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01/27/2020

John Yoo on Impeachment and the Founders
Michael Ramsey

At National Review, John Yoo: What the Founders Told Us about ‘High Crimes and Misdemeanors’.  From the introduction:

The first week of the impeachment trial of Donald Trump focused on whether the Senate would call witnesses such as former national-security adviser John Bolton and Joe and Hunter Biden. But while they would attract lots of commentary and speculation, any new witnesses would not materially affect the final verdict. The critical constitutional question, which both parties have so far failed to persuasively answer, is this: Did the president commit a “high crime or misdemeanor” that justifies removal from office? And both the House accusers and the Trump defense team have sought to answer that question, upon which all depends, by reversing the polarity of their traditional constitutional positions. ...

Today’s Democrats have probably never signed a document so replete with quotations from The Federalist Papers and the Constitutional Convention as the House Judiciary Committee’s December 13, 2019, impeachment report. Democrats suddenly favor the Founding because it lends some support to their claim that the standard of “Treason, Bribery, and other high Crimes and Misdemeanors” for presidential impeachment includes conduct that falls short of federal crimes. They are surely correct about the broad scope of impeachable offenses. Impeachment exists for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” Alexander Hamilton explained in Federalist No. 65. “They are of a nature which may with particular propriety be denominated POLITICAL, as they related chiefly to injuries done immediately to the society itself.”

In particular, the House impeachment report argues that the “high Crimes and Misdemeanors” standard encompasses three types of offenses that are not in themselves criminal: “abuse of power,” “betrayal of the national interest,” and “corruption of office or elections.” ...

And from later on:

Trump’s defense team, meanwhile, has erred even more egregiously in the opposite direction. While the White House has broken all records in appointing originalist judges, its defense team has adopted a non-originalist approach that could have made Justice William Brennan chuckle. “By limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law,’” proclaims President Trump’s January 20, 2020, Trial Memorandum, without producing any statement from a leading Founder, during the drafting or ratification of the Constitution, that limits “high Crimes and Misdemeanors” to criminal acts. ...

Instead, the president’s team makes arguments on the meaning of “high Crimes and Misdemeanors” that resemble the methods used by the justices who have steadily expanded individual rights in ways that offend conservatives. For example, Trump’s brief relies heavily on our present-day understandings of the relationship between the president and Congress, and on the impeachments of Andrew Johnson and Bill Clinton. Any good originalist would concede, however, that precedent from 80 or 210 years after the Founding cannot reflect the original meaning of the constitutional text, and that a defense of Trump that relies solely on impeachment’s potential to weaken the presidency cannot overcome the explanations of the meaning of “high Crimes and Misdemeanors” offered by the Founders themselves during the battle over the Constitution’s ratification.

And on the merits:

... An initial close reading of the Constitution’s text suggests that “other high Crimes and Misdemeanors” must have a similar nature to “Treason” and “Bribery,” since they are included in the same list and, crucially, linked with an “other.” If the clause had read “Treason, Bribery, and high Crimes and Misdemeanors,” without the “other,” the scope of offenses covered by impeachment might be much broader. Other parts of the Constitution reinforce the idea that the phrase “high Crimes and Misdemeanors” limits impeachment to serious offenses. Article I immunizes members of Congress from arrest when Congress is in session except for “Treason, Felony, and Breach of the Peace”; it seems that felonies or breaches of the peace do not amount, alone, to “high” crimes. Article IV requires states to extradite fugitives charged with “Treason, Felony, or other Crime.” This approach does not answer the question of what treason, bribery, and other high crimes and misdemeanors should have in common, only that we should read the catch-all as including only offenses of a similar gravity.

Where the Framers discussed high crimes and misdemeanors, they cited examples of abuse of power that harm the nation at a level as serious as Treason and Bribery. At the Constitutional Convention, Madison discussed cases that would require presidential removal. “Some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate,” he declared. He did not believe that elections held every four years would provide a strong enough safeguard. “[The president] might lose his capacity after his appointment,” Madison worried. Or worse yet, “he might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Edmund Randolph supported his fellow Virginian because “the Executive will have great opportunities of abusing his power; particularly in time of war when the military force, and in some respects the public money will be in his hands.” Without impeachment, Randolph predicted, the people would have to resort to “tumults & insurrections” to turn out such a president.

(Thanks to Andrew Hyman for the pointer.)