WINTER 2020 | ISSUE NO. 2
The Quill A T
P A L M
B E A C H
A T L A N T I C
Conversations & Commentary from The LeMieux Center for Public Policy U N I V E R S I T Y
able to establish that the president in question had committed some crime under established law. The question instead was whether the crimes justified a president’s removal from office. The Framers of the Constitution insisted upon a specific standard for impeachment. To them, this was preferable to giving Congress discretion in defining what constitutes an impeachable offense. According to Article II, Section 4, a president or other executive or judicial branch officer can be impeached only for “treason, bribery, or other high crimes and misdemeanors.” The referenced crime of “treason” is elsewhere specifically defined in the Constitution, while “bribery” simply references a well-known official crime.
Impeachments, Presidential Power and the Rule of Law
With the “high crimes and misdemeanors” language, the Framers adopted a term of art that had existed in English law. The use of “other high crimes and misdemeanors” suggests that crimes that fall within these two categories are similar in gravity to the two enumerated crimes, treason and bribery. Generally, “high crimes” would indicate other felonious actions of great magnitude which imperil the security of the state and the people; in Alexander Hamilton’s phrasing from Federalist Paper No. 65, “injuries done immediately to the society itself.” Treason as defined by the Constitution is the most extreme example of a “high crime” — according to Article III, Section 3, literally “levying war against” the United States or aiding those who are. “High … misdemeanors” refer to less audacious actions that do not necessarily imperil the United States but are nonetheless harmful. Some, but certainly not all, scholars believe that “misdemeanors” simply means “misdeeds” that may or may not be criminal in nature.
By DR. JAMES A. TODD
Shortly before Christmas, the Democratic-led House of Representatives passed two articles of impeachment alleging that Trump pressured Ukraine’s president Volodymyr Zelensky to investigate a political rival — Joe Biden — with the intent to invite foreign interference in the 2020 Election. Democrats argue that Trump intended to hold up Ukrainian foreign aid until Ukraine announced a Biden investigation, which they claim is an impeachable abuse of power. The Trump impeachment is novel. It is the first presidential impeachment in which the essential facts — and the inferences to be drawn from these facts — are in dispute and where the alleged wrongdoing is not clearly defined as a violation of law. This differs from all past presidential impeachment inquiries. In the Johnson, Nixon and Clinton impeachments, the underlying facts were not really in dispute, and those prosecuting the impeachment were
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There is evidence from the Constitutional Convention debates that
any crime that President Trump committed in his Ukrainian dealings. They argue (again, with some plausible basis) that the Constitution’s impeachment standard embraces significantly more actions than criminal ones. The first article of impeachment, therefore, is for “abuse of power.”
CONTINUED FROM FRONT
the Framers considered vague, noncriminal standards for impeachment — most notably, “malpractice and neglect of duty,” “corruption,” and then “maladministration” — but rejected these as too easily abused by Congress. “Other high crimes and misdemeanors” replaced all of the previously considered standards. Experience has taught us that whether the president committed a crime is a much more objective inquiry than whether the president is administering the government properly.
“Abuse of Power” in the Constitution For the textual reasons stated above, “abuse of power,” standing alone, is far outside of the constitutional standard. It does not fit comfortably with the Constitution’s text and structure. In fact, as a standalone ground for impeachment, the phrase is inherently meaningless — a figure of speech rather than a cognizable crime that could itself be within the categories of high crimes and misdemeanors. It is similar in its vagueness to the non-criminal standards the Framers considered and rejected.
The Constitution’s text is clear that the Senate can only punish the impeached president by removing him from office and disqualifying him from future office. However, according to Article I, Section 3, a removed president is still subject to “Indictment, Trial, Judgment, and Punishment, according to Law.” This disclaimer is an extremely important one in understanding the purposes of impeachment. First, it suggests that impeachment is the sole remedy to deal with criminal behavior by a president or executive officer while he is in office (since the president constitutionally controls the executive function, he is not likely to prosecute himself or his officers). If a president could somehow be indicted, tried and punished while in office there arguably would be no need for impeachment. Second, the Framers thought it was important to indicate that impeachable offenses that lead to Senate conviction would likely be crimes of such magnitude that removal from office alone is not a sufficient penalty. Instead, impeachment and removal opens up the possibility of a broader criminal process. As Hamilton put it in Federalist Paper No. 65, impeachment does not “terminate the chastisement of the offender.” Third, subsequent legal jeopardy serves as a deterrent to a president who might be tempted to break the law when he has very little to lose — by accepting a bribe in exchange for a pardon on the last day of office, for example. Impeachment, with the possibility of later criminal charges, vindicates the principle that not even the president is above the law.
