Sunday, 27 Sep 2020

Opinion | The Best Way to Determine if Trump Deserves Impeachment

What’s an impeachable offense? Has President Trump really committed one?

To answer these questions, it’s a good idea to read the Declaration of Independence.

Drafted principally by Thomas Jefferson, the Declaration offers a list of grievances against “the present King of Great Britain,” whose history is one “of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States.”

Among those injuries and usurpations:

“He has refused his Assent to Laws, the most wholesome and necessary for the public good.”

“He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.”

“For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments.”

The Declaration looks a lot like Articles of Impeachment. That’s no coincidence. Since 1635, impeachment had been discussed intensely in the American colonies.

Before and after independence, Americans had been converging on novel understandings of what the impeachment weapon was all about. John Adams gave a strong signal in counting impeachment among the fundamental “Rights and Privileges of Englishmen.”

Though the idea of impeachment originated in England, it had been thoroughly Americanized, in the sense that it was reformulated as a result of the rapidly growing commitment to self-government. In the colonies, impeachment became the mechanism by which legislative institutions, subject to popular control, could remove executive and judicial officers — including agents of the king — for egregious wrongdoing.

In prominent cases, the colonies borrowed terms from English law to describe the legitimate grounds for impeachment: high crimes and misdemeanors.

At the Constitutional Convention and during the ratification debates, many people feared that the document’s creation of a powerful president was a betrayal of the principles for which the American Revolution had been fought. Edmund Randolph contended that with its broad grant of power to the president, the proposed Constitution would be “the fetus of monarchy.” Hugh Williamson went for the jugular, saying that the nation would have “an elective king.”

The impeachment provision was a direct response to such objections. The phrase “high crimes and misdemeanors” was introduced by George Mason, who wanted to ensure that the president could be impeached for “great and dangerous offenses.”

Mason’s phrase had a well-understood meaning. It was anything but a punt. It was not a grant of discretion to the House of Representatives.

It was also meant to reduce the risk that impeachment would be a partisan matter, in which a president’s critics would seek to undo the results of elections and in which the president’s supporters would defend him no matter what. The framers’ goal was to discipline and constrain political debates.

Prominent among the category of high crimes and misdemeanors would be “a scheme of peculation or oppression” (a concern of James Madison, who was focusing on both economic self-dealing and violations of civil rights); interference with the democratic process in procuring the office “in the first instance” (Mason, who was concerned with corruption and bribery in connection with presidential elections); betrayal of “trust to foreign powers” (Madison again, who was concerned with disloyalty); and trampling “upon the rights of freemen” (an anonymous commentator in Massachusetts, writing under the name of Cassius, who was concerned with invasions of liberty).

In short, the constitutional standard was meant to capture egregious abuses of the public trust — in Alexander Hamilton’s words, offenses “of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself.”

In light of the historical background, we should be able to see why so many Democrats have been right to be cautious about impeachment proceedings against Mr. Trump. Untruthful tweeting, barbaric rhetoric, apparent indifference to climate change, a proposed citizenship question on the census, restrictions on entry into the United States by people from specified countries — none of these can easily be counted as a high crime and misdemeanor.

The constitutional background also helps explain the game-changing impact of President Trump’s conversation with Ukrainian President Volodymyr Zelensky. The facts are still emerging, but it is reasonable to worry that the president may have abused his authority in two different ways.

First, he appears to have pressed the leader of a foreign country to investigate a political rival — and thus to interfere with the democratic process in the United States. Second, he appears to have pressed that leader to commence a criminal investigation of two American citizens — and thus to intrude on civil liberty (assuming, as it appears, that the investigation would have been baseless). In the coming weeks, the House of Representatives will have to get clear on exactly what happened here, and also on whether other potential grounds for impeachment warrant serious consideration under the legal standard.

At age 78, Jefferson feared, “Our government is now taking so steady a course, as to shew by what road it will pass to destruction, to wit, by consolidation first; and then corruption, it’s necessary consequence.” Impeachment was meant to be the principal line of defense against that consequence.

Cass R. Sunstein teaches at Harvard Law School and is the author of “Impeachment: A Citizen’s Guide.”

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