On January 20, 2020, President Donald Trump’s defense team filed his trial brief. Michael Gerhardt, one of the country’s preeminent impeachment scholars, rightly called it “fake law.” Here I will focus only on two of its more egregious constitutional claims: (1) presidents may be impeached only for violations of “known and established law” and perhaps only for crimes, and (2) impeachment for “abuse of power” is “made-up,” “unprecedented,” and unconstitutional.
“High Crimes & Misdemeanors” Does Not Require Proof of a Crime
The president’s brief expressly contends that the constitutional phrase “high crimes and misdemeanors” embraces only violations of “known and established law,” but intimates a more restrictive limitation, namely that the law violated must be criminal. Despite the studied ambiguity, the latter refinement seems to be a central part of the president’s overall theory inasmuch as Alan Dershowitz is slated to make the president’s constitutional case, and he has stated repeatedly, to the New York Times and elsewhere, that he will argue impeachment requires proof of crime or “crime-like conduct.”
So let’s begin there.
The contention that impeachment requires criminal (or crime-like) conduct is constitutional crabgrass. Virtually every impeached official makes the argument. They are always wrong. But not even regular treatments with logic and heaps of precedent can stop the insidious weed from reappearing in every impeachment spring. Thanks to Professor Dershowitz, we must now do the weary work again.
The British Parliament invented impeachment in the 14th Century, primarily as a legislative counterweight against abuses of royal power. Because Parliament couldn’t impeach the monarch, it restrained the crown by impeaching and removing powerful subordinates.
Britain has never had a written constitution, nor did Parliament ever pass a statute defining the conduct for which one might be impeached. Rather, over centuries, Parliament impeached royal officials for a variety of official misbehavior, and beginning in 1386, often described that behavior as “high crimes and misdemeanors.” Critically, although some of the conduct Parliament deemed impeachable fell within existing criminal laws, a great deal of it most certainly did not.
Parliament impeached officials for a striking array of abuses of office, including military mismanagement (Lord Latimer, 1376; the Earl of Suffolk, 1386; the Duke of Buckingham, 1626; and the Earl of Strafford, 1640), neglect of duty or sheer ineptitude (Attorney General Henry Yelverton; Lord Treasurer Middlesex, 1624; the Earl of Clarendon, 1667; Lord Danby, 1678; and Edward Seymour, treasurer of the Navy, 1680), and giving the sovereign bad advice, especially about foreign affairs (William de la Pole, 1450; Lords Oxford, Bolingbroke, and Strafford, 1715).
By the time of the American Revolution, the colonists were well aware that “high crimes and misdemeanors” was a term of art employed virtually exclusively in impeachment and that it embraced a wide variety of non-criminal official misconduct. I lay out the evidence on both points at length in my book. But for the present consider only two incidents:
First, in 1774, just before the American Revolution, the Massachusetts colonial assembly impeached Chief Justice Peter Oliver for the sin against colonial autonomy of accepting the salary prescribed by Parliament for colonial judges instead of the stipend voted by the assembly. This was obviously no crime (nor crime-like), yet the assembly described his conduct in the articles of impeachment as “certain high crimes and misdemeanors.” The Oliver case was famous throughout the colonies. It was a primary impetus for the complaint against King George written into the Declaration of Independence that, “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”
Both the facts of the Oliver case and the description of his conduct as “high crimes and misdemeanors” were well known to men who later participated in drafting and ratifying the Constitution. Nathaniel Gorham voted for Oliver’s impeachment in the Massachusetts assembly and later served as Chairman of the Committee of the Whole at the constitutional convention. Seventeen other men both voted on the Oliver impeachment and served as delegates to the Massachusetts ratifying convention.
Second, when the Constitutional Convention convened in Philadelphia in May 1787, the English-speaking world was riveted by the commencement in London of parliamentary impeachment proceedings against Warren Hastings, governor general of Bengal. The charges against Hastings were, from beginning to end, allegations of abuse of his official powers, but none were considered indictable crimes in English law. Edmund Burke, who prosecuted Hastings, said the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”
The American framers meeting across the sea took note. As the convention neared its close, the draft definition of impeachable conduct was limited to “treason and bribery.” George Mason objected, saying:
Why is the provision restrained to treason and bribery only? Treason, as defined in the Constitution, will not reach many great and dangerous offenses. Hastings is not guilty of treason.
