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Now here is Jonathan Turley on the impeachment campaign against President
Donald J. Trump.
http://ethicsalarms.com/2019/12/04/written-statement-of-prof-jonathan-turley-the-impeachment-inquiry-into-president-donald-j-trump-the-constitutional-basis-for-presidential-impeachment/
Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into
President Donald J. Trump: The Constitutional Basis For Presidential
Impeachment” [PART I]
DECEMBER 4, 2019 / JACK MARSHALL
Today, at the impeachment hearings, Prof. Jonathan Turley performed a great
public and national service by eviscerating the Democratic theory of
impeachment legally, logically and historically. I cannot wait to see if his
decisive testimony is given half the prominence by the New York Times as the
various headlines shouting about how an official would have done things
differently if he or she were President. Unlike almost all of the testimony
so far, Turley’s was based on facts and law, and addressed the issue at
hand: is there any justification for impeachment proceedings?
It’s a wonderful and clear piece of scholarship that addresses several
approaches to the matter that I had wanted to address, notably how the three
previous impeachment efforts compare with this one.
Every citizen should read it all; of course, almost none will. The testimony
is long, because it is thorough; I have edited it for ease of reading,
eliminating footnotes. If you want to read the original document, it is
here. Ethics Alarms is going to present this in several parts. Send that
link to your smug impeachment-cheering friends, relatives and social media
contacts. Tell them that unless they read it, you really don’t want to hear
any more on the subject from them, because they want to remain ignorant.
I am proud—relieved?—to find that this serious and admirable scholar
embraces many of the positions I have discussed here, though in far more
detail and with considerably more authority.
INTRODUCTION
Chairman Nadler, ranking member Collins, members of the Judiciary Committee,
my name is Jonathan Turley, and I am a law professor at George Washington
University where I hold the J.B. and Maurice C. Shapiro Chair of Public
Interest Law. It is an honor to appear before you today to discuss one of
the most solemn and important constitutional functions bestowed on this
House by the Framers of our Constitution: the impeachment of the President
of the United States.
Twenty-one years ago, I sat here before you, Chairman Nadler, and other
members of the Judiciary Committee to testify on the history and meaning of
the constitutional impeachment standard as part of the impeachment of
President William Jefferson Clinton. I never thought that I would have to
appear a second time to address the same question with regard to another
sitting president. Yet, here we are. Some elements are strikingly similar.
The intense rancor and rage of the public debate is the same. It was an
atmosphere that the Framers anticipated. Alexander Hamilton warned that
charges of impeachable conduct “will seldom fail to agitate the passions of
the whole community, and to divide it into parties more or less friendly or
inimical to the accused.”2 As with the Clinton impeachment, the Trump
impeachment has again proven Hamilton’s words to be prophetic. The stifling
intolerance for opposing views is the same. As was the case two decades ago,
it is a perilous environment for a legal scholar.
I appear today in my academic capacity to present views founded in prior
academic work on impeachment and the separation of powers. My testimony does
not reflect the views or approval of CBS News, the BBC, or the newspapers
for which I write as a columnist. My testimony was written exclusively by
myself with editing assistance from Nicholas Contarino, Andrew Hile, Thomas
Huff, and Seth Tate explores the technical and arcane issues normally
involved in an academic examination of a legal standard ratified 234 years
ago. In truth, the Clinton impeachment hearing proved to be an exception to
the tenor of the overall public debate. The testimony from witnesses,
ranging from Arthur Schlesinger Jr. to Laurence Tribe to Cass Sunstein,
contained divergent views and disciplines. Yet the hearing remained
respectful and substantive as we all grappled with this difficult matter. I
appear today in the hope that we can achieve that same objective of civil
and meaningful discourse despite our good- faith differences on the
impeachment standard and its application to the conduct of President Donald
J. Trump.
I have spent decades writing about impeachment and presidential powers as an
academic and as a legal commentator. My academic work reflects the bias of a
Madisonian scholar. I tend to favor Congress in disputes with the Executive
Branch and I have been critical of the sweeping claims of presidential power
and privileges made by modern Administrations. My prior testimony mirrors my
criticism of the expansion of executive powers and privileges. In truth, I
have not held much fondness for any president in my lifetime. Indeed, the
last president whose executive philosophy I consistently admired was James
Madison.
In addition to my academic work, I am a practicing criminal defense lawyer.
Among my past cases, I represented the United States House of
Representatives as lead counsel challenging payments made under the
Affordable Care Act without congressional authorization. I also served as
the last lead defense counsel in an impeachment trial in the Senate. With my
co-lead counsel Daniel Schwartz, I argued the case on behalf of federal
judge Thomas Porteous. (My opposing lead counsel for the House managers was
Adam Schiff). In addition to my testimony with other constitutional scholars
at the Clinton impeachment hearings, I also represented former Attorneys
General during the Clinton impeachment litigation over privilege disputes
triggered by the investigation of Independent Counsel Ken Starr. I also
served as lead counsel in a bill of attainder case, the sister of
impeachment that will be discussed below.
I would like to start, perhaps incongruously, with a statement of three
irrelevant facts. First, I am not a supporter of President Trump. I voted
against him in 2016 and I have previously voted for Presidents Clinton and
Obama. Second, I have been highly critical of President Trump, his policies,
and his rhetoric, in dozens of columns. Third, I have repeatedly criticized
his raising of the investigation of the Hunter Biden matter with the
Ukrainian president. These points are not meant to curry favor or approval.
Rather they are meant to drive home a simple point: one can oppose President
Trump’s policies or actions but still conclude that the current legal case
for impeachment is not just woefully inadequate, but in some respects,
dangerous, as the basis for the impeachment of an American president. To put
it simply, I hold no brief for President Trump. My personal and political
views of President Trump, however, are irrelevant to my impeachment
testimony, as they should be to your impeachment vote. Today, my only
concern is the integrity and coherence of the constitutional standard and
process of impeachment. President Trump will not be our last president and
what we leave in the wake of this scandal will shape our democracy for
generations to come. I am concerned about lowering impeachment standards to
fit a paucity of evidence and an abundance of anger. If the House proceeds
solely on the Ukrainian allegations, this impeachment would stand out among
modern impeachments as the shortest proceeding, with the thinnest
evidentiary record, and the narrowest grounds ever used to impeach a
president. That does not bode well for future presidents who are working in
a country often sharply and, at times, bitterly divided.
