“The Congressional Power of Impeachment and Trump”
Michael O’Loughlin, Professor of Politics
Political Science Department
Salisbury University
(Talk given to the Wicomico County Democratic Club)
Wednesday, September 18, 2019
Introduction
Our discussion tonight regarding impeachment emerges of course from the fact that we Americans face a rogue president and presidency, dangerous to us and our communities and, because of the empire over which the president presides, dangerous to the larger world as well. Donald Trump is authoritarian in character and is expanding the imperial presidency through acts both big and small, both domestic and foreign policy. Those of us with any democratic reason reach for some tool, some mechanism to end this political nightmare and one of those tools seems readily apparent: impeachment and expulsion from office as soon as possible.
The political question then becomes: Should we press forward for impeachment, particularly in the light of the Mueller Report as well as the almost daily revelations of one corrupt act after another?
To answer this urgent question, we need first to clarify for ourselves the Congressional power itself and its relevance for this purpose. We will then reflect briefly on the Mueller Report and how that Report points an arrow towards the use of impeachment as the Constitutional remedy for a rogue presidency. Finally, in that light, we consider briefly the politics.
II. Impeachment and its Meaning
The most reasonable interpretation of the Constitution rests on the proposition that the Congress is presumed to be the central legitimate source of legislative power in the federal government. The Constitution begins with Article I, establishing preeminent legislative, policy making authority in the Congress, not the president, not the bureaucracy and not the federal courts, including the Supreme Court. In effect, the latter institutions were to be subordinate to the law of the land as established by the US Congress.
Congressman Jamie Raskin states this point well when he recently wrote,
“…Congress was never designed as, nor should it ever become, a mere “co-equal branch,” beseeching the president to share his awesome powers with us. We are the exclusive lawmaking branch of our national government and the preeminent part of it. We set the policy agenda, we write the laws, and we can impeach judges or executives who commit high crimes and misdemeanors against our institutions…” [i] (Underlining, my emphasis.)
Hence, Article I identifies a long list of powers, granted to the Congress, explicit powers such as the power to tax, to borrow money, to regulate commerce, to raise an army, etc., all Constitutionally based authorities, supposedly anchoring the Congress forever more to be preeminent.
Nonetheless, separation of powers is also a principle of US national government, meaning a measure of independent authority and power is also established in other institutions, the president, and the courts and by delegation of authority even the bureaucracy.
Yet, still and all, as if to maintain the preeminence of the Congress, the framers sought to ensure that it, the Congress, could “check” and override the actions of the other branches and their occupants through legislative action but also through the blunt instrument of physical removal from office. This is impeachment. Complex though it is, the power involves a process of investigation and inquiry, the bringing of charges and the holding of a trial leading to possible conviction and expulsion.
Specifically, as spelled out in Article I, Section 2, the Constitution says
“The House of Representatives shall…have the sole Power of Impeachment.” Article I, Section 3 then continues, “The Senate shall have the sole Power to try all Impeachments… 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.”[ii]
Here then we have the Constitutional basis for the familiar structure and process of “impeachment”: It is up to the House of Representatives to decide by a majority vote, namely, 218 members, whether to make an initial judgement regarding the fitness for office of an administrative official but that expulsion from office can only take place when the Senate votes in favor with a super majority, a 2/3s vote or 67 members with the third branch of government, the courts, overseeing the proceedings through the office of the Chief Justice of the Supreme Court.
Importantly, the supremacy of the legislature is apparent in the arguments for this impeachment power. As Alexander Hamilton writes,
“It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body.”[iii]
As Constitutional scholars have noted, this claim is anchored in the shared sentiment among most of the framers to avoid the creation of a new monarchy and protect against its evolution.
But what should be the criteria for judgement, for either the House or the Senate? Again, the Constitution gives guidance when it says,
“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.” (Article II, Section 4).[iv]
The meaning of “treason” and “bribery” are relatively self-evident but to what misconduct does the phrase “high Crimes and Misdemeanors” refer? Cass Sunstein, a noted professor of law suggests an answer:
“High crimes and misdemeanors” was the substitute term, [for maladministration] which covered great and dangerous offenses outside of treason and bribery. History suggests… that it means very egregious abuses of authority. That’s what the American and English practice points to.”[v]
Additionally, he says to expand,
“[The actions] …would be either criminal acts that were abuses of authority or… noncriminal acts that invaded civil liberties or compromised self-government.”[vi]
In this light, cutting to the chase, we understand this Constitutional criteria best as a political rather than a legal standard. I say “political” in its most moral sense having to do with serving the public good and upholding the purpose of the office to serve the common interest in some fundamental sense. This understanding then can certainly include violation of laws already on the books.
