Today, at the impeachment hearings, Prof. Jonathan Turley performed a great public and national service by eviscerating the Democratic theory of impeachment legally, logically and historically. I cannot wait to see if his decisive testimony is given half the prominence by the New York Times as the various headlines shouting about how an official would have done things differently if he or she were President. Unlike almost all of the testimony so far, Turley’s was based on facts and law, and addressed the issue at hand: is there any justification for impeachment proceedings?
It’s a wonderful and clear piece of scholarship that addresses several approaches to the matter that I had wanted to address, notably how the three previous impeachment efforts compare with this one.
Every citizen should read it all; of course, almost none will. The testimony is long, because it is thorough; I have edited it for ease of reading, eliminating footnotes. If you want to read the original document, it is here. Ethics Alarms is going to present this in several parts. Send that link to your smug impeachment-cheering friends, relatives and social media contacts. Tell them that unless they read it, you really don’t want to hear any more on the subject from them, because they want to remain ignorant.
I am proud—relieved?—to find that this serious and admirable scholar embraces many of the positions I have discussed here, though in far more detail and with considerably more authority.
Chairman Nadler, ranking member Collins, members of the Judiciary Committee, my name is Jonathan Turley, and I am a law professor at George Washington University where I hold the J.B. and Maurice C. Shapiro Chair of Public Interest Law. It is an honor to appear before you today to discuss one of the most solemn and important constitutional functions bestowed on this House by the Framers of our Constitution: the impeachment of the President of the United States.
Twenty-one years ago, I sat here before you, Chairman Nadler, and other members of the Judiciary Committee to testify on the history and meaning of the constitutional impeachment standard as part of the impeachment of President William Jefferson Clinton. I never thought that I would have to appear a second time to address the same question with regard to another sitting president. Yet, here we are. Some elements are strikingly similar. The intense rancor and rage of the public debate is the same. It was an atmosphere that the Framers anticipated. Alexander Hamilton warned that charges of impeachable conduct “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”2 As with the Clinton impeachment, the Trump impeachment has again proven Hamilton’s words to be prophetic. The stifling intolerance for opposing views is the same. As was the case two decades ago, it is a perilous environment for a legal scholar.
I appear today in my academic capacity to present views founded in prior academic work on impeachment and the separation of powers. My testimony does not reflect the views or approval of CBS News, the BBC, or the newspapers for which I write as a columnist. My testimony was written exclusively by myself with editing assistance from Nicholas Contarino, Andrew Hile, Thomas Huff, and Seth Tate explores the technical and arcane issues normally involved in an academic examination of a legal standard ratified 234 years ago. In truth, the Clinton impeachment hearing proved to be an exception to the tenor of the overall public debate. The testimony from witnesses, ranging from Arthur Schlesinger Jr. to Laurence Tribe to Cass Sunstein, contained divergent views and disciplines. Yet the hearing remained respectful and substantive as we all grappled with this difficult matter. I appear today in the hope that we can achieve that same objective of civil and meaningful discourse despite our good- faith differences on the impeachment standard and its application to the conduct of President Donald J. Trump.
I have spent decades writing about impeachment and presidential powers as an academic and as a legal commentator. My academic work reflects the bias of a Madisonian scholar. I tend to favor Congress in disputes with the Executive Branch and I have been critical of the sweeping claims of presidential power and privileges made by modern Administrations. My prior testimony mirrors my criticism of the expansion of executive powers and privileges. In truth, I have not held much fondness for any president in my lifetime. Indeed, the last president whose executive philosophy I consistently admired was James Madison.
In addition to my academic work, I am a practicing criminal defense lawyer. Among my past cases, I represented the United States House of Representatives as lead counsel challenging payments made under the Affordable Care Act without congressional authorization. I also served as the last lead defense counsel in an impeachment trial in the Senate. With my co-lead counsel Daniel Schwartz, I argued the case on behalf of federal judge Thomas Porteous. (My opposing lead counsel for the House managers was Adam Schiff). In addition to my testimony with other constitutional scholars at the Clinton impeachment hearings, I also represented former Attorneys General during the Clinton impeachment litigation over privilege disputes triggered by the investigation of Independent Counsel Ken Starr. I also served as lead counsel in a bill of attainder case, the sister of impeachment that will be discussed below.