Although I am citing a wide body of my relevant academic work on these
questions, I will not repeat that work in this testimony. Instead, I will
focus on the history and cases that bear most directly on the questions
facing this Committee. My testimony will first address relevant elements of
the history and meaning of the impeachment standard. Second, I will discuss
the past presidential impeachments and inquiries in the context of this
controversy. Finally, I will address some of the specific alleged
impeachable offenses raised in this process. In the end, I believe that this
process has raised serious and legitimate issues for investigation. Indeed,
I have previously stated that a quid pro quo to force the investigation of a
political rival in exchange for military aid can be impeachable, if proven.
Yet moving forward primarily or exclusively with the Ukraine controversy on
this record would be as precarious as it would premature. It comes down to a
type of constitutional architecture. Such a slender foundation is a red flag
for architects who operate on the accepted 1:10 ratio between the width and
height of a structure. The physics are simple. The higher the building, the
wider the foundation. There is no higher constitutional structure than the
impeachment of a sitting president and, for that reason, an impeachment must
have a wide foundation in order to be successful. The Ukraine controversy
has not offered such a foundation and would easily collapse in a Senate
trial.
Before I address these questions, I would like to make one last cautionary
observation regarding the current political atmosphere. In his poem “The
Happy Warrior,” William Wordsworth paid homage to Lord Horatio Nelson, a
famous admiral and hero of the Napoleonic Wars. Wordsworth began by asking
“Who is the happy Warrior? Who is he what every man in arms should wish to
be?” The poem captured the deep public sentiment felt by Nelson’s passing
and one reader sent Wordsworth a gushing letter proclaiming his love for the
poem. Surprisingly, Wordsworth sent back an admonishing response. He told
the reader “you are mistaken; your judgment is affected by your moral
approval of the lines.” Wordsworth’s point was that it was not his poem that
the reader loved, but its subject. My point is only this: it is easy to fall
in love with lines that appeal to one’s moral approval. In impeachments, one’s
feeling about the subject can distort one’s judgment on the true meaning or
quality of an argument. We have too many happy warriors in this impeachment
on both sides. What we need are more objective noncombatants, members
willing to set aside political passion in favor of constitutional
circumspection. Despite our differences of opinion, I believe that this
esteemed panel can offer a foundation for such reasoned and civil discourse.
If we are to impeach a president for only the third time in our history, we
will need to rise above this age of rage and genuinely engage in a civil and
substantive discussion. It is to that end that my testimony is offered
today.
II. A BRIEF OVERVIEW OF THE HISTORY AND MEANING OF THE IMPEACHMENT STANDARD
Divining the intent of the Framers often borders on necromancy, with about
the same level of reliability. Fortunately, there are some questions that
were answered directly by the Framers during the Constitutional and
Ratification Conventions. Any proper constitutional interpretation begins
with the text of the Constitution. Indeed, such interpretations ideally end
with the text when there is clarity as to a constitutional standard or
procedure. Five provisions are material to impeachment cases, and therefore
structure our analysis:
Article I, Section 2: The House of Representatives shall chuse their Speaker
and other Officers; and shall have the sole Power of Impeachment. U.S.
Const. art. I, cl. 8.
Article I, Section 3: The Senate shall have the sole Power to try all
Impeachments. When sitting for that Purpose, they shall be on Oath
orffirmation. When the President of the United States is tried, the Chief
Justice shall preside: And no Person shall be convicted without the
Concurrence of two thirds of the Members present. U.S. Const. art. I, 3, cl.
6.
Article I, Section 3: Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and disqualification to hold and enjoy
any Office of honor, Trust, or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment, and Punishment, according to the Law. U.S. Const. art. I, 3, cl.
7.
Article II, Section 2: [The President] shall have Power to grant Reprieves
and Pardons for Offences against the United States, except in Cases of
Impeachment. U.S. Const., art. II, 2, cl. 1.
Article II, Section 4: The President, Vice President and all civil Officers
of the United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. U.S.
Const. art. II, 4.
For the purposes of this hearing, it is Article II, Section 4 that is the
focus of our attention and, specifically, the meaning of “Treason, Bribery,
or other high Crimes and Misdemeanors.” It is telling that the actual
constitutional standard is contained in Article II (defining executive
powers and obligations) rather than Article I (defining legislative powers
and obligations). The location of that standard in Article II serves as a
critical check on service as a president, qualifying the considerable powers
bestowed upon the Chief Executive with the express limitations of that
office. It is in this sense an executive, not legislative, standard set by
the Framers. For presidents, it is essential that this condition be clear
and consistent so that they are not subject to the whim of shifting
majorities in Congress. That was a stated concern of the Framers and led to
the adoption of the current standard and, equally probative, the express
rejection of other standards.
A. Hastings and the English Model of Impeachments
It can be fairly stated that American impeachments stand on English feet.
However, while the language of our standard can be directly traced to
English precedent, the Framers rejected the scope and procedures of English
impeachments. English impeachments are actually instructive as a model
rejected by the Framers due to its history of abuse. Impeachments in England
were originally quite broad in terms of the basis for impeachment as well as
those subject to impeachments. Any citizen could be impeached, including
legislators. Thus, in 1604, John Thornborough, Bishop of Bristol, was
impeached for writing a book on the controversial union with Scotland.10
Thornborough was a member of the House of Lords, and his impeachment proved
one of the many divisive issues between the two houses that ended in a draw.
The Lords would ultimately rebuke the Bishop, but the House of Commons
failed to secure a conviction. Impeachments could be tried by the Crown, and
the convicted subjected to incarceration and even execution. The early
standard was breathtakingly broad, including “treasons, felonies, and
mischiefs done to our Lord, The King” and “divers deceits.” Not
surprisingly, critics and political opponents of the Crown often found
themselves the subject of such impeachments. Around 1400, procedures formed
for impeachment but trials continued to serve as an extension of politics,
including expressions of opposition to Crown governance by Parliament. Thus,
Michael de la Pole, Earl of Suffolk, was impeached in 1386 for such offenses
as appointing incompetent officers and “advising the King to grant liberties
and privileges to certain persons to the hindrance of the due execution of
the laws.” Others were impeached for “giving pernicious advice to the Crown”
and “malversations and neglects in office; for encouraging pirates; for
official oppression, extortions, and deceits; and especially for putting
good magistrates out of office, and advancing bad.”
English impeachments were hardly a model system. Indeed, they were often not
tried to verdict or were subject to a refusal to hold a trial by the House
of Lords.