Yet, most importantly, the Constitutional directive here includes actions and behaviors that are judged to be a betrayal of the public interest through abuse of Article II presidential powers even if no violation of law has occurred. In other words, the Constitution gives the Congress wide discretion in its use of impeachment power, specific violation of law an unnecessary precondition.
This distinction between violating a “political” norm and violating a “legal norm,” i.e., an official law of the state is revealed as well, indirectly, in the same section of the Constitution,
“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 Law.”[vii]
Banishment from “…any Office of honor, Trust or Profit under the United States…” is the goal, the conviction of a crime under the law a secondary matter, though liability for indictment after expulsion remains open.
This understanding is consistent with the original intentions of the framers of the Constitution. We can see this reasoning as part of Hamilton’s argument in defense of the Senate as “a court of impeachments.” In Federalist Paper #65 Hamilton writes,
“The subjects of its [the Senate’s] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”[viii]
(bold emphasis, mine.)
Hints of Aristotle and other Greek philosophers are evident here with their use of the term “political” to refer to the public arena where the good of society is served in some fashion rather than our contemporary use of the term to refer to corrupt partisan politics.
In any case, however we wish to interpret the “political,” public interest or partisan purpose, the Congressional authority of impeachment and expulsion has great breadth, extending beyond legal bounds.
Finally, to underscore Congressional preeminence within the government, we should note as well that the other branches are without similar Constitutional powers: Neither the president nor the federal courts can unilaterally act to remove a member of Congress from office.
III. The Mueller Report as the Evidence for Impeachment and Expulsion of Donald Trump from the Office of the President
In this light, in the case of President Trump, we can easily see how the Mueller Report provides overwhelming evidence of “High Crimes and Misdemeanors,” involving both the “violation of some public trust,” to use Hamilton’s language and the clear violation of federal law as well.
After a thorough scholarly search, using J-stor, the Library of Congress, Harvard Law library and of course SU’s new library (actually, untrue!), I arrived at perhaps the best summary of Mueller’s conclusions: “Doonesbury,” by Gary Trudeau. In his cartoon, Trudeau serves up a summary “KWIK KARD” we can all use in conversations and at parties: “Volume I: Collusion: Too Inept;” “Volume II: Obstruction 10 counts.”
Trudeau accurately sums up Mueller’s quantitative indictment for collusion and obstruction of justice:
“101 contacts with Russian operatives.
38 meetings and calls
16 Trump officials including Don “I love it” Jr.”
10 episodes of obstruction of justice.”[ix]
Closer scrutiny of the Report reveals a documented pattern of behavior by Trump officials and Trump himself that provide ample evidence of the campaign’s efforts to facilitate a relationship with Russian political operatives that would hurt the Clinton campaign and help Trump win the election of 2016. “Collusion” is different from legal “conspiracy” but the phenomena are different only in degree, Trump’s actions and those of his campaign, falling just short of violation of the law but enough to have crossed a line into working with a foreign government to interfere in a sovereign American presidential election.
Critically, though, as we have already argued, the legal criteria are marginal in this regard. Violation of law is not the standard here: violation of the public trust is. We Americans trust that fellow citizens running for public office are interested in advancing the public good of our society, are responsive to us and wish to protect the sovereignty of our electoral process,
[i] https://www.washingtonpost.com/outlook/congress-isnt-just-a-co-equal-branch-were-first-among-equals/2019/05/09/e3caa552-7206-11e9-9eb4-0828f5389013_story.html..
[ii] US Constitution.
[iii] http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-65.php.
[iv] Op. Cit., US Constitution.
[v] See interview regarding Sunstein’s book in https://www.rollingstone.com/politics/politics-features/cass-sunstein-impeachment-author-852656/.