I would like to start, perhaps incongruously, with a statement of three irrelevant facts. First, I am not a supporter of President Trump. I voted against him in 2016 and I have previously voted for Presidents Clinton and Obama. Second, I have been highly critical of President Trump, his policies, and his rhetoric, in dozens of columns. Third, I have repeatedly criticized his raising of the investigation of the Hunter Biden matter with the Ukrainian president. These points are not meant to curry favor or approval. Rather they are meant to drive home a simple point: one can oppose President Trump’s policies or actions but still conclude that the current legal case for impeachment is not just woefully inadequate, but in some respects, dangerous, as the basis for the impeachment of an American president. To put it simply, I hold no brief for President Trump. My personal and political views of President Trump, however, are irrelevant to my impeachment testimony, as they should be to your impeachment vote. Today, my only concern is the integrity and coherence of the constitutional standard and process of impeachment. President Trump will not be our last president and what we leave in the wake of this scandal will shape our democracy for generations to come. I am concerned about lowering impeachment standards to fit a paucity of evidence and an abundance of anger. If the House proceeds solely on the Ukrainian allegations, this impeachment would stand out among modern impeachments as the shortest proceeding, with the thinnest evidentiary record, and the narrowest grounds ever used to impeach a president. That does not bode well for future presidents who are working in a country often sharply and, at times, bitterly divided.
Although I am citing a wide body of my relevant academic work on these questions, I will not repeat that work in this testimony. Instead, I will focus on the history and cases that bear most directly on the questions facing this Committee. My testimony will first address relevant elements of the history and meaning of the impeachment standard. Second, I will discuss the past presidential impeachments and inquiries in the context of this controversy. Finally, I will address some of the specific alleged impeachable offenses raised in this process. In the end, I believe that this process has raised serious and legitimate issues for investigation. Indeed, I have previously stated that a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet moving forward primarily or exclusively with the Ukraine controversy on this record would be as precarious as it would premature. It comes down to a type of constitutional architecture. Such a slender foundation is a red flag for architects who operate on the accepted 1:10 ratio between the width and height of a structure. The physics are simple. The higher the building, the wider the foundation. There is no higher constitutional structure than the impeachment of a sitting president and, for that reason, an impeachment must have a wide foundation in order to be successful. The Ukraine controversy has not offered such a foundation and would easily collapse in a Senate trial.
Before I address these questions, I would like to make one last cautionary observation regarding the current political atmosphere. In his poem “The Happy Warrior,” William Wordsworth paid homage to Lord Horatio Nelson, a famous admiral and hero of the Napoleonic Wars. Wordsworth began by asking “Who is the happy Warrior? Who is he what every man in arms should wish to be?” The poem captured the deep public sentiment felt by Nelson’s passing and one reader sent Wordsworth a gushing letter proclaiming his love for the poem. Surprisingly, Wordsworth sent back an admonishing response. He told the reader “you are mistaken; your judgment is affected by your moral approval of the lines.” Wordsworth’s point was that it was not his poem that the reader loved, but its subject. My point is only this: it is easy to fall in love with lines that appeal to one’s moral approval. In impeachments, one’s feeling about the subject can distort one’s judgment on the true meaning or quality of an argument. We have too many happy warriors in this impeachment on both sides. What we need are more objective noncombatants, members willing to set aside political passion in favor of constitutional circumspection. Despite our differences of opinion, I believe that this esteemed panel can offer a foundation for such reasoned and civil discourse. If we are to impeach a president for only the third time in our history, we will need to rise above this age of rage and genuinely engage in a civil and substantive discussion. It is to that end that my testimony is offered today.
II. A BRIEF OVERVIEW OF THE HISTORY AND MEANING OF THE IMPEACHMENT STANDARD
Divining the intent of the Framers often borders on necromancy, with about the same level of reliability. Fortunately, there are some questions that were answered directly by the Framers during the Constitutional and Ratification Conventions. Any proper constitutional interpretation begins with the text of the Constitution. Indeed, such interpretations ideally end with the text when there is clarity as to a constitutional standard or procedure. Five provisions are material to impeachment cases, and therefore structure our analysis:
Article I, Section 2: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. U.S. Const. art. I, cl. 8.
