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12/11/2019

Skeptical on Impeachment
Michael Ramsey

I’ll put the conclusion first: I think supporters of the present impeachment have largely stated the law correctly, but I’m skeptical of their application of the law to the facts.

As indicated in a prior post, I mostly agree with the Majority Counsel’s scholarly and strongly originalist account of the law of impeachment.  My approach differs in being somewhat more textualist and less reliant on appeals to an abstract intent of the Framers, but (except at the very end) it’s mostly consistent.

To begin, the impeachment clause (Art. II, Sec. 4) limits the actions for which a President may be impeached.  It may be true as a practical matter that the House can impeach for whatever reason it wants, but that does not make the impeachment constitutional.  The implication of the text listing specifically “Treason, Bribery, or other high Crimes and Misdemeanors” is that (a) there are things outside this category and (b) those things cannot be the basis for impeachment.  The Convention debates (recounted in the Majority Counsel’s report) confirm this reading. Madison, Mason and others struggled with the language – among other things rejecting “maladministration.”  Their obvious assumption was that the language would be limiting, defining an impeachable category and excluding matters outside it.  That the House has “sole Power of impeachment" (Art. I, Sec. 2) is not to the contrary (though it might suggest a limitation of judicial review).  The House’s power – exclusive as it may be – is circumscribed by the text, and the Members have a duty to act constitutionally, whether or not their actions are subject to judicial review.

In the present case, the focus is on “Misdemeanors,” as the House’s draft articles of impeachment do not address treason, bribery or criminal action.  I agree with the general academic consensus that this word, given its original meaning, does not mean “minor crimes” (its common modern meaning) but rather means something like “misconduct” or “wrongdoing” (from "demeanor," meaning behavior -- thus, literally bad behavior).  That conclusion seems likely from the text itself; it would be superfluous to authorize impeachment for “high crimes and minor crimes” – one could just say “crimes” – and it would be odd to allow something as momentous as removing the President for a minor crime while not allowing removal for serious misconduct that did not happen to be criminal.  And founding-era writing confirms that “misdemeanor” at the time was used to mean misconduct or wrongdoing.  (It’s worth noting, though, that this conclusion depends on an originalist meaning of the word; the modern meaning might limit impeachment to criminal conduct).

As the Majority Counsel report explains, the most plausible category of non-criminal misconduct is presidential violations of the Constitution.  These could be violations of specific clauses, or they could (as the report emphasizes) be violations of the President’s general duty to “faithfully execute” his office.  On this point I agree with at least the broad conclusion of this article by Fordham law professors Andrew Kent, Ethan Leib and Jed Sugarman that the faithful execution duty requires the President to act in the public interest and not for private gain.

A further point acknowledged by the Majority Counsel report is that impeachable offenses are ones that represent substantial injury to the nation.  The Constitution's text itself indicates as much by opening the impeachment clause with treason and bribery followed by the more general reference to high crimes and misdemeanors.  One would expect the general terms to have characteristics similar to the specific terms.  This is the associated-words canon, or noscitur a sociis: “words grouped in a list should be given related meanings” (from Scalia & Garner, Reading Law, p. 195).  Calling out treason and bribery in particular emphasizes the gravity of impeachable offenses, and the “other high Crimes and Misdemeanors” should have equivalent gravity.  (This is another reason “misdemeanors” in the impeachment clause cannot have meant “minor crimes”). Thus, as the report quotes George Mason at the Convention, impeachable offenses must be “great and dangerous offenses.”

In sum, the law applicable to the present case requires (a) presidential wrongdoing that is (b) of very substantial magnitude.  This is why, as an aside, the historical presidential impeachments rightly failed.  Congress’ real issue with Andrew Johnson was that he disagreed on the approach to Reconstruction; the actual charge – that Johnson violated the Tenure in Office Act – didn’t show wrongdoing because, as Johnson argued, the Act was unconstitutional.  So there was not any presidential wrongdoing within the meaning of the clause.  President Clinton’s lying in a deposition was wrongdoing (indeed, criminal wrongdoing) but quite arguably did not amount to a “great and dangerous offense” that threatened the nation, as it was largely a private matter.

