that the underlying concern was about what a president could or might do with presidential authority. One more time: All this has to be seen through the lens of the American Revolution itself.

A small data point, a kind of smoking gun, is one view of one prominent commentator, saying private crimes just aren’t impeachable – ever. I wouldn’t go to town with that, because it’s just one person, but there we are.

A principled, clean, historically grounded position would say that with the largest data point, we really need abuse or misuse of official authority (which would include egregious neglect of duty, eg six months vacation in Paris). But the case of murder suggests that the clean position is a bit nuts: Suppose that the president murders, with his own gun, three people who bullied him in high school. We probably have to say that he’s impeachable. It’s unlikely that the founders and ratifiers would disagree.

But having said that, we would (I think) go badly wrong to start thinking about impeaching a president for battery, tax evasion, perjury, and so forth – if we did, the constitutional settlement would unravel. We do better to follow the orienting principle (abuse or misuse of distinctly presidential authority) and to deal with the admittedly extreme case of murder if and when we get there. True, that isn’t the tidiest solution.

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About the Author

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, Former Special Counsel to the General Counsel of the Department of Defense (2015-2016) Follow him on Twitter (@rgoodlaw).