Nevertheless, there was one impeachment in particular that would become part
of the constitutional debates: the trial of Governor General Warren Hastings
of the East India Company. The trial would captivate colonial figures as a
challenge to Crown authority while highlighting all of the flaws of English
impeachments. Indeed, it is a case that bears some striking similarities to
the allegations swirling around the Ukrainian controversy.
Hastings was first appointed as the Governor of Bengal and eventually the
Governor-General in India. It was a country like Ukraine, rife with open
corruption and bribery. The East India Company held quasi-governing
authority and was accused of perpetuating such corruption. Burisma could not
hold a candle to the East India Company. Hastings imposed British control
over taxation and the courts. He intervened in military conflicts to secure
concessions. His bitter feuds with prominent figures even led to a duel with
British councilor Philip Francis, who Hastings shot and wounded. The record
was heralded by some and vilified by others. Among the chief antagonists was
Edmund Burke, one of the intellectual giants of his generation. Burke
despised Hastings, who he described as the “captain-general of iniquity” and
a “spider of Hell.” Indeed, even with the over-heated rhetoric of the
current hearings, few comments have reached the level of Burke’s
denouncement of Hastings as a “ravenous vulture devouring the carcasses of
the dead.” Burke led the impeachment for bribery and other forms of abuse of
power – proceedings that would take seven years. Burke made an observation
that is also strikingly familiar in the current controversy. He insisted in
a letter to Francis that the case came down to intent and Hastings’
defenders would not except any evidence as incriminating:
“Most of the facts, upon which we proceed, are confessed; some of them are
boasted of. The labour will be on the criminality of the facts, where proof,
as I apprehend, will not be contested. Guilt resides in the intention. But
as we are before a tribunal, which having conceived a favourable opinion of
Hastings (or what is of more moment, very favourable wishes for him) they
will not judge of his intentions by the acts, but they will qualify his Acts
by his presumed intentions. It is on this preposterous mode of judging that
he had built all the Apologies for his conduct, which I have seen. Excuses,
which in any criminal court would be considered with pity as the Straws, at
which poor wretches drowning will catch, and which are such as no prosecutor
thinks is worth his while to reply to, will be admitted in such a House of
Commons as ours as a solid defence … We know that we bring before a bribed
tribunal a prejudged cause. In that situation all that we have to do is make
a case strong in proof and in importance, and to draw inferences from it
justifiable in logick, policy and criminal justice. As to all the rest, it
is vain and idle.”
That is an all-too-familiar refrain for the current controversy. Impeachment
cases often come down to a question of intent, as does the current
controversy. It also depends greatly on the willingness of the tribunal to
consider the facts in a detached and neutral manner. Burke doubted the
ability of the “bribed tribunal” to guarantee a fair trial—a complaint heard
today on both sides of the controversy. Yet, ultimately for Burke, the
judgment of history has not been good. While many of us think Burke truly
believed the allegations against Hastings, Hastings was eventually acquitted
and Burke ended up being censured after the impeachment.
Ultimately, the United States would incorporate the language of “high crimes
and misdemeanors” from English impeachments, but fashion a very different
standard and process for such cases.
B. The American Model of Impeachment
Colonial impeachments did occur with the same dubious standards and
procedures that marked the English impeachments. Indeed, impeachments were
used in the absence of direct political power. Much like parliamentary
impeachments, the colonial impeachments became a way of contesting Crown
governance. Thus, the first colonial impeachment in 1635 targeted Governor
John Harvey of Virginia for misfeasance in office, including tyrannical
conduct in office. Likewise, the 1706 impeachment of James Logan,
Pennsylvania provincial agent and secretary of the Pennsylvania council, was
based largely on political grievances including “a wicked intent to create
Divisions and Misunderstandings between him and the people.” These colonial
impeachments often contained broad or ill-defined grounds for impeachment
for such things as “loss of public trust.” Some impeachments involved
Framers, from John Adams to Benjamin Franklin, and most were certainly known
to the Framers as a whole.
Given this history, when the Framers met in Philadelphia to craft the
Constitution, impeachment was understandably raised, including the Hastings
impeachment, which had yet to go to trial in England. However, there was a
contingent of Framers that viewed any impeachment of a president as
unnecessary and even dangerous. Charles Pinckney of South Carolina,
Gouverneur Morris of Pennsylvania, and Rufus King of Massachusetts opposed
such a provision. That opposition may have been due to the history of the
use of impeachment for political purposes in both England and the colonies
that I just discussed. However, they were ultimately overruled by the
majority who wanted this option included into the Constitution. As declared
by William Davie of North Carolina, impeachment was viewed as the “essential
security for the good behaviour of the Executive.”
Unlike the English impeachments, the American model would be limited to
judicial and executive officials. The standard itself however led to an
important exchange between George Mason and James Madison:
“Col. Mason. Why is the provision restrained to Treason & bribery only?
Treason as defined in the Constitution will not reach many great and
dangerous offense. Hastings is not guilty of Treason. Attempts to subvert
the Constitution may not be Treason as above defined – As bills of attainder
which have saved the British Constitution are forbidden, it is the more
necessary to extend: the power of impeachments.
He movd. to add after “bribery” “or maladministration.” Mr. Gerry seconded
him –
Mr. Madison[.] So vague a term will be equivalent to a tenure during
pleasure of the Senate.
Mr. Govr Morris[.] It will not be put in force & can do no harm – An
election of every four years will prevent maladministration.
Col. Mason withdrew “maladministration” & substitutes “other high crimes &
misdemeanors” (“agst. the State”).
In the end, the Framers would reject various prior standards including
“corruption,” “obtaining office by improper means”, betraying his trust to a
foreign power, “negligence,” “perfidy,” “peculation,” and “oppression.”
Perfidy (or lying) and peculation (self-dealing) are particularly
interesting in the current controversy given similar accusations against
President Trump in his Ukrainian comments and conduct.
It is worth noting that, while Madison objected to the inclusion of
maladministration in the standard in favor of the English standard of “high
crimes and misdemeanors,” he would later reference maladministration as
something that could be part of an impeachment and declared that impeachment
could address “the incapacity, negligence or perfidy of the chief
Magistrate.” Likewise, Alexander Hamilton referred to impeachable offenses
as “those offences which proceed from the misconduct of public men, or, in
other words, from the abuse or violation of some public trust.”17 These
seemingly conflicting statements can be reconciled if one accepts that some
cases involving high crimes and misdemeanors can include such broader
claims. Indeed, past impeachments have alleged criminal acts while citing
examples of lying and violations of public trust. Many violations of federal
law by presidents occur in the context of such perfidy and peculation –
aspects that help show the necessity for the extreme measure of removal.