Furthermore, it is not uncommon for a sitting president to be accused by his political opponents of abusing his power. This is typical political rhetoric that is increasingly common in our polarized age. For the purposes of an impeachment, however, abuse of power must connect to some impeachable crime, in which case the ground for impeachment would not be the abuse of power but the impeachable crime. For example, the president has the power to appoint ambassadors. But if the president appoints an ambassador in exchange for a $1 million payment, he has abused his power of appointment. He has used this power to commit bribery, which is a violation of criminal law and is, in fact, one of the Constitution’s enumerated grounds for impeachment. But the president in this case would be impeached for bribery, not an “abuse of power.” The Framers were indeed concerned that the vast power of the president could give rise to his use of this power for criminal misdeeds. But rather than framing impeachment around the non-crime of “abuse of power,” as they could have done, they framed the Impeachment Clause around two specific crimes that serve as principal examples of “high crimes and misdemeanors.”
In the debate about the articles of impeachment, Democrats did not identify 2
It is clear that the Framers did not believe that the Constitution’s standard of impeachment would embrace presidential actions or inactions that Congress simply disapproves of. Despite how far the partisan nature of today’s politics has strayed from their vision of government, it is remarkable how presciently the Framers anticipated partisan impeachments. The temptation in Congress to take out frustrations with the president by using impeachment would, to the Framers, be an ever-present threat to democracy. Hence the need for the constitutionally-specified and narrow grounds for impeachment and a few additional safeguards. “Abuse of power” as a basis for impeachment would seem to run counter to the restraints the Framers prioritized.
impeachment could be to our democracy. And for an extra layer of insulation against a partisan impeachment of a president, the chief justice presides over the Senate trial only in a case of presidential impeachment. This avoids the real conflict of interest involved in the vice president presiding over a trial in which he stands to gain the presidency. The Framers did not want a president removed simply because the faction controlling the House of Representatives wanted him out of office — whether the motive was genuine frustration, to satisfy an impeachment-hungry media, or to fulfill campaign promises.
Despite their concerns, the Framers put very little in the Constitution to stop political impeachments from originating in the House. The House has the “sole Power of Impeachment.” Being solely The Impeachment Process lodged in the House, it is not shared or checked by the other parts of government. To remove the president, two-thirds There are no constitutional standards of the Senators must agree with the governing impeachment as long as House of Representatives that the Congress does not use the “power of president has committed an offense impeachment” to violate some express that warrants his removal from office. limit on its power, such as to pass a Bill The accusations that have no criminal of Attainder (a proclamation of guilt predicate are virtually guaranteed to fail and a sentence without trial). That is, this test; the impeachments that involve the impeachment is merely a formal serious allegations have at least a chance accusation, akin to an indictment. A to succeed. proclamation There must be of guilt and The Framers did not want a an agreed-upon punishment is an offense where president removed simply because unconstitutional the president’s the faction controlling the House of attainder, not an culpability is “impeachment.” Representatives wanted him out of clear to the Short of that, office — whether the motive was vast majority the courts are genuine frustration, to satisfy an of observers, very unlikely to including a Senate impeachment-hungry media or to review whether that in the case of fulfill campaign promises. an impeachment an impeachment inquiry begun in trial would be the House is in bound by a special oath to be impartial. accordance with the Constitution. The Constitution’s strong presumption When the process moves to the against removal is further amplified Senate trial, however, there are some when one considers that, originally, constitutional reasons to believe that the vice president was the runner-up in the full panoply of rights afforded to the Electoral College, not — as today an accused person in an ordinary trial — the handpicked running mate of the should be available to the president. president. The Framers wisely foresaw While the Supreme Court has been that a vice president could be in league reluctant to second-guess Senate with the majority faction in Congress in impeachment trials of impeached judges conspiring against the president. This in the past, the Court has never held reinforces just how damaging a “political” that the Constitution does not apply to 3
them. Once a person receives a majority of electoral votes, he has a constitutional right to occupy the presidential office. Impeachment denies him that right, taking away the vested interest he has in the term of office. Thus, it is hardly conjecture to state that a president has a Fifth Amendment right to due process of law before he loses this liberty or property. More important than this loss of office and future income, impeachment and removal exposes a president to imminent criminal prosecution — a prosecution that will likely never occur if the president remains in office. For this reason, the president should be afforded procedural rights available to any accused person with the exception of the jury trial. The Constitution explicitly exempts impeachment trials from Article III’s jury trial guarantee — the only time in the Constitution where an impeachment trial is singled out as exempt from a civil liberties protection for the accused. Given the gravity of an impeachment, Hamilton in Federalist 66 argued that the Senate is more likely than an ordinary jury to render a just verdict; and since the Supreme Court may be asked to hear a subsequent criminal prosecution, the full Court itself should not be the “jury.”
