While I may be wrong, I believe there are good grounds for impeaching presidents. I just don’t think the House has chosen wisely in its effort to define what they are.
Consider the second proposed article of impeachment. It essentially charges the president with “obstructing Congress” by refusing to comply with Congressional subpoenas. My problem here is that I don’t think a President is required to do whatever Congress orders him to do. As I see it, refusal to comply with a subpoena is a perfectly valid way of contesting its legality. As best I recall, it is not uncommon for a party in litigation to refuse to comply with a subpoena, as one of the ways of getting a court to decide whether the subpoena is legitimate. And it seems to me that in cases involving the separation of powers, it’s similarly legitimate for a president to refuse to comply with a subpoena, anticipating that Congress would then have to go to court to seek to enforce it.
By way of analogy, in order to challenge the validity of Jim Crow laws, Rosa Parks had to “violate the law,” triggering her arrest for refusing to sit in the back of the bus. This was risky, but a legitimate way to get judicial review of the constitutionality of the law in question. In order to get the courts to consider his status as a conscientious objector, Mohammed Ali had to “violate the law” by refusing to submit to the military draft. Risky again, but legitimate. The courts have developed a doctrine of “standing,” a doctrine designed to prevent just anybody from asking the courts to decide purely hypothetical questions. “Standing” means that to challenge a law, you have to be actually affected by it. For reasons of “standing,” violating a law is sometimes required in order to get a court to consider its validity. If you want to challenge a local zoning law in court, you may have to violate the law (as interpreted by the zoning board) or you won’t have standing. If you think a provision of the Internal Revenue Code is unconstitutional, you’ll probably have to violate the I.R.S.’s interpretation of the law, getting assessed taxes and penalties, before you’ll have standing to challenge that law in court. There were various examples of this in my own practice of employment law. Often, it’s risky. If you lose such challenges, you suffer the consequences. But if you win such challenges, the ultimate prize is a finding that you were actually within your rights all along – in effect a ruling that, like Rosa Parks and Muhammed Ali, you were never really in violation of the law in the first place.
If Congress were King, I’d favor the impeachment of presidents for refusing to comply with its subpoenas. But Congress is not King. In our system of law, it is the Courts that are the arbiter of what is and isn’t against the law. It seems to me that impeaching a president for refusing to comply with Congressional subpoenas that haven’t been considered and approved by the Judiciary turns the separation of powers on its head. If Congress starts removing presidents just because those presidents don’t submit to its orders, I fear for the balance of power that is the cornerstone of our system of government.
Consider next the first article of impeachment. In it, the House is charging the president with abuse of power— specifically, by pressuring a foreign government to take an action that would interfere in the U.S. electoral process . Now, I favor impeaching presidents for anything that would interfere with the U.S. electoral process, but I find an important distinction between things that would interfere in the process and things that could affect the outcome. Specifically, I find it helpful to distinguish between three types of conduct that might be considered potential interference.
The first type I’ll call “direct” interference in the electoral process itself. Impeding access to the polls. Casting fraudulent ballots. Bribing election officials. Falsifying results. I think pressuring a foreign government to engage in such direct interference surely ought to be grounds for removal from office. But such direct interference is not what the House is alleging.
Rather, the House is alleging pressuring a foreign government to take action that could be expected to influence some U.S. voters, and thus, the election outcome. In my view, the conduct charged raises serious questions about when and why actions taken on the world stage that could affect election outcomes constitute “interference” with the electoral process. If the president succeeded in pressuring Iran to cease its nuclear weapons development, there’s little doubt that such action could affect the election outcome in the president’s favor, but I can’t see that the same as interference in the process. Would pressuring Saudi Arabia to investigate the murder of Jamal Khashoggi result in “interference” in our elections if it affected the outcome? Would pressuring North Korea to investigate the treatment of U.S. student Otto Warmbier, if such an investigation benefited the incumbent president? In my view, we want our presidents to pressure foreign governments, and it makes no difference to me that, if the pressure works, the result would influence voters in favor of the president or his party.
Two of the words I find most troubling in the Article proposed by the house are the little words, “that would.” The President is not even accused of soliciting action “for the purpose of” influencing the election. He is accused of seeking action “that would” influence the election, i.e., the election outcome. One might argue that Lincoln saw the Emancipation proclamation as something “that would” help him win re-election. One might argue that FDR saw the New Deal as something “that would” help him win re-election. One might argue that Lyndon Johnson saw the Warren Commission’s investigation into the assassination of JFK as something “that would” help him win re-election.. Parties and candidates are always doing things for political purposes, i.e., doing things that will enhance their prospects for re-election. I just can’t conceive of impeaching presidents for conduct because their actions would “interfere with elections” by having an impact on election outcomes.
