Contemplating the forthcoming impeachment of President Trump--an event every day's headlines make more likely, at a pace even more rapid than that of 1973-4--I began thinking harder about possible grounds. That took me to a book that I had originally brought and read back in those days, Impeachment: The Constitutional Problems, by the remarkable law professor Raoul Berger. Having worked as a Washington lawyer for many years before becoming a Professor at Berkeley in 1960, when he was 60, Berger, I see, was a fellow in legal history at Harvard's Charles Warren Center when he wrote Impeachment--and he was also exactly the age that I am now. It's a wonderful piece of legal-historical scholarship, packed into 300 relatively short pages with a lot of footnotes at the bottom. And it leaves me believing that the Congress has ever reason to impeach and convict President Trump, albeit on grounds that are not playing much of a role in the public discussion of his case so far.
Like every great legal scholar, Berger understood that American law--including Constitutional law--has to be understood against the background of British precedents. The Constitution uses many words whose meaning had been defined by English law, the English common law was still part of the law of the colonies, and in many respects the framers aimed at keeping the good parts of the British Constitution while correcting the problems that had led to the Revolution. "Impeachment" and "high crimes and misdemeanors" were both terms familiar in British practice, and both had very specific meanings which the framers were incorporating into our own Constitution. Berger therefore began with a brief history of the development of impeachments in medieval England, going back to the 14th century. Even then, the outlines of our current procedures emerged: the House of Commons, the lower house of Parliament, could vote impeachments, which the House of Lords then tried--and the monarch, although long thought immune from any judicial punishment, could not protect his ministers from impeachment, trial and conviction. During the reign of Charles I, who tried to govern without Parliament and create an absolute monarchy, Parliament successfully impeached, tried, convicted, and executed, his first minister, the Earl of Strafford, on the specific grounds that he was subverting the unwritten English constitution by attempting to govern without parliament. Indeed, his parliamentary accusers defined that behavior as a form of treason, and Strafford was executed. (See note at the end.) Several subsequent 17th-century impeachments of great ministers also claimed that they had committed various forms of treason, defined as subversion of the Constitution (although their punishments fell short of death.) A much earlier statute had actually given Parliament the right to define treason--obviously a formidable weapon against an unpopular minister, especially in contentious times.
The framers of the Constitution, wise and well-read men that they were, took several explicit steps to prevent the abuse of the impeachment power, such as surely had taken place in Britain. They defined treason very specifically as levying war upon the United States or giving its enemies (presumably, wartime enemies) aid and comfort. They explicitly limited punishments in cases of impeachment to removal from office and disqualification from further office, although they added that those impeached and convicted could be subject to additional trials and penalties in ordinary courts. They forbade pardons in cases of impeachment, such as at least one monarch had given to an accused subordinate in Britain. They also outlawed Bills of Attainder, laws passed by Parliament (with the King's assent) that could order the execution of a guilty subject, as well as the forfeiture of all his property and titles. Yet in their own way, they laid out broad grounds for impeachment of civil officers of the United States, including the President, for "treason, bribery, or other high crimes and misdemeanors." To these we now turn.
As I have noted, treason has a very specific definition under the Constitution, and bribery has such a definition under the regular law. The first thing that we may say about "high crimes and misdemeanors" is that they are not ordinary crimes, and the House and Senate have convicted and removed judges for offenses that are not punishable by statute law. In 1936, a certain Judge Halsted Ritter was convicted not of income tax evasion, of which he had been charged, but of "[bringing] his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice [emphasis added]." His conduct made him "guilty of high crimes and misdemeanors in office," the Senate stated. Two Chief Justices of the Supreme Court, William Howard Taft and Charles Evans Hughes, stated publicly that impeachments could be brought for any reason showing unfitness or misconduct in office, even if specific crimes were not involved--such behavior fell within "high crimes and misdemeanors." That phrase also dates from 14th-century England many English precedents defined it quite clearly, and in ways most relevant to our current dilemma. "Your lordships," a lord said in the midst of impeachment debate in 1725. "are now exercising a power of judicature reserved in the original frame of the English constitution for offenses of a public nature, which may affect the nation; as well in cases where inferior courts have no power to punish the crimes committed by ordinary rules of justice. [emphasis added]" In 1757 the great commentator Blackstone described "the first and principal" high misdemanor as "the mal-administration of such high officers, who are in the public trust or employment;" for this impeachment was the remedy. Another commentator expanded on this point with specific examples that, once again, show how frequently critical issues in politics and government tend to recur. "If the judges mislead their sovereign by unconstitutional opinions. . . .where the lord chancellor has been thought to put the seal to an ignominious treaty. . . .a privy councillor to propound or support dishonorable measures, or a confidential adviser of the sovereign to obtain exhorbitant grants. . .these imputations have properly occasioned impeachments, because it is apparent how little ordinary tribunals are calculated to take cognizance of such offenses, or to investigate and reform the general policy of the state[emphasis added]. On pp. 67-9 of Impeachment Berger prints a long list of impeachable offenses relating to the failure properly to perform the duties of a particular office, be it judicial, military, or civil. The framers, however, also agreed, as Berger shows, that impeachments of Presidents had to be confined to "great offenses" which, although not necessarily indictable under the law, amounted to much more than a neglect of relatively trivial duties.