Indeed, such factors can weigh more heavily in the United States Senate
where the question is not simply whether impeachable offenses have occurred
but whether such offenses, if proven, warrant the removal of a sitting
president. However, the Framers clearly stated they adopted the current
standard to avoid a vague and fluid definition of a core impeachable
offense. The structure of the critical line cannot be ignored. The Framers
cited two criminal offenses—treason and bribery—followed by a reference to
“other high crimes and misdemeanors.” This is in contrast to when the
Framers included “Treason, Felony, or other Crime” rather than “high crime”
in the Extradition Clause of Article IV, Section 2.
“[It is] indispensable that some provision should be made for defending the
Community against the incapacity, negligence or perfidy of the chief
Magistrate. The limitation of the period of his service, was not a
sufficient security. He might lose his capacity after his appointment. He
might pervert his administration into a scheme of peculation or oppression…
In the case of the Executive Magistracy which was to be administered by a
single man, loss of capacity or corruption was more within the compass of
probable events, and either of them might be fatal to the Republic.”
Capacity issues however have never been the subject of presidential
impeachments. That danger was later address in the Twenty-Fifth Amendment
Impeachable acts other than bribery and treason were meant to reach a
similar level of gravity and seriousness (even if they are not technically
criminal acts). This was clearly a departure from the English model, which
was abused because of the dangerous fluidity of the standard used to accuse
officials. Thus, the core of American impeachments was intended to remain
more defined and limited. It is a discussion that should weigh heavily on
the decision facing members of this House.
III. PRIOR PRESIDENTIAL IMPEACHMENTS AND THEIR RELEVANCE TO THE CURRENT
INQUIRY
As I have stressed, it is possible to establish a case for impeachment based
on a non-criminal allegation of abuse of power. However, although
criminality is not required in such a case, clarity is necessary. That comes
from a complete and comprehensive record that eliminates exculpatory
motivations or explanations. The problem is that this is an exceptionally
narrow impeachment resting on the thinnest possible evidentiary record.
During the House Intelligence Committee proceedings, Democratic leaders
indicated that they wanted to proceed exclusively or primarily on the
Ukrainian allegations and wanted a vote by the end of December. I previously
wrote that the current incomplete record is insufficient to sustain an
impeachment case, a view recently voiced by the New York Times and other
sources.
Even under the most flexible English impeachment model, there remained an
expectation that impeachments could not be based on presumption or
speculation on key elements. If the underlying allegation could be
non-criminal, the early English impeachments followed a format similar to a
criminal trial, including the calling of witnesses. However, impeachments
were often rejected by the House of Lords as facially inadequate,
politically motivated, or lacking sufficient proof. Between 1626 and 1715,
the House of Lords only held trials to verdict in five of the fifty-seven
impeachment cases brought. For all its failings, The House of Lords still
required evidence of real offenses supported by an evidentiary record for
impeachment. Indeed, impeachments were viewed as more demanding than bills
of attainder.
A bill of attainder involves a legislative form of punishment. While a
person could be executed under a bill of attainder, it was still more
difficult to sustain an impeachment action. That difficulty is clearly shown
by the impeachment of Thomas Wentworth, Earl of Strafford. Strafford w anas
a key advisor to King Charles I, and was impeached in 1640 for the
subversion of “the Fundamental Laws and Government of the Realms” and
endeavoring “to introduce Arbitrary and Tyrannical Government against Law.”
Strafford contested both the underlying charges and the record. The House of
Commons responded by dropping the impeachment and adopting a bill of
attainder. In doing so, the House of Commons avoided the need to establish a
complete evidentiary record and Stafford was subject to the bill of
attainder and executed. Fortunately, the Framers had the foresight to
prohibit bills of attainder. However, the different treatment between the
two actions reflects the (perhaps counterintuitive) difference in the
expectations of proof. Impeachments were viewed as requiring a full record
subjected to adversarial elements of a trial.
In the current case, the record is facially insufficient. The problem is not
simply that the record does not contain direct evidence of the President
stating a quid pro quo, as Chairman Schiff has suggested. The problem is
that the House has not bothered to subpoena the key witnesses who would have
such direct knowledge. This alone sets a dangerous precedent. A House in the
future could avoid countervailing evidence by simply relying on tailored
records with testimony from people who offer damning presumptions or
speculation. It is not enough to simply shrug and say this is “close enough
for jazz” in an impeachment. The expectation, as shown by dozens of failed
English impeachments, was that the lower house must offer a complete and
compelling record. That is not to say that the final record must have a
confession or incriminating statement from the accused. Rather, it was meant
to be a complete record of the key witnesses that establishes the full range
of material evidence. Only then could the body reach a conclusion on the
true weight of the evidence—a conclusion that carries sufficient legitimacy
with the public to justify the remedy of removal.
The history of American presidential impeachment shows the same restraint
even when there were substantive complaints against the conduct of
presidents. Indeed, some of our greatest presidents could have been
impeached for acts in direct violation of their constitutional oaths of
office. Abraham Lincoln, for example, suspended habeas corpus during the
Civil War despite the fact that Article 1, Section 9, of the Constitution
leaves such a suspension to Congress “in Cases of Rebellion or Invasion the
public Safety may require it.” The unconstitutional suspension of the “Great
Writ” would normally be viewed as a violation of the greatest constitutional
order. Other presidents faced impeachment inquires that were not allowed to
proceed, including John Tyler, Grover Cleveland, Herbert Hoover, Harry
Truman, Richard Nixon, Ronald Reagan, and George Bush. President Tyler faced
some allegations that had some common elements to our current controversy.
Among the nine allegations raised by Rep. John Botts of Virginia, Tyler was
accused of initiating an illegal investigation of the custom house in New
York, withholding information from government agents, withholding actions
necessary to “the just operation of government” and “shameless duplicity,
equivocation, and falsehood, with his late cabinet and Congress.” Likewise,
Cleveland was accused of high crimes and misdemeanors that included the use
of the appointment power for political purposes (including influencing
legislation) against the nation’s interest and “corrupt[ing] politics
through the interference of Federal officeholders.” Truman faced an
impeachment call over a variety of claims, including “attempting to disgrace
the Congress of the United States”; “repeatedly withholding information from
Congress”; and “making reckless and inaccurate public statements, which
jeopardized the good name, peace, and security of the United States.”