My view does not change simply because the target of the requested investigation is a political opponent or relative of a political opponent. Many Presidents, from Abraham Lincoln to Jimmy Carter and Ronald Reagan, have been embarrassed by the conduct of close relatives. Imagine that, in some future election cycle, evidence surfaces that suggests that Opponent O’s cousin may be conspiring with foreign companies to import drugs into the U.S. Obviously, announcement of an investigation into such a possibility might embarrass Opponent O and thereby affect the election outcome. Do we want to discourage President P from soliciting a foreign country to undertake an investigation of the matter, because such an investigation would amount to interference with the election? I think not.
I would suggest that there is a third category of arguable election “interference” – and I think many of those who favor the impeachment of Mr. Trump may be motivated by the belief that his conduct falls into this third category. I’ll call it the Fake News Category. Impeachable offenses in that category might include, say, doctoring a videotape of one’s political opponent to make it appear she said something she really didn’t. Photoshopping an opponent’s face onto a picture of someone doing something despicable. Making up fake news stories for the purpose influencing votes. In my view, this sort of conduct – widely acknowledged to be on the rise, widely predicted to become even more common in the future – is not direct interference with the electoral process. But, to me, it is still problematic, even thought it is designed to affect election outcomes rather than election processes. In my view, creation of such fraudulent news poses a threat to the integrity of our electoral outcomes every bit as serious as direct interference with processes, like stuffing ballot boxes, etc. I could favor articles of impeachment that directly accuse an incumbent president of intentionally fabricating such fake news for the purpose of affecting election outcomes. And I suspect that Trump’s opponents believe that the President’s solicitation of Ukraine was tantamount to fabricating fake news. But the Article the House is now considering does not accuse the president of fabricating fake news. Rather, it accuses him of soliciting an investigation that would influence U.S. voters.
Nowhere is free speech more important than in the political and electoral process. Charges of fabricating “fake news” are essentially charges of intentional fraud on the electorate. An essential element of fraud is a misstatement of fact, known to be false when made, and made for the purpose of inducing someone to rely on the false statement to their detriment. Intentionally creating fake news for the purposes of misleading the electorate amounts to such fraud, and should not be tolerated. But calling for an investigation into smoke is not the same as asserting the existence of fire when one knows there is in fact no fire. In my view, if a President thinks she sees smoke, even about a political opponent, calling for an investigation to determine if there is a fire strikes me as a very legitimate use of power – and one we should want to encourage in our presidents, not despite a possible impact on the outcome of elections but because of such impacts, in which investigations help to bring out facts and in which the electorate is able to assess thje evidence and how that evidence impacts their votes. Even now, members of the House are calling for an investigation of the President, anticipating that it will affect the outcome of upcoming elections Should that turn their very votes for impeachment into impeachable offenses themselves? Do we want a world in which all our elected representatives risk impeachment any time they call for investigations into their opponents?
Some, I suspect, would say that Trump’s calling for an investigation of Hunter Biden was tantamount to a fraudulent falsification of fact because allegations of impropriety by Biden have already been “discredited.” But Ukraine is a country with a history of corruption. The prior investigation I’m aware of only found no evidence of a violation of Ukranian (not U.S.) law. Was the prior investigation thorough? Unbiased? Not itself the result of corruption? Might a new investigation unearth evidence of a violation of U.S. law, or simply information the U.S. electorate might find relevant to its voting in an upcoming election? Investigations are meant to dig deeper into the truth. In my view, calling for them does not come close to the kind of manufacture of fake news that I would consider good grounds for impeachment.
For these reasons, I am not a fan of the House’s articles of impeachment, as drafted. That said, there are other grounds for impeachment I would not mind seeing the House approve. If Mr. Trump is suspected of fabricating false statements in order to affect election outcomes, I say charge him with fraud on the electorate. If the evidence supports the charges, I say remove him from office because of it. In fact, I’ll go even further. Just as I believe that impeaching for bribery will tend to discourage bribery and impeaching for cover-ups will tend to discourage cover-ups, I believe that impeaching for eating hamburgers will tend to discourage eating hamburgers. What constitutes good ground for impeachment is a political question, not a legal one. And I believe the grounds chosen can be expected to have an in terrorem effect on the behavior of future presidents, discouraging them from engaging in whatever type of conduct is seen as grounds for impeachment – even if its eating hamburgers.
As a result, while I oppose impeaching presidents for refusing to comply with Congressional subpoenas, and I oppose impeaching presidents for pressuring foreign governments to conduct investigations that could affect U.S. election outcomes, I would LOVE to see Congress impeach this president (and several of their own number) for “Fomenting National Divisiveness.” As I see it, particulars to such articles might include such things as “Making public statements and otherwise manifesting such extreme disrespect for others as to exceed the bounds of propriety in a pluralistic society.” Evidence in support of such charges could certainly include fabrication of false news stories, calling for investigations of opponents in bad faith, etc– but the gist of such charges would be the disrespect and divisiveness involved. If presidents (and members of Congress) were to fear impeachment for “fomenting national divisiveness,” I believe they would be influenced to call for greater harmony; that they would tend to manifest greater respect for those who disagree with them; that political rhetoric would soften, and that civility in political debate would increase. In my view, those would be very good results –not for one party or the other, but for the country as a whole.