Article I, Section 3: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath orffirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present. U.S. Const. art. I, 3, cl. 6.
Article I, Section 3: Judgment 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, Judgment, and Punishment, according to the Law. U.S. Const. art. I, 3, cl. 7.
Article II, Section 2: [The President] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. U.S. Const., art. II, 2, cl. 1.
Article II, Section 4: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. U.S. Const. art. II, 4.
For the purposes of this hearing, it is Article II, Section 4 that is the focus of our attention and, specifically, the meaning of “Treason, Bribery, or other high Crimes and Misdemeanors.” It is telling that the actual constitutional standard is contained in Article II (defining executive powers and obligations) rather than Article I (defining legislative powers and obligations). The location of that standard in Article II serves as a critical check on service as a president, qualifying the considerable powers bestowed upon the Chief Executive with the express limitations of that office. It is in this sense an executive, not legislative, standard set by the Framers. For presidents, it is essential that this condition be clear and consistent so that they are not subject to the whim of shifting majorities in Congress. That was a stated concern of the Framers and led to the adoption of the current standard and, equally probative, the express rejection of other standards.
A. Hastings and the English Model of Impeachments
It can be fairly stated that American impeachments stand on English feet. However, while the language of our standard can be directly traced to English precedent, the Framers rejected the scope and procedures of English impeachments. English impeachments are actually instructive as a model rejected by the Framers due to its history of abuse. Impeachments in England were originally quite broad in terms of the basis for impeachment as well as those subject to impeachments. Any citizen could be impeached, including legislators. Thus, in 1604, John Thornborough, Bishop of Bristol, was impeached for writing a book on the controversial union with Scotland.10
Thornborough was a member of the House of Lords, and his impeachment proved one of the many divisive issues between the two houses that ended in a draw. The Lords would ultimately rebuke the Bishop, but the House of Commons failed to secure a conviction. Impeachments could be tried by the Crown, and the convicted subjected to incarceration and even execution. The early standard was breathtakingly broad, including “treasons, felonies, and mischiefs done to our Lord, The King” and “divers deceits.” Not surprisingly, critics and political opponents of the Crown often found themselves the subject of such impeachments. Around 1400, procedures formed for impeachment but trials continued to serve as an extension of politics, including expressions of opposition to Crown governance by Parliament. Thus, Michael de la Pole, Earl of Suffolk, was impeached in 1386 for such offenses as appointing incompetent officers and “advising the King to grant liberties and privileges to certain persons to the hindrance of the due execution of the laws.” Others were impeached for “giving pernicious advice to the Crown” and “malversations and neglects in office; for encouraging pirates; for official oppression, extortions, and deceits; and especially for putting good magistrates out of office, and advancing bad.”
English impeachments were hardly a model system. Indeed, they were often not tried to verdict or were subject to a refusal to hold a trial by the House of Lords.
Nevertheless, there was one impeachment in particular that would become part of the constitutional debates: the trial of Governor General Warren Hastings of the East India Company. The trial would captivate colonial figures as a challenge to Crown authority while highlighting all of the flaws of English impeachments. Indeed, it is a case that bears some striking similarities to the allegations swirling around the Ukrainian controversy.