Mason demanded that the definition of impeachable conduct be expanded, and proposed adding “maladministration.” When that was objected to, he suggested “high crimes and misdemeanors,” which was readily accepted. Mason wanted an impeachment provision that would include the kinds of non-criminal abuses of power charged against Hastings. By inserting the very phrase that Hastings’ accusers employed in the articles of impeachment against him, Mason achieved that objective. An effort and an outcome that was well understood at the time.
In sum, when the Framers wrote “high crimes and misdemeanors” into the American constitution, they all knew they were employing a phrase that had been used in both England and America to describe obviously non-criminal official conduct. But proof of the non-criminal character of “high crimes and misdemeanors” rests only partly on the Framers’ familiarity with its history and traditional meaning. Far more important is how the phrase fits into the larger constitutional structure.
The Constitutional Structure Proves Impeachment Is Not a Criminal Process
A key point about British impeachments is that, although conviction did not require proof of conduct constituting either a statutory or common law crime, Parliament could, and often did, impose punishments that in modern times would be restricted to criminal courts – imprisonment, property forfeiture, crippling fines, banishment, even death.
Some parliamentarians were troubled by inflicting such harsh consequences for conduct not previously defined as criminal, and often not actionable at all in ordinary courts. Therefore, the House of Lords sometimes baulked at convicting those the Commons impeached. Some such defendants went free altogether. On other occasions, if the defendant was thought particularly dangerous to constitutional order, Parliament simply transformed the impeachment into a bill of attainder (which required no formal proof of wrongdoing) and ordered the defendant executed anyway. More to the present point, Parliament viewed impeachment as a necessary weapon against royal tyranny and the abuses of royal favorites; so it went right on impeaching people for non-criminal conduct, and calling that conduct “high crimes and misdemeanors.”
These features of British state trials presented the American framers with a problem. On the one hand, the delegates decided they needed a mechanism other than elections for removing a corrupt or demagogic president. On the other, they were determined to bar congressional majorities from imprisoning, impoverishing, or killing their political enemies using bills of attainder or ex post facto laws (legislation that criminalizes conduct after it occurs). So they arrived at an elegant compromise.
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
The result was to completely decouple impeachment from ordinary criminal law. Impeachment can remove a federal officeholder and perhaps ban him or her from holding federal office in the future, but that is all. Any punishment of the criminal kind can only be imposed by a court in an entirely separate proceeding.
But that created a different problem. Immediately after he noted that treason and bribery wouldn’t cover Warren Hastings’ offenses, George Mason went on to say: “As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachment.”
How could bills of attainder possibly have “saved the British constitution”? Mason, a careful student of British constitutional history, knew that attainder had on several pivotal occasions facilitated removal of officials who had broken no existing law, but were nonetheless dangerous to constitutional order. Without recourse to attainder, the new United States might be vulnerable to such persons.
Mason’s straightforward solution for the gap created by the abolition of bills of attainder was to expand the definition of impeachable conduct by inserting the old parliamentary phrase “high crimes and misdemeanors.” That phrase was doubly felicitous. On the one hand, it transplanted to America the case-by-case, common law process of defining impeachable conduct that had for centuries permitted Parliament to make a political judgment about whether an officeholder’s behavior posed a threat to constitutional order requiring his removal. On the other hand, the phrase placed rough boundaries on impeachment in the form of centuries of British precedent.
At all events, Mason’s colleagues clearly saw impeachment as embracing a variety of non-criminal abuses of presidential power. These included abuse of the pardon power (Madison and George Nicholas), violation of the foreign emoluments clause (Edmund Randolph), convincing the Senate to ratify a treaty that “violated the interest of the nation” (Madison), and “wanton removal of meritorious officers” (Madison). And, of course, Alexander Hamilton in Federalist 65 famously described impeachable offenses as essentially “POLITICAL [his caps], as they relate chiefly to injuries done immediately to the society itself.”