“The Congressional Power of Impeachment and Trump”
Michael O’Loughlin, Professor of Politics
Political Science Department
Salisbury University
(Talk given to the Wicomico County Democratic Club)
Wednesday, September 18, 2019
Michael O’Loughlin, Professor of Politics
Political Science Department
Salisbury University
(Talk given to the Wicomico County Democratic Club)
Wednesday, September 18, 2019
Introduction
Our discussion tonight regarding impeachment emerges of course from the fact that we Americans face a rogue president and presidency, dangerous to us and our communities and, because of the empire over which the president presides, dangerous to the larger world as well. Donald Trump is authoritarian in character and is expanding the imperial presidency through acts both big and small, both domestic and foreign policy. Those of us with any democratic reason reach for some tool, some mechanism to end this political nightmare and one of those tools seems readily apparent: impeachment and expulsion from office as soon as possible.
The political question then becomes: Should we press forward for impeachment, particularly in the light of the Mueller Report as well as the almost daily revelations of one corrupt act after another?
To answer this urgent question, we need first to clarify for ourselves the Congressional power itself and its relevance for this purpose. We will then reflect briefly on the Mueller Report and how that Report points an arrow towards the use of impeachment as the Constitutional remedy for a rogue presidency. Finally, in that light, we consider briefly the politics.
II. Impeachment and its Meaning
The most reasonable interpretation of the Constitution rests on the proposition that the Congress is presumed to be the central legitimate source of legislative power in the federal government. The Constitution begins with Article I, establishing preeminent legislative, policy making authority in the Congress, not the president, not the bureaucracy and not the federal courts, including the Supreme Court. In effect, the latter institutions were to be subordinate to the law of the land as established by the US Congress.
Congressman Jamie Raskin states this point well when he recently wrote,
“…Congress was never designed as, nor should it ever become, a mere “co-equal branch,” beseeching the president to share his awesome powers with us. We are the exclusive lawmaking branch of our national government and the preeminent part of it. We set the policy agenda, we write the laws, and we can impeach judges or executives who commit high crimes and misdemeanors against our institutions…” [i] (Underlining, my emphasis.)
Hence, Article I identifies a long list of powers, granted to the Congress, explicit powers such as the power to tax, to borrow money, to regulate commerce, to raise an army, etc., all Constitutionally based authorities, supposedly anchoring the Congress forever more to be preeminent.
Nonetheless, separation of powers is also a principle of US national government, meaning a measure of independent authority and power is also established in other institutions, the president, and the courts and by delegation of authority even the bureaucracy.
Yet, still and all, as if to maintain the preeminence of the Congress, the framers sought to ensure that it, the Congress, could “check” and override the actions of the other branches and their occupants through legislative action but also through the blunt instrument of physical removal from office. This is impeachment. Complex though it is, the power involves a process of investigation and inquiry, the bringing of charges and the holding of a trial leading to possible conviction and expulsion.
Specifically, as spelled out in Article I, Section 2, the Constitution says
“The House of Representatives shall…have the sole Power of Impeachment.” Article I, Section 3 then continues, “The Senate shall have the sole Power to try all Impeachments… 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.”[ii]
Here then we have the Constitutional basis for the familiar structure and process of “impeachment”: It is up to the House of Representatives to decide by a majority vote, namely, 218 members, whether to make an initial judgement regarding the fitness for office of an administrative official but that expulsion from office can only take place when the Senate votes in favor with a super majority, a 2/3s vote or 67 members with the third branch of government, the courts, overseeing the proceedings through the office of the Chief Justice of the Supreme Court.
Importantly, the supremacy of the legislature is apparent in the arguments for this impeachment power. As Alexander Hamilton writes,
“It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body.”[iii]
As Constitutional scholars have noted, this claim is anchored in the shared sentiment among most of the framers to avoid the creation of a new monarchy and protect against its evolution.
But what should be the criteria for judgement, for either the House or the Senate? Again, the Constitution gives guidance when it says,
“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.” (Article II, Section 4).[iv]
The meaning of “treason” and “bribery” are relatively self-evident but to what misconduct does the phrase “high Crimes and Misdemeanors” refer? Cass Sunstein, a noted professor of law suggests an answer:
“High crimes and misdemeanors” was the substitute term, [for maladministration] which covered great and dangerous offenses outside of treason and bribery. History suggests… that it means very egregious abuses of authority. That’s what the American and English practice points to.”[v]
Additionally, he says to expand,
“[The actions] …would be either criminal acts that were abuses of authority or… noncriminal acts that invaded civil liberties or compromised self-government.”[vi]
In this light, cutting to the chase, we understand this Constitutional criteria best as a political rather than a legal standard. I say “political” in its most moral sense having to do with serving the public good and upholding the purpose of the office to serve the common interest in some fundamental sense. This understanding then can certainly include violation of laws already on the books.