Hastings was first appointed as the Governor of Bengal and eventually the Governor-General in India. It was a country like Ukraine, rife with open corruption and bribery. The East India Company held quasi-governing authority and was accused of perpetuating such corruption. Burisma could not hold a candle to the East India Company. Hastings imposed British control over taxation and the courts. He intervened in military conflicts to secure concessions. His bitter feuds with prominent figures even led to a duel with British councilor Philip Francis, who Hastings shot and wounded. The record was heralded by some and vilified by others. Among the chief antagonists was Edmund Burke, one of the intellectual giants of his generation. Burke despised Hastings, who he described as the “captain-general of iniquity” and a “spider of Hell.” Indeed, even with the over-heated rhetoric of the current hearings, few comments have reached the level of Burke’s denouncement of Hastings as a “ravenous vulture devouring the carcasses of the dead.” Burke led the impeachment for bribery and other forms of abuse of power – proceedings that would take seven years. Burke made an observation that is also strikingly familiar in the current controversy. He insisted in a letter to Francis that the case came down to intent and Hastings’ defenders would not except any evidence as incriminating:
“Most of the facts, upon which we proceed, are confessed; some of them are boasted of. The labour will be on the criminality of the facts, where proof, as I apprehend, will not be contested. Guilt resides in the intention. But as we are before a tribunal, which having conceived a favourable opinion of Hastings (or what is of more moment, very favourable wishes for him) they will not judge of his intentions by the acts, but they will qualify his Acts by his presumed intentions. It is on this preposterous mode of judging that he had built all the Apologies for his conduct, which I have seen. Excuses, which in any criminal court would be considered with pity as the Straws, at which poor wretches drowning will catch, and which are such as no prosecutor thinks is worth his while to reply to, will be admitted in such a House of Commons as ours as a solid defence … We know that we bring before a bribed tribunal a prejudged cause. In that situation all that we have to do is make a case strong in proof and in importance, and to draw inferences from it justifiable in logick, policy and criminal justice. As to all the rest, it is vain and idle.”
That is an all-too-familiar refrain for the current controversy. Impeachment cases often come down to a question of intent, as does the current controversy. It also depends greatly on the willingness of the tribunal to consider the facts in a detached and neutral manner. Burke doubted the ability of the “bribed tribunal” to guarantee a fair trial—a complaint heard today on both sides of the controversy. Yet, ultimately for Burke, the judgment of history has not been good. While many of us think Burke truly believed the allegations against Hastings, Hastings was eventually acquitted and Burke ended up being censured after the impeachment.
Ultimately, the United States would incorporate the language of “high crimes and misdemeanors” from English impeachments, but fashion a very different standard and process for such cases.
B. The American Model of Impeachment
Colonial impeachments did occur with the same dubious standards and procedures that marked the English impeachments. Indeed, impeachments were used in the absence of direct political power. Much like parliamentary impeachments, the colonial impeachments became a way of contesting Crown governance. Thus, the first colonial impeachment in 1635 targeted Governor John Harvey of Virginia for misfeasance in office, including tyrannical conduct in office. Likewise, the 1706 impeachment of James Logan, Pennsylvania provincial agent and secretary of the Pennsylvania council, was based largely on political grievances including “a wicked intent to create Divisions and Misunderstandings between him and the people.” These colonial impeachments often contained broad or ill-defined grounds for impeachment for such things as “loss of public trust.” Some impeachments involved Framers, from John Adams to Benjamin Franklin, and most were certainly known to the Framers as a whole.
Given this history, when the Framers met in Philadelphia to craft the Constitution, impeachment was understandably raised, including the Hastings impeachment, which had yet to go to trial in England. However, there was a contingent of Framers that viewed any impeachment of a president as unnecessary and even dangerous. Charles Pinckney of South Carolina, Gouverneur Morris of Pennsylvania, and Rufus King of Massachusetts opposed such a provision. That opposition may have been due to the history of the use of impeachment for political purposes in both England and the colonies that I just discussed. However, they were ultimately overruled by the majority who wanted this option included into the Constitution. As declared by William Davie of North Carolina, impeachment was viewed as the “essential security for the good behaviour of the Executive.”
Unlike the English impeachments, the American model would be limited to judicial and executive officials. The standard itself however led to an important exchange between George Mason and James Madison:
“Col. Mason. Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offense. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined – As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments.
He movd. to add after “bribery” “or maladministration.” Mr. Gerry seconded him –
Mr. Madison[.] So vague a term will be equivalent to a tenure during pleasure of the Senate.
Mr. Govr Morris[.] It will not be put in force & can do no harm – An election of every four years will prevent maladministration.
Col. Mason withdrew “maladministration” & substitutes “other high crimes & misdemeanors” (“agst. the State”).
In the end, the Framers would reject various prior standards including “corruption,” “obtaining office by improper means”, betraying his trust to a foreign power, “negligence,” “perfidy,” “peculation,” and “oppression.” Perfidy (or lying) and peculation (self-dealing) are particularly interesting in the current controversy given similar accusations against President Trump in his Ukrainian comments and conduct.