These efforts reflect the long history of impeachment being used as a way to
amplify political differences and grievances. Such legislative throat
clearing has been stopped by the House by more circumspect members before
articles were drafted or passed. This misuse of impeachment has been plain
during the Trump Administration. Members have called for removal based on a
myriad of objections against this President. Rep. Al Green (D-Texas) filed a
resolution in the House of Representatives for impeachment after Trump
called for players kneeling during the national anthem to be fired.20 Others
called for impeachment over President Trump’s controversial statement on the
Charlottesville protests. Rep. Steve Cohen’s (D-Tenn.) explained that “If
the president can’t recognize the difference between these domestic
terrorists and the people who oppose their anti-American attitudes, then he
cannot defend us.”22 These calls have been joined by an array of legal
experts who have insisted that clear criminal conduct by Trump, including
treason, have been shown in the Russian investigation. Professor Lawrence
Tribe argued that Trump’s pardoning of former Arizona sheriff Joe Arpaio is
clearly impeachable and could even be overturned by the courts. Richard
Painter, chief White House ethics lawyer for George W. Bush and a professor
at the University of Minnesota Law School, declared that President Trump’s
participation in fundraisers for Senators, a common practice of all
presidents in election years, is impeachable. Painter insists that any such
fundraising can constitute “felony bribery” since these senators will likely
sit in judgment in any impeachment trial. Painter declared “This is a bribe.
Any other American who offered cash to the jury before a trial would go to
prison for felony bribery. But he can get away with it?”
CNN Legal Analyst Jeff Toobin declared, on the air, that Trump could be
impeached solely on the basis of a tweet in which Trump criticized then
Attorney General Jeff Sessions for federal charges brought against two
Republican congressman shortly before the mid-term elections. CNN Legal
Analyst and former White House ethics attorney Norm Eisen claimed before the
release of the Mueller report (which ultimately rejected any knowing
collusion or conspiracy by Trump officials with Russian operatives) that the
criminal case for collusion was “devastating” and that Trump is “colluding
in plain sight.”26 I have known many of these members and commentators for
years on a professional or personal basis. I do not question their sincere
beliefs on the grounds for such impeachments, but we have fundamental
differences in the meaning and proper use of this rarely used constitutional
device.
As I have previously written, such misuses of impeachment would convert our
process into a type of no-confidence vote of Parliament. Impeachment has
become an impulse buy item in our raging political environment. Slate has
even featured a running “Impeach-O-Meter.” Despite my disagreement with many
of President Trump’s policies and statements, impeachment was never intended
to be used as a mid-term corrective option for a divisive or unpopular
leader. To its credit, the House has, in all but one case, arrested such
impulsive moves before the transmittal of actual articles of impeachment to
the Senate. Indeed, only two cases have warranted submission to the Senate
and one was a demonstrative failure on the part of the House in adhering to
the impeachment standard. Those two impeachments—and the third
near-impeachment of Richard Nixon—warrant closer examination and comparison
in the current environment.
A. The Johnson Impeachment
The closest of the three impeachments to the current (Ukrainian-based)
impeachment would be the 1868 impeachment of Andrew Johnson. The most
obvious point of comparison is the poisonous political environment and the
controversial style ofLincoln assassination, Johnson faced an immediate
challenge even before his acerbic and abrasive personality started to take
its toll. Adding to this intense opposition to Johnson was his hostility to
black suffrage, racist comments, and occupation of Southern states. He was
widely ridiculed as the “accidental President” and specifically described by
Representative John Farnsworth of Illinois, as an “ungrateful, despicable,
besotted, traitorous man.” Woodrow Wilson described that Johnson “stopped
neither to understand nor to persuade other men, but struck forward with
crude, uncompromising force for his object, attempting mastery without
wisdom or moderation.”28 Johnson is widely regarded as one of the worst
presidents in history—a view that started to form significantly while he was
still in office.
The Radical Republicans in particular opposed Johnson, who was seen as
opposing retributive measures against Southern states and full citizenship
rights for freed African Americans. Johnson suggested hanging his political
opponents and was widely accused of lowering the dignity of his office. At
one point, he even reportedly compared himself to Jesus Christ. Like Trump,
Johnson’s inflammatory language was blamed for racial violence against both
blacks and immigrants. He was also blamed for reckless economic policies. He
constantly obstructed the enforcement of federal laws and espoused racist
views that even we find shocking for that time. Johnson also engaged in
widespread firings that were criticized as undermining the functioning of
government— objections not unlike those directed at the current
Administration.
While Johnson’s refusal to follow federal law and his efforts to
disenfranchise African Americans would have been viewed as impeachable
(Johnson could not have worked harder to counterpunch his way into an
impeachment), the actual impeachment proved relatively narrow. Radical
Republicans and other members viewed Secretary of War Edwin M. Stanton as an
ally and a critical counterbalance to Johnson. Johnson held the same view
and was seen as planning to sack Stanton. To counter such a move (or lay a
trap for impeachment), the Radical Republicans passed the Tenure of Office
Act to prohibit a President from removing a cabinet officer without the
appointment of a successor by the Senate. To facilitate an impeachment, the
drafters included a provision stating that any violation of the Act would
constitute a “high misdemeanor.” Violations were criminal and punishable
“upon trial and conviction . . . by a fine not exceeding ten thousand
dollars, or by imprisonment not exceeding ten years, or both.” The act was
repealed in 1887 and the Supreme Court later declared that its provisions
were presumptively constitutionally invalid.
Despite the facially invalid provisions, Johnson was impeached on eleven
articles of impeachment narrowly crafted around the Tenure in Office Act.
Other articles added intemperate language to unconstitutional limitations,
impeaching Johnson for such grievances as trying to bring Congress “into
disgrace, ridicule, hatred, contempt, and reproach” and making “with a loud
voice certain intemperate, inflammatory, and scandalous harangues ”
Again, the comparison to the current impeachment inquiry is obvious. After
two years of members and commentators declaring a host of criminal and
impeachable acts, the House is moving on the narrow grounds of an alleged
quid pro quo while emphasizing the intemperate and inflammatory statements
of the president. The rhetoric of the Johnson impeachment quickly
outstripped its legal basis. In his presentation to the Senate, House
manager John Logan expressed the view of President Johnson held by the
Radical Republicans:
“Almost from the time when the blood of Lincoln was warm on the floor of
Ford’s Theatre, Andrew Johnson was contemplating treason to all the fresh
fruits of the overthrown and crushed rebellion, and an affiliation with and
a practical official and hearty sympathy for those who had cost hecatombs of
slain citizens, billions of treasure, and an almost ruined country. His
great aim and purpose has been to subvert law, usurp authority, insult and
outrage Congress, reconstruct the rebel States in the interests of treason…
and deliver all snatched from wreck and ruin into the hands of unrepentant,
but by him pardoned, traitors.”