Yet, most importantly, the Constitutional directive here includes actions and behaviors that are judged to be a betrayal of the public interest through abuse of Article II presidential powers even if no violation of law has occurred. In other words, the Constitution gives the Congress wide discretion in its use of impeachment power, specific violation of law an unnecessary precondition.
This distinction between violating a “political” norm and violating a “legal norm,” i.e., an official law of the state is revealed as well, indirectly, in the same section of the Constitution,
“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 Law.”[vii]
Banishment from “…any Office of honor, Trust or Profit under the United States…” is the goal, the conviction of a crime under the law a secondary matter, though liability for indictment after expulsion remains open.
This understanding is consistent with the original intentions of the framers of the Constitution. We can see this reasoning as part of Hamilton’s argument in defense of the Senate as “a court of impeachments.” In Federalist Paper #65 Hamilton writes,
“The subjects of its [the Senate’s] jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”[viii]
(bold emphasis, mine.)
Hints of Aristotle and other Greek philosophers are evident here with their use of the term “political” to refer to the public arena where the good of society is served in some fashion rather than our contemporary use of the term to refer to corrupt partisan politics.
In any case, however we wish to interpret the “political,” public interest or partisan purpose, the Congressional authority of impeachment and expulsion has great breadth, extending beyond legal bounds.
Finally, to underscore Congressional preeminence within the government, we should note as well that the other branches are without similar Constitutional powers: Neither the president nor the federal courts can unilaterally act to remove a member of Congress from office.
III. The Mueller Report as the Evidence for Impeachment and Expulsion of Donald Trump from the Office of the President
In this light, in the case of President Trump, we can easily see how the Mueller Report provides overwhelming evidence of “High Crimes and Misdemeanors,” involving both the “violation of some public trust,” to use Hamilton’s language and the clear violation of federal law as well.
After a thorough scholarly search, using J-stor, the Library of Congress, Harvard Law library and of course SU’s new library (actually, untrue!), I arrived at perhaps the best summary of Mueller’s conclusions: “Doonesbury,” by Gary Trudeau. In his cartoon, Trudeau serves up a summary “KWIK KARD” we can all use in conversations and at parties: “Volume I: Collusion: Too Inept;” “Volume II: Obstruction 10 counts.”
Trudeau accurately sums up Mueller’s quantitative indictment for collusion and obstruction of justice:
“101 contacts with Russian operatives.
38 meetings and calls
16 Trump officials including Don “I love it” Jr.”
10 episodes of obstruction of justice.”[ix]
Closer scrutiny of the Report reveals a documented pattern of behavior by Trump officials and Trump himself that provide ample evidence of the campaign’s efforts to facilitate a relationship with Russian political operatives that would hurt the Clinton campaign and help Trump win the election of 2016. “Collusion” is different from legal “conspiracy” but the phenomena are different only in degree, Trump’s actions and those of his campaign, falling just short of violation of the law but enough to have crossed a line into working with a foreign government to interfere in a sovereign American presidential election.
Critically, though, as we have already argued, the legal criteria are marginal in this regard. Violation of law is not the standard here: violation of the public trust is. We Americans trust that fellow citizens running for public office are interested in advancing the public good of our society, are responsive to us and wish to protect the sovereignty of our electoral process,
[i] https://www.washingtonpost.com/outlook/congress-isnt-just-a-co-equal-branch-were-first-among-equals/2019/05/09/e3caa552-7206-11e9-9eb4-0828f5389013_story.html..
[ii] US Constitution.
[iii] http://www.let.rug.nl/usa/documents/1786-1800/the-federalist-papers/the-federalist-65.php.
[iv] Op. Cit., US Constitution.
[v] See interview regarding Sunstein’s book in https://www.rollingstone.com/politics/politics-features/cass-sunstein-impeachment-author-852656/.
“The Congressional Power of Impeachment and Trump”
Michael O’Loughlin, Professor of Politics
Political Science Department
Salisbury University
(Talk given to the Wicomico County Democratic Club)
Wednesday, September 18, 2019