It is worth noting that, while Madison objected to the inclusion of maladministration in the standard in favor of the English standard of “high crimes and misdemeanors,” he would later reference maladministration as something that could be part of an impeachment and declared that impeachment could address “the incapacity, negligence or perfidy of the chief Magistrate.” Likewise, Alexander Hamilton referred to impeachable offenses as “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”17 These seemingly conflicting statements can be reconciled if one accepts that some cases involving high crimes and misdemeanors can include such broader claims. Indeed, past impeachments have alleged criminal acts while citing examples of lying and violations of public trust. Many violations of federal law by presidents occur in the context of such perfidy and peculation – aspects that help show the necessity for the extreme measure of removal. Indeed, such factors can weigh more heavily in the United States Senate where the question is not simply whether impeachable offenses have occurred but whether such offenses, if proven, warrant the removal of a sitting president. However, the Framers clearly stated they adopted the current standard to avoid a vague and fluid definition of a core impeachable offense. The structure of the critical line cannot be ignored. The Framers cited two criminal offenses—treason and bribery—followed by a reference to “other high crimes and misdemeanors.” This is in contrast to when the Framers included “Treason, Felony, or other Crime” rather than “high crime” in the Extradition Clause of Article IV, Section 2.
“[It is] indispensable that some provision should be made for defending the Community against the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression… In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.”
Capacity issues however have never been the subject of presidential impeachments. That danger was later address in the Twenty-Fifth Amendment
Impeachable acts other than bribery and treason were meant to reach a similar level of gravity and seriousness (even if they are not technically criminal acts). This was clearly a departure from the English model, which was abused because of the dangerous fluidity of the standard used to accuse officials. Thus, the core of American impeachments was intended to remain more defined and limited. It is a discussion that should weigh heavily on the decision facing members of this House.
III. PRIOR PRESIDENTIAL IMPEACHMENTS AND THEIR RELEVANCE TO THE CURRENT INQUIRY
As I have stressed, it is possible to establish a case for impeachment based on a non-criminal allegation of abuse of power. However, although criminality is not required in such a case, clarity is necessary. That comes from a complete and comprehensive record that eliminates exculpatory motivations or explanations. The problem is that this is an exceptionally narrow impeachment resting on the thinnest possible evidentiary record. During the House Intelligence Committee proceedings, Democratic leaders indicated that they wanted to proceed exclusively or primarily on the Ukrainian allegations and wanted a vote by the end of December. I previously wrote that the current incomplete record is insufficient to sustain an impeachment case, a view recently voiced by the New York Times and other sources.
Even under the most flexible English impeachment model, there remained an expectation that impeachments could not be based on presumption or speculation on key elements. If the underlying allegation could be non-criminal, the early English impeachments followed a format similar to a criminal trial, including the calling of witnesses. However, impeachments were often rejected by the House of Lords as facially inadequate, politically motivated, or lacking sufficient proof. Between 1626 and 1715, the House of Lords only held trials to verdict in five of the fifty-seven impeachment cases brought. For all its failings, The House of Lords still required evidence of real offenses supported by an evidentiary record for impeachment. Indeed, impeachments were viewed as more demanding than bills of attainder.
A bill of attainder involves a legislative form of punishment. While a person could be executed under a bill of attainder, it was still more difficult to sustain an impeachment action. That difficulty is clearly shown by the impeachment of Thomas Wentworth, Earl of Strafford. Strafford w anas a key advisor to King Charles I, and was impeached in 1640 for the subversion of “the Fundamental Laws and Government of the Realms” and endeavoring “to introduce Arbitrary and Tyrannical Government against Law.” Strafford contested both the underlying charges and the record. The House of Commons responded by dropping the impeachment and adopting a bill of attainder. In doing so, the House of Commons avoided the need to establish a complete evidentiary record and Stafford was subject to the bill of attainder and executed. Fortunately, the Framers had the foresight to prohibit bills of attainder. However, the different treatment between the two actions reflects the (perhaps counterintuitive) difference in the expectations of proof. Impeachments were viewed as requiring a full record subjected to adversarial elements of a trial.
