Impeach Trumpv over high crimes and misdemeanors? Ask Historians, Not Lawyers; Issues Are Neither Factual or Legal; Historical Precedent May Help
WASHINGTON, D.C. (November 26, 2019) – It’s time for the debates over whether President Trump should be impeached by the House, and then possibly removed from office by the Senate, to shift from factual and even legal issues to historical precedent, suggests public interest law professor John Banzhaf, who has provided many analyses of the impeachment situation.
He suggests that with so many witnesses who have already testified under oath, a draft transcript of the relevant phone call provided by the president himself, and lots of other evidence, the concern is no longer with getting the facts - and arguing about hearsay, procedural protections, and fairness, etc. - but rather whether those facts which now appear to be generally accepted provide a valid basis for impeachment and/or renewal.
To address that issue, many have turned to lawyers, and more specifically to their understanding of criminal law and criminal law precedent, seeking to divine whether Trump's actions would make him guilty of any one or more specific crimes such a bribery, extortion, and/or obstruction of justice.
But, suggests Banzhaf, that shouldn't be the primary issue, since that is not the constitutional criteria for impeachment - and should not be used as a standard by anyone who wishes to reach a principled decision, rather than one based primarily on politics and political considerations.
Extortion or bribery?
Although the stated constitutional standard for impeachment is "Treason, Bribery, or other high Crimes and Misdemeanors," the phrase "high crimes and misdemeanors" meant something very different when the Constitution was adopted than it is generally understood to mean today, and as it has been understood and applied in prior impeachment situations.
Evidence of what that phrase meant when it was included in the Constitution can be found in the writings of Alexander Hamilton in Federalist 65.
In it he wrote that the phrase related to "those offenses which proceed . . . from the abuse or violation of some public trust," and thus need not violate applicable criminal statutes or constitute common law crimes.
Thus most scholars seem to agree to a president can be impeached for actions which are not technically crimes.
Indeed, long before Trump ran for president, the Congressional Research Service identified three general types of conduct that constitute grounds for impeachment: (1) improperly exceeding or abusing the powers of the office; (2) behavior incompatible with the function and purpose of the office; and (3) misusing the office for an improper purpose or for personal gain.
None requires that the action in question also constitute a crime.
So in Trump's case it may make little sense to speculate whether his actions constitute, for example, the crime of bribery.
The most cited provision is Title 18 Section 201 of the federal code, which defines bribery as an act by a public official who "directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for being influenced in the performance of any official act."
Debate over high crimes and misdemeanors
But while granting military aid in return for a favor might arguably fit within the literal definition provided, courts have narrowly construed those words, especially in political situations.
For example, although Robert McDonnell did receive something of value, the court refused to accept this "boundless interpretation of the federal bribery statute."
Similar counts were rejected in other criminal cases, including counts against Senator Robert Menendez, who received gifts for allegedly using his office to benefit a donor.
Similarly, when trying to argue that Trump's actions in withholding aid constitutes extortion for using the power of the presidency to pressure another country to take a certain action, it should be noted that presidents, in law and in fact. have considerable discretion regarding various forms of aid, even if Congress has approved it, and this is especially true when dealing with foreign powers.
As a recent example, consider that President Barack Obama held up military aid until Egypt made "credible progress" toward democratic reforms.
Similarly, Presidents Reagan, G.W. Bush, and even Eisenhower cut off, or at least threatened to cut off, aid to Israel to "bribe" it to take certain actions.
Suggesting that Trump is guilty of the crime of obstruction of justice for not more fully cooperating with Congress is perhaps even more difficult to argue, much less to establish.
Naturally, Congress takes a much more expansive view of its own legal power to investigate than this president, and any president is likely to take a much more expansive view of things like executive privilege, attorney client privilege, work product, etc. to resist such demands.
Debate over high crimes and misdemeanors
In such situations, it would seem appropriate to permit the third branch - the one which is neutral - to decide between those competing claims.
Indeed, most would probably concede that that President does have a right to take such matters to court and to wait for a final order directing him to turn over documents, have current and previous subordinates testify, etc.
Everyone is entitled to his day in court, the old saying goes, and presumably that also includes the president.
Prof. Banzhaf says he recognizes that all of the examples he cites are different - and perhaps very different in a variety of ways - from the manner in which Trump acted, his motives for acting, etc.
So, suggests Banzhaf, rather than asking lawyers whether Trump warrants impeachment because he performed acts for which he would probably be found guilty in a criminal trial, historians should be asked how Trump's actions compare to actions taken by other presidents in somewhat similar circumstances.
In short, an important inquiry should be whether Trump has substantially exceeded what other presidents have been permitted to do without even an impeachment inquiry, and if it is so far outside what has been accepted before that he deserves to be impeached and possibly removed from office.