The Senate trial notably included key pre-trial votes on the evidentiary and
procedural rules. The senators unanimously agreed that the trial should be
judicial, not political, in character, but Johnson’s opponents set about
stacking the rules to guarantee easy conviction. On these votes, eleven
Republicans broke from their ranks to insist on fairness for the accused.
They were unsuccessful. Most Republican members turned a blind eye to the
dubious basis for the impeachment. Their voters hated Johnson and cared
little about the basis for his removal. However, Chief Justice Chase and
other senators saw the flaws in the impeachment and opposed conviction. This
included seven Republican senators—William Pitt Fessenden, James Grimes,
Edmund Ross, Peter Van Winkle, John B. Henderson, Joseph Fowler, and Lyman
Trumbull—who risked their careers to do the right thing, even for a
president they despised. They became known as the “Republican Recusants.”
Those seven dissenting Republicans represented a not- insignificant block of
the forty-two Republican members voting in an intensely factional
environment. Taking up the eleventh article as the threshold vote on May 16,
1868, 35 senators voted to convict while 19 voted to acquit—short of the
two-thirds majority needed. Even after a ten-day delay with intense pressure
on the defecting Republican members, two additional articles failed by the
same vote and the proceedings were ended. The system prevailed despite the
failure of a majority in the House and a majority of the Senate.
The comparison of the Johnson and Trump impeachment inquiries is striking
given the similar political environments and the controversial qualities of
the two presidents. Additionally, there was another shared element: speed.
This impeachment would rival the Johnson impeachment as the shortest in
history, depending on how one counts the relevant days. In the Johnson
impeachment, Secretary of War Edwin Stanton was dismissed on February 21,
1868, and a resolution of impeachment was introduced that very day. On
February 24, 1868, the resolution passed and articles of impeachment
prepared. On March 2-3, 1868, eleven articles were adopted. The members
considered the issue to be obvious in the Johnson case since the President
had openly violated a statute that expressly defined violations as “high
misdemeanors.” Of course, the scrutiny of the underlying claims had been
ongoing before the firing and this was the third attempted impeachment.
Indeed, Congress passed legislation on March 2, 1867—one year before the
first nine articles were adopted. Moreover, Johnson actually relieved
Stanton of his duties in August 1867, and the House worked on the expected
impeachment during this period. In December 1867, the House failed to adopt
an impeachment resolution based on many of the same grievances because
members did not feel that an actual crime had been committed. There were
three prior impeachments with similar elements. When Stanton was actually
fired, Johnson’s leading opponent Rep.
Thaddeus Stevens of Pennsylvania (who had been pushing for impeachment for
over a year) confronted the House members and demanded “What good did your
moderation do you? If you don’t kill the beast, it will kill you.” With the
former termination and the continued lobbying of Stevens, the House again
moved to impeach and secured the votes. Thus, the actual resolution and
adoption dates are a bit misleading. Yet, Johnson may technically remain the
shortest investigation in history. However, whichever impeachment deserves
the dubious distinction, history has shown that short impeachments are
generally not strong impeachments.
While generally viewed as an abusive use of impeachment by most legal and
historical scholars, the Johnson impeachment has curiously been cited as a
basis for the current impeachment. Some believe that it is precedent that
presidents can be impeached over purely “political disagreements.” It is a
chilling argument. Impeachment is not the remedy for political disagreement.
The Johnson impeachment shows that the system can work to prevent an abusive
impeachment even when the country and the Congress despise a president. The
lasting lesson is that in every time and in every Congress, there remain
leaders who can transcend their own insular political interests and defy the
demands of some voters to fulfill their oaths to uphold the Constitution. Of
course, the Constitution cannot take credit for such profiles of courage.
Such courage rests within each member but the Constitution demands that each
member summon that courage when the roll is called as it was on May 16,
1868.
Part II begins with an analysis of the Nixon Impeachment inquiry…
http://ethicsalarms.com/2019/12/05/written-statement-of-prof-jonathan-turley-the-impeachment-inquiry-into-president-donald-j-trump-the-constitutional-basis-for-presidential-impeachment-part-ii/
Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into
President Donald J. Trump: The Constitutional Basis For Presidential
Impeachment” [PART II]
DECEMBER 5, 2019 / JACK MARSHALL
( Part I is here.)
Professor Turley’s testimony continues…
B. The Nixon Inquiry
The Nixon “impeachment” is often referenced as the “gold standard” for
impeachments even though it was not an actual impeachment. President Richard
Nixon resigned before the House voted on the final articles of impeachment.
Nevertheless, the Nixon inquiry was everything that the Johnson impeachment
was not. It was based on an array of clearly defined criminal acts with a
broad evidentiary foundation. That record was supported by a number of key
judicial decisions on executive privilege claims. It is a worthy model for
any presidential impeachment. However, the claim by Chairman Schiff that the
Ukrainian controversy is “beyond anything Nixon did” is wildly at odds with
the historical record. The allegations in Nixon began with a felony crime of
burglary and swept to encompass an array of other crimes involving political
slush funds, payments of hush money, maintenance of an enemies list,
directing tax audits of critics, witness intimidation, multiple instances of
perjury, and even an alleged kidnapping. Ultimately, there were nearly 70
officials charged and four dozen of them found guilty. Nixon was also named
as an unindicted conspirator by a grand jury. The convicted officials
include former Attorney General John N. Mitchell (perjury); former Attorney
General Richard Kleindienst (contempt of court); former Deputy Director of
the Committee to Re-elect The President Jeb Stuart Magruder (conspiracy to
the burglary); former Chief of Staff H.R. Haldeman (conspiracy to the
burglary, obstruction of justice, and perjury); former counsel and Assistant
to the President for Domestic Affairs to Nixon John Ehlichman (conspiracy to
the burglary, obstruction of justice, and perjury); former White House
Counsel John W. Dean II (obstruction of justice); and former special counsel
to the President Charles Colson (obstruction of justice). Many of the
Watergate defendants went to jail, with some of the defendants sentenced to
as long as 35 years. The claim that the Ukrainian controversy eclipses
Watergate is unhinged from history.
