« William Thro: Originalism and School Finance Litigation
Michael Ramsey
| Main | More from Calvin TerBeek on the History of Originalism
Michael Ramsey »

05/22/2017

Greg Weiner on Impeachment
Michael Ramsey

In the New York Times, Greg Weiner (Assumption College Political Science/Liberty Law Blog): Impeachment’s Political Heart. From the core of the argument:

Our tendency to read the impeachment power in an overly legalistic way, which is ratified by 230 years of excessive timidity about its use, obscures the political rather than juridical nature of the device. The Constitution applies presidential impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors.” The famous latter phrase does not refer to offenses like burglary on the one hand or loitering on the other. If it did, impeachment would be available for casual transgressions, which no framer of the Constitution intended.

The phrase dates in American constitutionalism to the founder George Mason’s proposal to make the president liable to impeachment not just for treason and bribery — the original formulation at the Constitutional Convention — but also for what he called “maladministration.” His fellow framer James Madison objected to the vagueness of the term, so Mason substituted “high Crimes and Misdemeanors.” That phrase, in turn, is traceable to the British legal commentator William Blackstone, a contemporary who was revered in colonial America, who applied it to the “mal-administration of high officers,” among other things.

Mason’s intent was clearly to delineate a political category, something Alexander Hamilton — who did not shrink in the defense of executive power — recognized in Federalist 65, which says that impeachment applied to offenses “of a nature which may with peculiar propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

And in conclusion, with respect to President Trump:

The evidence should be carefully gathered, a process in which Robert S. Mueller III, acting as special counsel, will help considerably. But Mr. Mueller is no substitute for Congress’s independent responsibilities of investigation and sober evaluation. The question is by what standards they should conduct this work, and that question provides an opportunity to correct the mistaken assumption according to which presidents can forfeit the public trust only by committing what the law recognizes as a crime. That is a poor bar for a mature republic to set. It is not the one a newborn republic established.

And that is why the idea that the conversation about impeachment is simply a political persecution of a man who is technically innocent of a literal crime not only jumps the investigatory gun. It misses the constitutional point.

(Thanks to Michael Perry for the pointer).

I think it inevitable that, if there is serious discussion of impeachment, a central issue in popular commentary will be the framers' understanding of "high Crimes and Misdemeanors."  This despite repeated claims during Justice Gorsuch's confirmation that originalism is impossible or incoherent, that originalism is a fringe approach, and/or that originalism leads to such manifestly bad outcomes that it should be denounced and rejected.

RELATED:  At Bloomberg View, Noah Feldman: Trump Should Worry: Comey Memo Describes a High Crime.  Despite the title, the article is mostly a fair-minded assessment of whether the President's alleged comments to Director Comey violated statutory law or the Constitution (concluding no): 

...[T]he federal obstruction statute, 18 U.S.C. Section 1503 ... punishes anyone who “corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice.”

On a close reading, this isn’t a great fit with the president asking the director of the Federal Bureau of Investigation if he can let a probe go because the target is “a good guy.” Remember, as a constitutional matter, the director of the FBI, like the attorney general and the rest of the machine of federal law enforcement, works for the president.

Although there has been a strong tradition of separating investigation and prosecution from the president -- a tradition grossly violated by Trump’s request -- it’s still just a tradition, not a legal requirement.

Thus, as a constitutional matter, Trump has the authority to propose ending an investigation. If he wanted to, Trump could just order the investigation to be brought to an end. He wouldn’t even have to exercise his pardon power, another way to put a preemptive stop to investigations. He could just direct his subordinates to cease.

To be sure, Comey probably would have resigned had this order been given. The point is that Trump could have given it, legally speaking.

Agreed.  But the Professor Feldman -- no originalist! -- goes on to say:

Impeachment is another matter. Using the presidential office to try to shut down the investigation of a senior executive official who was also a major player in the president’s campaign is an obvious and egregious abuse of power. It’s also a gross example of undermining the rule of law.

This act is exactly the kind that the Founding Fathers would have considered a “high crime.” [editor's note: in the essay, no evidence follows this assertion.]

First, no.  If anything, it is (as Professor Weiner argues) a high misdemeanor.  I'm not aware of any evidence that "crime" meant anything different in the eighteenth century than it does today -- an act contrary to law.  Since Professor Feldman spent the first two-thirds of his essay explaining (correctly in my view) that no crime could be found in these allegations, that should be an end of that.  The ambiguous word is "misdemeanors," which can mean "minor crimes" but also can mean (and could also mean in the eighteenth century) "misdeeds."  (Aside: why are nonorignalists such terrible originalists?)

Second: why does Professor Feldman care what "the Founding Fathers would have considered a 'high crime'"?   Only because he thinks (rightly) that originalist arguments carry force in this debate.