Centuries of American practice
Since the ratification of the Constitution, multiple American officials have been impeached for non-criminal conduct. In 1797, Senator William Blount was impeached on five articles for a scheme to give Great Britain control of Spanish holdings in Florida and Louisiana. The first of the articles alluded obliquely to violations of the Neutrality Act, which if charged in a court might have been a crime, but the other four articles alleged no conduct even arguably criminal. Blount was acquitted, but only because the Senate seems to have concluded that senators are not “civil officers” subject to impeachment.
Federal judges have been impeached and some convicted and removed for non-criminal behavior. The first federal official both impeached and convicted was Judge John Pickering, whose offenses were making egregiously erroneous legal rulings, being intoxicated on the bench, and taking the name of the Supreme Being in vain. The President’s brief observes (citing me) that the standard for impeaching judges is generally thought to be somewhat different than that for presidents because they hold their offices “during good behavior.” That is true, but irrelevant to the question of whether criminality is required. For both judges and presidents, the Senate must find “treason, bribery, or other high crimes and misdemeanors.” For both, the issue is not whether the charged conduct violates a statute, but whether it is fundamentally incompatible with the constitutional duties of the office.
The president’s brief declaims that “every prior presidential impeachment in our history has been based on violations of … criminal law.” Even if that were true, it would be a pitifully weak argument for the proposition that presidential “high crimes and misdemeanors” are restricted to crime. Exactly two prior presidents, Andrew Johnson and Bill Clinton, have actually been impeached by the House. Trump’s argument is rather like saying that the third defendant prosecuted under a new armed robbery statute is immune because he used a gun while the two prior defendants used knives.
In any case, the president’s claim is false. Andrew Johnson was impeached in significant part for non-criminal conduct. The first nine articles did charge violations of the Tenure of Office Act, a technically criminal statute. But the tenth and eleventh articles charged non-criminal misconduct. Crucially, the eleventh article charged that Johnson attempted to prevent implementation of reconstruction legislation passed by Congress in March 1867, and thus violated Article II, Section 3, of the constitution by failing to “take care that the laws be faithfully executed.” Both Articles against President Trump allege violation of the very same “take care” clause. A key component of Article I is precisely that Trump, like Johnson, blocked implementation of valid legislation, in Trump’s case by illegitimately refusing to release to Ukraine congressionally authorized military assistance funds.
That Johnson was ultimately acquitted, by one vote, cannot alter the fact that, contrary to the President’s claim, he was impeached for non-criminal conduct. Nor does it matter, as Professor Dershowitz is expected to contend, that Johnson’s defense team argued that impeachment requires crime. Johnson was acquitted for multiple reasons — questions about whether the Tenure of Office Act was constitutional and whether it even applied to the official Johnson fired; dislike of Ben Wade, the man who would have become president if Johnson were convicted; private assurances by Johnson that he would moderate his behavior if acquitted; and even possible bribes. But no serious student of the matter has ever contended that Johnson escaped because the Senate thought “high crimes and misdemeanors” required a crime.
A century after Johnson, Richard Nixon resigned rather than face impeachment on articles approved by the House Judiciary Committee. Those articles contained allegations of both criminal and non-criminal behavior, and the Committee issued a report firmly concluding that crime was not a requirement for impeachment. Even in the Clinton affair, although the essence of the case was perjury and obstruction of justice, the Republicans who drafted the articles carefully avoided alleging that Clinton violated any criminal statute. They realized that the presence of a criminal violation is a useful benchmark of seriousness, but is not a requirement for a high crime or misdemeanor. (And several of the Republicans who voted for Clinton’s impeachment on the basis of those articles happen to be in the Senate today)
Impeachable offenses need not be violations of “established law,” but Trump’s offenses are
Perhaps recognizing the morass into which Professor Dershowitz will soon be marching, the president’s brief asserts as a second line of defensethat “the Framers restricted impeachment to specific offenses against ‘already known and established law.’” Even here they are wrong. In any case, the conduct alleged in the House articles easily satisfies this standard.