While the Ukrainian controversy could still establish impeachable conduct,
it undermines that effort to distort the historical record to elevate the
current record. Indeed, the comparison to the Nixon inquiry only highlights
the glaring differences in the underlying investigations, scope of
impeachable conduct, and evidentiary records with the current inquiry. It is
a difference between the comprehensive and the cursory; the proven and the
presumed. In other words, it is not a comparison the House should invite if
it is serious about moving forward in a few weeks on an impeachment based
primarily on the Ukrainian controversy. The Nixon inquiry was based on the
broadest and most developed evidentiary in any impeachment. There were
roughly 14 months of hearings – not 10 weeks. There were scandalous tape
recordings of Nixon and a host of criminal pleas and prosecutions. That
record included investigations in both the House and the Senate as well as
investigations by two special prosecutors, Archibald Cox and Leon Jaworski,
including grand jury material. While the inquiry proceeded along sharply
partisan lines, the vote on the proposed articles of impeachment ultimately
included the support of some Republican members who, again, showed that
principle could transcend politics in such historic moments.
Three articles were approved in the Nixon inquiry alleging obstruction of
justice, abuse of power, and defiance of committee subpoenas. Two articles
of impeachment based on usurping Congress, lying about the bombing of
Cambodia, and tax fraud, were rejected on a bipartisan basis. While the
Nixon impeachment had the most developed record and comprehensive
investigation, I am not a fan of the structure used for the articles. The
Committee evaded the need for specificity in alleging crimes like
obstruction of justice while listing a variety of specific felonies after a
catchall line declaring that “the means used to implement this course of
conduct or plan included one or more of the following.” Given its gravity,
impeachment should offer concrete and specific allegations in the actual
articles. This is the case in most judicial impeachments.
The impeachment began with a felony when “agents of the Committee for the
Re- election of the President committed unlawful entry of the headquarters
of the Democratic National Committee in Washington, District of Columbia,
for the purpose of securing political intelligence.” The first article of
impeachment reflected the depth of the record and scope of the alleged
crimes in citing Nixon’s personal involvement in the obstruction of federal
and congressional investigations. The article included a host of specific
criminal acts including lying to federal investigators, suborning perjury,
and witness tampering. The second article of impeachment also alleged an
array of criminal acts that were placed under the auspices of abuse of
power. The article addressed Nixon’s rampant misuse of the IRS, CIA, and FBI
to carry out his effort to conceal the evidence and crimes following the
break-in. They included Nixon’s use of federal agencies to carry out “covert
and unlawful activities” and how he used his office to block the
investigation of federal agencies. The third article concerned defiance of
Congress stemming from his refusal to turn over material to Congress.
These articles were never subjected to a vote of the full House. In my view,
they were flawed in their language and structure. As noted earlier, there
was a lack of specificity on the alleged acts due to the use of catch-all
lists of alleged offenses.
However, my greatest concern rests with Article 3. That article stated:
“In refusing to produce these papers and things Richard M. Nixon,
substituting his judgment as to what materials were necessary for the
inquiry, interposed the powers of the Presidency against the lawful
subpoenas of the House of Representatives, thereby assuming to himself
functions and judgments necessary to the exercise of the sole power of
impeachment vested by the Constitution in the House of Representatives.”
This Article has been cited as precedent for impeaching a president whenever
witnesses or documents are refused in an impeachment investigation, even
under claims of executive immunities or privileges. The position of Chairman
Peter Rodino was that Congress had the sole authority to decide what
material had to be produced in such an investigation. That position would
seem to do precisely what the article accused Nixon of doing: “assuming to
[itself] functions and judgments” necessary for the Executive Branch. There
is a third branch that is designated to resolve conflicts between the two
political branches. In recognition of this responsibility, the Judiciary
ruled on the Nixon disputes. In so doing, the Supreme Court found executive
privilege claims are legitimate grounds to raise in disputes with Congress
but ruled such claims can be set aside in the balancing of interests with
Congress. What a president cannot do is ignore a final judicial order on
such witnesses or evidence.
Putting aside my qualms with the drafting of the articles, the Nixon
impeachment remains well-supported and well-based. He would have been likely
impeached and removed, though I am not confident all of the articles would
have been approved. I have particular reservations over the third article
and its implications for presidents seeking judicial review. However, the
Nixon inquiry had a foundation that included an array of criminal acts and a
record that ultimately reached hundreds of thousands of pages. In the end,
Nixon was clearly guilty of directing a comprehensive conspiracy that
involved slush funds, enemy lists, witness intimidation, obstruction of
justice, and a host of other crimes. The breathtaking scope of the
underlying criminality still shocks the conscience. The current controversy
does not, as claimed, exceed the misconduct of Nixon, but that is not the
test. Hopefully, we will not face another president responsible for this
range of illegal conduct. Yet, that does not mean that other presidents are
not guilty of impeachable conduct even if it does not rise to a Nixonian
level. In other words, there is no need to out-Nixon Nixon. Impeachable will
do. The question is whether the current allegation qualifies as impeachable,
not uber-impeachable.
C. The Clinton Impeachment.
The third and final impeachment is of course the Clinton impeachment. That
hearing involved 19 academics and, despite the rancor of the times, a
remarkably substantive and civil intellectual exchange on the underlying
issues. These are issues upon which reasonable people can disagree and the
hearing remains a widely cited source on the historical and legal
foundations for the impeachment standard. Like Johnson’s impeachment, the
Clinton impeachment rested on a narrow alleged crime: perjury. The
underlying question for that hearing is well suited for today’s analysis. We
focused on whether a president could be impeached for lying under oath in a
federal investigation run by an independent counsel. There was not a debate
over whether Clinton lied under oath. Indeed, a federal court later
confirmed that Clinton had committed perjury even though he was never
charged. Rather, the issue was whether some felonies do not “rise to the
level of impeachment” and, in that case, the alleged perjury and lying to
federal investigators concerning an affair with White House intern, Monica
Lewinsky.
My position in the Clinton impeachment hearing was simple and remains
unchanged. Perjury is an impeachable offense. Period. It does not matter
what the subject happened to be. The President heads the Executive Branch
and is duty bound to enforce federal law including the perjury laws.
Thousands of citizens have been sentenced to jail for the same act committed
by President Clinton. He could refuse to answer the question and face the
consequences, or he could tell the truth. What he could not do is lie and
assume he had license to commit a crime that his own Administration was
prosecuting others for. Emerging from that hearing was an “executive
function” theory limiting “high crimes and misdemeanors” to misconduct
related to the office of the President or misuse of official power. While
supporters of the executive function theory recognized that this theory was
not absolute and that some private conduct can be impeachable, it was argued
that Clinton’s conduct was personal and outside the realm of “other high
crimes and misdemeanors.” This theory has been criticized in other articles.