In the current case, the record is facially insufficient. The problem is not simply that the record does not contain direct evidence of the President stating a quid pro quo, as Chairman Schiff has suggested. The problem is that the House has not bothered to subpoena the key witnesses who would have such direct knowledge. This alone sets a dangerous precedent. A House in the future could avoid countervailing evidence by simply relying on tailored records with testimony from people who offer damning presumptions or speculation. It is not enough to simply shrug and say this is “close enough for jazz” in an impeachment. The expectation, as shown by dozens of failed English impeachments, was that the lower house must offer a complete and compelling record. That is not to say that the final record must have a confession or incriminating statement from the accused. Rather, it was meant to be a complete record of the key witnesses that establishes the full range of material evidence. Only then could the body reach a conclusion on the true weight of the evidence—a conclusion that carries sufficient legitimacy with the public to justify the remedy of removal.
The history of American presidential impeachment shows the same restraint even when there were substantive complaints against the conduct of presidents. Indeed, some of our greatest presidents could have been impeached for acts in direct violation of their constitutional oaths of office. Abraham Lincoln, for example, suspended habeas corpus during the Civil War despite the fact that Article 1, Section 9, of the Constitution leaves such a suspension to Congress “in Cases of Rebellion or Invasion the public Safety may require it.” The unconstitutional suspension of the “Great Writ” would normally be viewed as a violation of the greatest constitutional order. Other presidents faced impeachment inquires that were not allowed to proceed, including John Tyler, Grover Cleveland, Herbert Hoover, Harry Truman, Richard Nixon, Ronald Reagan, and George Bush. President Tyler faced some allegations that had some common elements to our current controversy. Among the nine allegations raised by Rep. John Botts of Virginia, Tyler was accused of initiating an illegal investigation of the custom house in New York, withholding information from government agents, withholding actions necessary to “the just operation of government” and “shameless duplicity, equivocation, and falsehood, with his late cabinet and Congress.” Likewise, Cleveland was accused of high crimes and misdemeanors that included the use of the appointment power for political purposes (including influencing legislation) against the nation’s interest and “corrupt[ing] politics through the interference of Federal officeholders.” Truman faced an impeachment call over a variety of claims, including “attempting to disgrace the Congress of the United States”; “repeatedly withholding information from Congress”; and “making reckless and inaccurate public statements, which jeopardized the good name, peace, and security of the United States.”
These efforts reflect the long history of impeachment being used as a way to amplify political differences and grievances. Such legislative throat clearing has been stopped by the House by more circumspect members before articles were drafted or passed. This misuse of impeachment has been plain during the Trump Administration. Members have called for removal based on a myriad of objections against this President. Rep. Al Green (D-Texas) filed a resolution in the House of Representatives for impeachment after Trump called for players kneeling during the national anthem to be fired.20 Others called for impeachment over President Trump’s controversial statement on the Charlottesville protests. Rep. Steve Cohen’s (D-Tenn.) explained that “If the president can’t recognize the difference between these domestic terrorists and the people who oppose their anti-American attitudes, then he cannot defend us.”22 These calls have been joined by an array of legal experts who have insisted that clear criminal conduct by Trump, including treason, have been shown in the Russian investigation. Professor Lawrence Tribe argued that Trump’s pardoning of former Arizona sheriff Joe Arpaio is clearly impeachable and could even be overturned by the courts. Richard Painter, chief White House ethics lawyer for George W. Bush and a professor at the University of Minnesota Law School, declared that President Trump’s participation in fundraisers for Senators, a common practice of all presidents in election years, is impeachable. Painter insists that any such fundraising can constitute “felony bribery” since these senators will likely sit in judgment in any impeachment trial. Painter declared “This is a bribe. Any other American who offered cash to the jury before a trial would go to prison for felony bribery. But he can get away with it?”
CNN Legal Analyst Jeff Toobin declared, on the air, that Trump could be impeached solely on the basis of a tweet in which Trump criticized then Attorney General Jeff Sessions for federal charges brought against two Republican congressman shortly before the mid-term elections. CNN Legal Analyst and former White House ethics attorney Norm Eisen claimed before the release of the Mueller report (which ultimately rejected any knowing collusion or conspiracy by Trump officials with Russian operatives) that the criminal case for collusion was “devastating” and that Trump is “colluding in plain sight.”26 I have known many of these members and commentators for years on a professional or personal basis. I do not question their sincere beliefs on the grounds for such impeachments, but we have fundamental differences in the meaning and proper use of this rarely used constitutional device.