As I read the Majority Counsel report and the draft articles of impeachment, they do not disagree with this test.  I think, however, that they arguably misapply it.  On the first step, it is not clear that presidential wrongdoing of an impeachable character has occurred.  Impeachment supporters say that the President used political leverage to induce the Ukrainian government to take actions that benefited the President personally.  I’ll assume here that’s true – but I don’t think it’s enough.  I agree that if the President encouraged action that only benefited him personally (and especially if that action harmed the United States) he would violate his duty of faithful execution of his office.  The difficulty is that a President may take or encourage actions that benefit him personally and are consistent with the U.S. national interest.

That is very likely the case with President Trump.  As Andy McCarthy argues here, there are reasonable public policy reasons to ask (or even pressure) Ukraine to look into the Bidens and the Burisma enterprise (along with other aspects of corruption in Ukraine).  One may think that is inappropriate as a policy matter.  But the Constitution does not authorize impeachment for policy disagreements.

One may also say that the President only asked for an investigation of the Bidens to help himself politically and did not think it was in the public interest.  But this is speculation about what was in the President’s mind. And in any event I doubt it.  People generally have great ability to convince themselves that what helps them is also the right thing to do.  The current President is probably not an exception.  My guess is that he thought both that the investigation would help him politically and that it was in the public interest.  In any event, absent direct evidence (theoretically possible but practically unlikely) what was in his mind remains speculation.

In sum, I doubt it is an impeachable offence when the President takes action that is plausibly in the public interest and also benefits him personally.  It is hard to say that this violates the duty of faithful execution because the President is not acting contrary to the public interest (as he sees it).

Even if the facts add up to presidential wrongdoing (and there may be facts I haven’t considered that would change my analysis), the case would likely fail the second part of the impeachment test.  The whole Ukraine affair strikes me as fairly minor – in any event, it's well short of the “great and dangerous offenses” standard George Mason suggested. Even on facts most favorable to impeachment, it seems (to oversimplify) that the President briefly withheld aid to Ukraine, and refused a White House invitation to its President, to encourage Ukraine to do something (investigate corruption relating to the Burisma enterprise) that Ukraine arguably should have been doing anyway and ultimately didn’t do.  Ukraine's President himself said he did not feel undue pressure, and it's unlikely the brief delay in aid had any material consequences for U.S. national security (or even Ukrainian national security).  This seems far from treason and bribery, the specific textual examples of impeachable offenses, and far from any material threat to U.S. interests.

In contrast, consider the hypothetical situation if the President asked Ukraine to falsify evidence against the Bidens.  In my view this would meet the impeachment standard (even if it didn’t violate any law).  First, there is obviously no public policy reason for the request.  It only benefits the President personally.  Second, it is a serious affront to and threat to the U.S. national interest, undermining the integrity of the forthcoming election.  (President Nixon’s role in Watergate would be impeachable under a similar analysis).

In sum, I’m skeptical that impeachment supporters have made the case either that the President’s request to Ukraine violated his duty of faithful execution or that it reflected a grave threat to the United States.  Again, it’s possible there are facts or arguments I haven’t considered that would allow one to make that showing.  I just haven’t heard them yet.

RELATED:  Josh Blackman has some similar (but also somewhat distinct) arguments here (at Volokh Conspiracy) and here (in The Atlantic).  Orin Kerr responds here, focusing in part on Rudy Giuliani's role.  I agree that Giuliani's role may have been ill-advised, and probably unconstitutional under the Constitution's original meaning, but ultimately if the goal (investigation of Burisma) was plausibly in the public interest, Giuliani's role seems irregular but not impeachable.

Stephen Presser (Northwestern) argues here that the impeachment is unconstitutional, similarly making the argument that the President's actions were good faith pursuits of U.S. interests.  I think he makes the argument seem easier than it is by eliding the personal benefits the President no doubt saw in having Ukraine look into corruption at Burisma.  But I agree that the key is issue is whether the President plausibly saw himself as acting in the public interest (even with some personal benefit as well).