Arthur Brooks:
In December 2019, Dr. Arthur Brooks, professor of the Practice of Public Leadership at the Harvard Kennedy School and former president of the American Enterprise Institute, spoke to students and community guests at Palm Beach Atlantic University. Brooks shared about the political divide in the United States and offered the audience solutions for civil and courage-filled change. ---
See back page or visit www.lemieuxcenter.org for upcoming events!
None of this is to say that the president is above the law. The president, like an ordinary citizen, may not break a law, and a serious crime gives rise to a legitimate impeachment as the start of an ordinary criminal prosecution. And the Framers knew that since a sitting president could not be indicted for crimes, there must be a legislative branch impeachment power that, once exercised, cannot be preempted or undone by presidential pardon. For that reason, it is a gravely serious constitutional moment — one not to be pursued for partisan reasons. When the impeachment power is abused — as all powers can be abused — it is inconsistent with the rule of law and with popular will. It puts Congress above the law.
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Dr. James A. Todd is assistant professor of politics at Palm Beach Atlantic University, and earned both his J.D. and Ph.D. from the University of Alabama.
Visit www.floridamade.net All proceeds support The LeMieux Center for Public Policy.
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From the desk of Senator LeMieux I am pleased to welcome you to our second edition of The Quill! This month we are excited to announce an amazing event at the LeMieux Center. The Right Honorable Tony Blair, Prime Minister of Great Britain and Northern Ireland (1997-2007) will join us on Thursday, February 6th for a conversation of consequence with the student body and community. If you would like to attend, please visit www. pba.edu/calendar. This is a ticketed event. This will be the first time the LeMieux Center has hosted a former head of state. Prime Minister Blair is in many ways the most important political figure of the last years of the twentieth century. His rallying of the world to end the genocide in the Balkans was perhaps his finest hour. A friend to America in both Democratic and Republican administrations, Blair’s experience
working with Presidents Clinton, Bush and Obama will provide a unique insight into the inner workings of the American presidency from across the pond. Blair also has tremendous knowledge and experience in the Middle East having not only served as Middle East Envoy for the United Nations, European Union, United States and Russia, but also as a war time Prime Minister during the war in Iraq. The United States can count few better friends than Prime Minister Blair. I hope you will join us on February 6th for this extraordinary event. Thank you to the LeMieux Center Board of Advisors for making this evening possible. Board Member Richard Reikenis deserves a special thanks for his outreach to the Prime Minister.
George S. LeMieux U.S. Senator & Founder of The LeMieux Center for Public Policy
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Center announces Freidheim Fellows
Palm Beach Atlantic University P.O. Box 24708 West Palm Beach, FL 33416-4708
The Freidheim Fellows program (formerly known as LeMieux Fellows) supports two students who pursue an independent study of current or emerging public policy issues concerning individual freedoms, values, rights, religious liberties and institutions in the United States. The program is named for donors Marguerite “Mitzi” Freidheim (who serves on the LeMieux Center advisory board) and her husband of 56 years, Cyrus. Read more at:
www.lemieuxcenter.org
LeMieux Center Advisory Board Brian P. Burns, Burns Law Enterprises, LLC. Jim Burns, Kohlberg Kravis Roberts & Co. James Donnelly, Castle Group Bob Dunkin, Cresset Wealth Advisors Mary Jo Finocchiaro, BRE Hotels & Resorts Frances Fisher, Dedicated Volunteer Mitzi Freidheim, Dedicated Volunteer Gay Hart Gaines, Dedicated Volunteer Robert Ganger, Gulf Stream Consulting Group Robert D. Helmholdt, D.D.S., Retired Orthodontist Hannes Hunschofsky, Dedicated Volunteer
Josh Kellam, ESG Companies Michele Merrell, Merrell Consulting Group Mario Murgado, Brickell Motors Joe Negron, GEO Group, Inc. Beth Neuhoff, Neuhoff Communications Robert E. O’Neil, The Stronach Group John Radtke, Advisors Asset Management, Inc. J. Kimble Vardaman Ratliff, Jr., Southwood Family Holdings, LLC Richard Reikenis, Reikenis & Associates, LLC. Nick Sadowsky, UBS Financial Services Brad Saft, EverBright Media
Academic Advisors Dr. Robert Lloyd, Loreen Beisswenger Farish Chair for Political Thought, Palm Beach Atlantic University
Tom Rooney, Congressman & LeMieux Senior Fellow