Cass Sunstein, a Harvard Law School professor and author of the just published title Impeachment: A Citizen's Guide (Harvard University Press), pointed most specifically to the investigation by special counsel Robert Mueller of the Trump campaign's possible collaboration with Russia during the 2016 campaign. In Sunstein's recounting, the Framers worried at the Constitutional Convention about the possibility that the president might attain office through some corrupt means.
The possibility of enlisting a foreign adversary to gain the White House? "That's worse," Sunstein told his interviewer, Jeffrey Rosen, the center's president and a law professor at George Washington University. To avoid the partisan pitfall, Sunstein, a former Obama administration official, elaborated not by referring to Trump but by re-hypothesizing a collaboration between a Democratic candidate and a different foreign adversary, China.
With each passing day, it becomes more evident that the Trump campaign behaved as though it had been corrupted by Russian agents, but the evidence of active "collusion" is fragmentary and disputed. Son-in-law Jared Kushner's meeting in June 2016 with a Russian lawyer who promised dirt on Trump's Democratic opponent Hillary Clinton would seem to be a smoking gun but for Kushner's insistence that nothing came of it.
Trump himself has repeatedly denied any collusion with the Russians and belittled the accusations and the accusers. He went even further over the lines of normal respectability this weekend [Nov. 11] by telling reporters after a meeting with the Russian president Vladimir Putin that he credits Putin's denials of meddling over the formal assessment to the contrary by the U.S. intelligence community. Adding gratuitous insult to traitorous injury, he dismissed the former CIA director John Brennan, the former director of national intelligence James Clapper, and fired FBI director James Comey as "political hacks."
Trump's own CIA director, Michael Pompeo, responded with a statement reaffirming his belief in the January 2017 assessment. "The intelligence assessment with regard to Russian election meddling has not changed," Pompeo said blandly. Sen. Ben Cardin, a Maryland Democrat and member of the Senate Intelligence Committee, called Trump's statements "outrageous." From a different perspective, Bill Kristol, a "Never Trump" conservative columnist, called Trump's statements an effort to "help lay the groundwork for ending" the Russia investigation.
The focus on the Russia investigation is understandable, but it partakes to some extent of what Sunstein described as the error in treating impeachment in legal instead of political terms. The Framers adopted the phrasing "high crimes and misdemeanors" as a term well understood in the 18th century to denote misconduct in public office. At the Constitutional Convention, James Madison called impeachment a remedy "against the incapacity, negligence, or perfidy of the chief Magistrate." In Federalist No. 65, Alexander Hamilton called impeachment a "political" action to be taken against an official for "the abuse or violation of some public trust."
Thus, as Sunstein put it, some presidential crimes may not be impeachable offenses — for example, jaywalking or tax fraud — and some impeachable offenses may not be crimes at all. Trump's firing of Comey might have been "fine" in a general context, Sunstein said, but arguably an impeachable offense if the aim was to "prevent an investigation of horrible things." That would be true, Sunstein added. even if it did not amount to obstruction of justice. "I wouldn't make a fetish of the term," he said.
In like vein, several legal commentators have cautioned against overemphasizing "collusion" as the object of the Russia investigation — a term, they note, with no special legal significance. "There is a range of different kinds of collusion," says Ilya Somin, a constitutional law professor at George Mason University's Antonin Scalia Law School, "and a range of degrees of collusion." In any event, Somin adds, "we simply don't have enough evidence yet to know."
The liberal billionaire Ton Steyer, who claims to have 2 million signatures for his petition to impeach Trump, has a scatter-shot bill of particulars against Trump that goes beyond the Russia issue. He accuses Trump of exploiting the presidency "for his personal gain" and treating the government "like a family enterprise." Those accusations seem to channel Madison and Hamilton, but others go somewhat afield into policy disagreements on issues ranging from immigration and health care to climate change and North Korea.
The conventional wisdom, ever since John F. Kennedy celebrated President Andrew Johnson's acquittal in his book Profiles in Courage, has argued against Congress impeaching the president over policy disagreements. On health care, however, Steyer aptly calls Trump's "sabotage" of the Affordable Care Act a failure to execute the law. Articles of impeachment could cite Trump's careless attitude toward the Take Care Clause in other contexts. Steyer cites Trump's "conduct during Charlottesville." Somin points to Trump's campaign and post-election "encouragement of violence" and, more generally, his "breach of constitutional norms."
The case for Trump's impeachment, in short, is substantial even if a political impossibility as long as Republicans cling to their historically unpopular president. The case for impeaching Trump for "high crimes and misdemeanors" is long and strong, but is akin to nailing Jello to a wall. There is a lot there, but it's very hard to make it stick.
More on the topic next week.
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