Berger fortuitously finished and published Impeachment just as the Watergate scandal was breaking. Clearly the offenses of Richard Nixon and his men--including the break-in into the Watergate, the burglary of a doctor's office to secure damaging information about the leaker Daniel Ellsberg, the attempted use of the CIA to try to block the investigation of the Watergate burglary, and the payment of hush money to keep witnesses quiet--qualified as "high crimes and misdemeanors" as the framers understood them. Equally clearly, the impeachment of Bill Clinton had no basis in constitutional law as understood by the framers, since his alleged offenses had nothing to do with the performance of his official duties.
What about Donald Trump?
Both before and after assuming office, the President has welcomed the interference of a foreign power in our elections. He asked the Russians to try to find Hillary Clinton's emails during the campaign, and we have now learned that he told two Russian diplomats in the spring of 2017 that he did not mind what they had done. Now, he has enlisted both his private attorney Rudy Giuliani and his State and Justice Departments in an attempt to persuade the government of Ukraine to develop negative information about candidate Biden and his son, and he probably blocked military aid to Ukraine to try to get his way. In short, after having (with some difficulty) found cabinet officers who will consistently do his bidding at State and Justice, he has used them to try to use the power of the federal government to re-elect himself by discrediting a political opponent.
Meanwhile, the President has repeatedly shown contempt for the law of the land, and a willingness to obstruct it. He wanted to fire Robert Mueller during his investigation and repeatedly ordered subordinates to do so. He has also told Border Patrol officials to take potentially illegal steps to stop migrants from coming over our southern border, and promised to pardon them for doing so if they get into legal trouble as a result. He has defied numerous subpoenas from Congress.
More importantly, in my opinion, the President has shown over the nearly three years of his administration that he cannot run the federal government effectively. He has fired cabinet officers and other officials at an unprecedented rate because he cannot bear subordinates who have integrity and independence of mind. Large numbers of important government positions still remain unfilled. His administration has blocked various agencies from releasing scientific findings. He has shown appalling judgment of foreign leaders such as Vladimir Putin and Kim Jong Un. His phone conversations with various foreign leaders, we now learned, have seriously disturbed subordinates who heard them or saw the transcripts. The Congress in my opinion has every right to see the transcripts of his conversations with those men to see what they reveal about his fitness for office.
Law Professor John Yoo, who wrote the notorious torture memo for the Bush Administration when he worked in the Office of Legal Counsel, has argued that Trump should not be impeached based upon a conversation with the President of Ukraine because presidents need to have confidential conversations with foreign leaders. That, I think, completely misunderstands the founders' position on impeachment. The broader issue involved here is this: should a President be punished for the use he makes of a normal part of the duties of his office? In my opinion, the founders and the English statesmen whose precedents they respected obviously answered that question in the affirmative. Indeed, a President who used purely legal means to undermine national security, spread false stories about political opponents, and run a revolving door government in an attempt to find sycophants that would do his bidding would be more dangerous that one who obviously violated the law. Such a man is exactly the kind of president with which the impeachment clause of the Constitution was designed to deal.
All of this would be quite obvious, it seems to me, in a nation that still took the history and procedures of its government seriously and appreciated what the federal government does for the nation. Unfortunately, the election of 2016 proved that that is no longer the nation that we are. Partisanship, not a respect for established principles, now drives our politics. Indeed, large parts of the Republican Party have resented the growth of the federal government and wished that much of it would disappear for 80 years. Presidents Nixon, Reagan, and George W. Bush all shared, to a certain degree, Trump's hostility towards our permanent government and its purposes. Thus we cannot be sure that if a House Democratic majority votes articles of impeachment, that the Senate will muster even a majority--much less the necessary 2/3--to convict.
And thus, while I feel that impeachment and conviction are more than warranted, I still am not sure that voting those articles will leave us better off than we are now. Still, the die is cast. More and more revelations are coming out, and a few Republicans are expressing doubts about Donald Trump. When parties march in lock step, they can change direction with extraordinary speed. Anything is possible. Meanwhile, my thanks go again to Raoul Berger, who,. nearly 50 years after the publication of his book, has shown me that the situation we face is indeed exactly the kind of situation that the founders put impeachment into the Constitution to deal with.
Note: In the end the Earl of Strafford's impeachment did not result in a conviction. Before the House of Lords could finish trying the case, King Charles' opponents in the Commons decided instead to pass a bill of attainder calling for his execution. The Lords also passed it and the King assented to try to mollify Parliament and stop a revolution. In that he failed. Exactly why the leaders of the Commons changed their minds about procedure is not clear, as Berger shows, but it certainly was not because they lacked the power to impeach and convict the Earl for violations of Britain's unwritten constitution.