This threshold argument, however, would appear again in the Senate trial.
Notably, the defenders of the President argued that the standard of “high
crimes and misdemeanors” should be treated differently for judicial, as
opposed to presidential, officers. This argument was compelled by the fact
that the Senate had previously removed Judge Claiborne for perjury before a
grand jury and removed Judge Hastings, who had actually been acquitted on
perjury charges by a court. I have previously written against this executive
function theory of impeachable offenses.
The House Judiciary Committee delivered four articles of impeachment on a
straight partisan vote. Article One alleged perjury before the federal grand
jury. Article Two alleged perjury in a sexual harassment case. Article Three
alleged obstruction of justice through witness tampering. Article Four
alleged perjury in the President’s answers to Congress. On December 19,
1998, the House approved two of the four articles of impeachment: perjury
before the grand jury and obstruction of justice. In both votes, although
Republicans and Democrats crossed party lines, the final vote remained
largely partisan. The impeachment was technically initiated on October 8,
1998 and the articles approved on December 19, 1998.
The Senate trial of President Clinton began on January 7, 1999, with Chief
Justice William H. Rehnquist taking the oath. The rule adopted by the Senate
created immediate problems for the House managers. The rules specifically
required the House managers to prove their case for witnesses and imposed a
witness-by-witness Senate vote on the House managers. Because the
Independent Counsel had supplied an extensive record with testimony from key
witnesses, the need to call witnesses like the Nixon hearings was greatly
reduced. For that reason, the House moved quickly to the submission of
articles of impeachment after the hearing of experts. However, the Senate
only approved three witnesses, described by House manager and Judiciary
Committee Chairman Henry Hyde as “a pitiful three.” It proved fateful. One
of the witnesses not called was Lewinsky herself. Years later, Lewinsky
revealed (as she might have if called as a witness) that she was told to lie
about the relationship by close associates of President Clinton. In 2018,
Lewinsky stated Clinton encouraged her to lie to the independent counsel, an
allegation raising the possibility of a variety of crimes as well as
supporting the articles of impeachment The disclosure many years after the
trial is a cautionary tale for future impeachments, as the denial of key
witnesses from the Senate trial can prove decisive.
The Clinton impeachment was narrow but based on underlying criminal conduct
largely investigated by an Independent Counsel. The allegation of perjury of
a sitting president was supported by a long investigation and extensive
record. Indeed, the perjury by Clinton was clear and acknowledged even by
some of his supporters. The flaws in the Clinton impeachment emerged from
the highly restrictive and outcome determinative rules imposed by the
Senate. In comparison, the Trump impeachment inquiry has raised a number of
criminal acts but each of those alleged crimes are undermined by legal and
evidentiary deficiencies. As discussed below, the strongest claim is for a
non-criminal abuse of power if a quid pro quo can be established on the
record. That deficiency should be addressed before any articles are reported
to the floor of the House.
D. Summary
A comparison of the current impeachment inquiry with the three prior
presidential inquiries puts a few facts into sharp relief. First, this is a
case without a clear criminal act and would be the first such case in
history if the House proceeds without further evidence. In all three
impeachment inquiries, the commission of criminal acts by Johnson, Nixon,
and Clinton were clear and established. With Johnson, the House effectively
created a trapdoor crime and Johnson knowingly jumped through it. The
problem was that the law—the Tenure in Office Act—was presumptively
unconstitutional and the impeachment was narrowly built around that dubious
criminal act. With Nixon, there were a host of alleged criminal acts and
dozens of officials who would be convicted of felonies. With Clinton, there
was an act of perjury that even his supporters acknowledged was a felony,
leaving them to argue that some felonies “do not rise to the level” of an
impeachment. Despite clear and established allegations of criminal acts
committed by the president, narrow impeachments like Johnson and Clinton
have fared badly. As will be discussed further below, the recently suggested
criminal acts related to the Ukrainian controversy are worse off, being
highly questionable from a legal standpoint and far from established from an
evidentiary standpoint.
Second, the abbreviated period of investigation into this controversy is
both problematic and puzzling. Although the Johnson impeachment progressed
quickly after the firing of the Secretary of War, that controversy had been
building for over a year and was actually the fourth attempted impeachment.
Moreover, Johnson fell into the trap laid a year before in the Tenure of
Office Act. The formal termination was the event that triggered the
statutory language of the act and thus there was no dispute as to the
critical facts. We have never seen a controversy arise for the first time
and move to impeachment in such a short period. Nixon and Clinton developed
over many months of investigation and a wide array of witness testimony and
grand jury proceedings. In the current matter, much remains unknown in terms
of key witnesses and underlying documents. There is no explanation why the
matter must be completed by December.
After two years of endless talk of impeachable and criminal acts, little
movement occurred toward an impeachment. Suddenly the House appears adamant
that this impeachment must be completed by the end of December. To be blunt,
if the schedule is being accelerated by the approach of the Iowa caucuses,
it would be both an artificial and inimical element to introduce into the
process. This is not the first impeachment occurring during a political
season. In the Johnson impeachment, the vote on the articles was interrupted
by the need for some Senators to go to the Republican National Convention.
The bifurcated vote occurred in May 1868 and the election was held just six
months later.
Finally, the difference in the record is striking. Again, Johnson’s
impeachment must be set aside as an outlier since it was based on a
manufactured trap-door crime. Yet, even with Johnson, there was over a year
of investigations and proceedings related to his alleged usurpation and
defiance of the federal law. The Ukrainian matter is largely built around a
handful of witnesses and a schedule that reportedly set the matter for a
vote within weeks of the underlying presidential act. Such a wafer-thin
record only magnifies the problems already present in a narrowly constructed
impeachment. The question for the House remains whether it is seeking simply
to secure an impeachment or actually trying to build a case for removal. If
it is the latter, this is not the schedule or the process needed to build a
viable case. The House should not assume that the Republican control of the
Senate makes any serious effort at impeachment impractical or naïve. All
four impeachment inquiries have occurred during rabid political periods.
However, politicians can on occasion rise to the moment and chose principle
over politics. Indeed, in the Johnson trial, senators knowingly sacrificed
their careers to fulfill their constitutional oaths. If the House wants to
make a serious effort at impeachment, it should focus on building the record
to raise these allegations to the level of impeachable offenses and leave to
the Senate the question of whether members will themselves rise to the
moment that follows.