As I have previously written, such misuses of impeachment would convert our process into a type of no-confidence vote of Parliament. Impeachment has become an impulse buy item in our raging political environment. Slate has even featured a running “Impeach-O-Meter.” Despite my disagreement with many of President Trump’s policies and statements, impeachment was never intended to be used as a mid-term corrective option for a divisive or unpopular leader. To its credit, the House has, in all but one case, arrested such impulsive moves before the transmittal of actual articles of impeachment to the Senate. Indeed, only two cases have warranted submission to the Senate and one was a demonstrative failure on the part of the House in adhering to the impeachment standard. Those two impeachments—and the third near-impeachment of Richard Nixon—warrant closer examination and comparison in the current environment.
A. The Johnson Impeachment
The closest of the three impeachments to the current (Ukrainian-based) impeachment would be the 1868 impeachment of Andrew Johnson. The most obvious point of comparison is the poisonous political environment and the controversial style ofLincoln assassination, Johnson faced an immediate challenge even before his acerbic and abrasive personality started to take its toll. Adding to this intense opposition to Johnson was his hostility to black suffrage, racist comments, and occupation of Southern states. He was widely ridiculed as the “accidental President” and specifically described by Representative John Farnsworth of Illinois, as an “ungrateful, despicable, besotted, traitorous man.” Woodrow Wilson described that Johnson “stopped neither to understand nor to persuade other men, but struck forward with crude, uncompromising force for his object, attempting mastery without wisdom or moderation.”28 Johnson is widely regarded as one of the worst presidents in history—a view that started to form significantly while he was still in office.
The Radical Republicans in particular opposed Johnson, who was seen as opposing retributive measures against Southern states and full citizenship rights for freed African Americans. Johnson suggested hanging his political opponents and was widely accused of lowering the dignity of his office. At one point, he even reportedly compared himself to Jesus Christ. Like Trump, Johnson’s inflammatory language was blamed for racial violence against both blacks and immigrants. He was also blamed for reckless economic policies. He constantly obstructed the enforcement of federal laws and espoused racist views that even we find shocking for that time. Johnson also engaged in widespread firings that were criticized as undermining the functioning of government— objections not unlike those directed at the current Administration.
While Johnson’s refusal to follow federal law and his efforts to disenfranchise African Americans would have been viewed as impeachable (Johnson could not have worked harder to counterpunch his way into an impeachment), the actual impeachment proved relatively narrow. Radical Republicans and other members viewed Secretary of War Edwin M. Stanton as an ally and a critical counterbalance to Johnson. Johnson held the same view and was seen as planning to sack Stanton. To counter such a move (or lay a trap for impeachment), the Radical Republicans passed the Tenure of Office Act to prohibit a President from removing a cabinet officer without the appointment of a successor by the Senate. To facilitate an impeachment, the drafters included a provision stating that any violation of the Act would constitute a “high misdemeanor.” Violations were criminal and punishable “upon trial and conviction . . . by a fine not exceeding ten thousand dollars, or by imprisonment not exceeding ten years, or both.” The act was repealed in 1887 and the Supreme Court later declared that its provisions were presumptively constitutionally invalid.
Despite the facially invalid provisions, Johnson was impeached on eleven articles of impeachment narrowly crafted around the Tenure in Office Act. Other articles added intemperate language to unconstitutional limitations, impeaching Johnson for such grievances as trying to bring Congress “into disgrace, ridicule, hatred, contempt, and reproach” and making “with a loud voice certain intemperate, inflammatory, and scandalous harangues ” Again, the comparison to the current impeachment inquiry is obvious. After two years of members and commentators declaring a host of criminal and impeachable acts, the House is moving on the narrow grounds of an alleged quid pro quo while emphasizing the intemperate and inflammatory statements of the president. The rhetoric of the Johnson impeachment quickly outstripped its legal basis. In his presentation to the Senate, House manager John Logan expressed the view of President Johnson held by the Radical Republicans:
“Almost from the time when the blood of Lincoln was warm on the floor of Ford’s Theatre, Andrew Johnson was contemplating treason to all the fresh fruits of the overthrown and crushed rebellion, and an affiliation with and a practical official and hearty sympathy for those who had cost hecatombs of slain citizens, billions of treasure, and an almost ruined country. His great aim and purpose has been to subvert law, usurp authority, insult and outrage Congress, reconstruct the rebel States in the interests of treason… and deliver all snatched from wreck and ruin into the hands of unrepentant, but by him pardoned, traitors.”