The president’s brief places immense reliance on William Blackstone, the justly famous author of the 18th Century treatise, “Commentaries on the Laws of England,” and in particular on a single quote: “an impeachment before the lords by the commons of Great Britain, in parliament, is a prosecution of the already known and established law.”
The obvious problem is that Blackstone was an English author writing a treatise about English law and the British parliament. As noted above, Great Britain had no written constitution and Parliament never passed a statute defining the boundaries of impeachable conduct. Instead, when acting in its quasi-judicial capacity in impeachments, Parliament did what common law judges do – it decided the cases before it and developed a common law of impeachment, a lex parliamentaria. And, crucially for us, it adopted “high crimes and misdemeanors” as a general descriptor of the various conduct the law of parliament had found impeachable.
Blackstone was obviously not saying that Parliament could impeach people only for ordinary crimes or violations of existing statutes, or even violations of law created by the decisions of ordinary judges. Indeed, the point of having impeachment was largely to address political cases that did not fall under ordinary law. And by the 1700s, Parliament had been using it for that purpose for centuries. All Blackstone was saying when he spoke of impeachment as prosecution of “known and established law” was that Parliament could impeach for violations of the lex parliamentaria expressed in the phrase “high crimes and misdemeanors.”
Far more importantly, in the United States, which has a written constitution, Blackstone’s admonition is superfluous. The constitution is the “known and established law.” All of it. Particularly the parts that limit the president’s authority and create mechanisms by which co-equal branches are to check each other’s powers. Therefore, a president who ignores the general Article I power of Congress to appropriate and control the expenditure of federal funds violates “known and established law.” As does a president who flatly refuses to respond to congressional requests for information in the exercise of its “sole” power of impeachment.
Trump’s argument boils down to the absurd proposition that “high crimes and misdemeanors” must include a violation of some federal statute, but that a direct attack on the fabric of the U.S. Constitution itself is not impeachable unless it also happens to violate one of those statutes. (As it happens, Trump did violate a number of statutes, including the Impoundment Control Act and the federal bribery statute, which should not escape our attention.)
Abuse of Power
The brief’s arguments about criminality and breaches of established law merely set the table for the final bit of constitutional nonsense – the argument that inclusion of abuse of power among the impeachable “high crimes and misdemeanors” is an “unprecedented,” “made up” theory. As the foregoing discussion illustrates, this so brazenly wrong that it would be comical if the occasion were not so solemn.
Impeachment was invented as a remedy for abuses of power. The very first set of impeachments, in 1376, included that of Lord Latimer, who was alleged by the House of Commons to have “notoriously accroached royal power,” meaning that he either misused power delegated to him by the Crown or claimed for himself powers properly belonging to the Crown. For the next four hundred years, Parliament wielded impeachments against the Crown’s powerful minions when they misused their powers of office, either for personal benefit or to abet the dictatorial tendencies of the Crown.
In 1787, fear of presidential abuse of power was the reason the American Framers wrote impeachment into our constitution. They added “high crimes and misdemeanors” to the list of impeachable offenses because it covered abuses of power like those of Warren Hastings. And ever since abuse of power has been universally understood to be the quintessence of an impeachable offense. But don’t take my word for it.
In 1926, the House Judiciary Committee impeached U.S. District Judge George English. In its report on the matter, it reviewed the authorities and concluded:
Thus, an official may be impeached for offenses of a political character and for gross betrayal of public interests. Also, for abuses or betrayals of trusts, for inexcusable negligence of duty [or] for the tyrannical abuse of power.
Mr. Trump’s lawyers have impeachment exactly backwards. Impeachment is in the Constitution, not because the Framers fretted that someday a president might break a law by, for example, feloniously lying about an adulterous affair, but because they feared that a president might burst the paper bonds of their constitution and employ the powers it conferred upon him to destroy the delicate republican balance. That is the public ill the impeachment power was designed to remedy.