The Senate trial notably included key pre-trial votes on the evidentiary and procedural rules. The senators unanimously agreed that the trial should be judicial, not political, in character, but Johnson’s opponents set about stacking the rules to guarantee easy conviction. On these votes, eleven Republicans broke from their ranks to insist on fairness for the accused. They were unsuccessful. Most Republican members turned a blind eye to the dubious basis for the impeachment. Their voters hated Johnson and cared little about the basis for his removal. However, Chief Justice Chase and other senators saw the flaws in the impeachment and opposed conviction. This included seven Republican senators—William Pitt Fessenden, James Grimes, Edmund Ross, Peter Van Winkle, John B. Henderson, Joseph Fowler, and Lyman Trumbull—who risked their careers to do the right thing, even for a president they despised. They became known as the “Republican Recusants.” Those seven dissenting Republicans represented a not- insignificant block of the forty-two Republican members voting in an intensely factional environment. Taking up the eleventh article as the threshold vote on May 16, 1868, 35 senators voted to convict while 19 voted to acquit—short of the two-thirds majority needed. Even after a ten-day delay with intense pressure on the defecting Republican members, two additional articles failed by the same vote and the proceedings were ended. The system prevailed despite the failure of a majority in the House and a majority of the Senate.
The comparison of the Johnson and Trump impeachment inquiries is striking given the similar political environments and the controversial qualities of the two presidents. Additionally, there was another shared element: speed. This impeachment would rival the Johnson impeachment as the shortest in history, depending on how one counts the relevant days. In the Johnson impeachment, Secretary of War Edwin Stanton was dismissed on February 21, 1868, and a resolution of impeachment was introduced that very day. On February 24, 1868, the resolution passed and articles of impeachment prepared. On March 2-3, 1868, eleven articles were adopted. The members considered the issue to be obvious in the Johnson case since the President had openly violated a statute that expressly defined violations as “high misdemeanors.” Of course, the scrutiny of the underlying claims had been ongoing before the firing and this was the third attempted impeachment. Indeed, Congress passed legislation on March 2, 1867—one year before the first nine articles were adopted. Moreover, Johnson actually relieved Stanton of his duties in August 1867, and the House worked on the expected impeachment during this period. In December 1867, the House failed to adopt an impeachment resolution based on many of the same grievances because members did not feel that an actual crime had been committed. There were three prior impeachments with similar elements. When Stanton was actually fired, Johnson’s leading opponent Rep.
Thaddeus Stevens of Pennsylvania (who had been pushing for impeachment for over a year) confronted the House members and demanded “What good did your moderation do you? If you don’t kill the beast, it will kill you.” With the former termination and the continued lobbying of Stevens, the House again moved to impeach and secured the votes. Thus, the actual resolution and adoption dates are a bit misleading. Yet, Johnson may technically remain the shortest investigation in history. However, whichever impeachment deserves the dubious distinction, history has shown that short impeachments are generally not strong impeachments.
While generally viewed as an abusive use of impeachment by most legal and historical scholars, the Johnson impeachment has curiously been cited as a basis for the current impeachment. Some believe that it is precedent that presidents can be impeached over purely “political disagreements.” It is a chilling argument. Impeachment is not the remedy for political disagreement. The Johnson impeachment shows that the system can work to prevent an abusive impeachment even when the country and the Congress despise a president. The lasting lesson is that in every time and in every Congress, there remain leaders who can transcend their own insular political interests and defy the demands of some voters to fulfill their oaths to uphold the Constitution. Of course, the Constitution cannot take credit for such profiles of courage. Such courage rests within each member but the Constitution demands that each member summon that courage when the roll is called as it was on May 16, 1868.
Part II begins with an analysis of the Nixon Impeachment inquiry…