DFOC’s Jacobson: What Constitutes “High Crimes and Misdemeanors?”

Democratic Foundation of Orange County head Dan Jacobson sent this well written letter to friends of the DFOC, and we’re running it here:

Dear Members of the Foundation and Friends of the Foundation,

 

Reason For This Letter:

 

I write to address a vital question:      What Are “High Crimes and Misdemeanors?”  Please note that I address this question not with political fervor; but, rather with cool, academic methodology.  Real learning generally doesn’t take place by hearing cheering political crowds.  It takes place through the process of dispassionate study.  If we are to call for Donald Trump’s impeachment, that call must be grounded in a genuine understanding of the constitutional grounds for impeachment.  This letter offers that grounding.

In other words, an understanding of the phrase “High Crimes and Misdemeanors” will allow a call for Trump’s impeachment to be grounded in knowledge.  That knowledge will empower us to speak with political fervor.

Common misconception:

Many or most Americans know that the constitution says that the president can be impeached for “High Crimes and Misdemeanors.”  But, there is a common misconception as to what the constitution means by that phrase.  This letter is meant to dispel that misconception.

Three authoritative sources on the subject discuss the posed question, below.  Those authoritative sources are Harvard Constitutional Law Professor Lawrence Tribe, President Ford, and President Nixon.  Then, appended to this letter are the actual Articles of Impeachment against President Nixon.  These Articles were voted out of the House Judiciary Committee in 1974 just before President Nixon’s resignation.

First a common-sense discussion of “power versus the abuse of power”.

Power vs. Abusive of Power:

Many say with a casual attitude that Donald Trump had the power to fire FBI Director Comey, that Trump had the power to pardon Ex-Sheriff Joe Arpaio, etc.  But, to make such assertions is to answer the wrong question.  There’s power and there’s abuse of power.  My neighbor has the power to holler at me for no reason, but to do so would abuse that power.  As a Law Professor, I have the power to give an “F” to a student who I don’t like, even if that student is excellent.  But to do so would be to abuse my power.

In fact many of you will remember that the Articles of Impeachment Against President Nixon included allegations of the abuse of power.

If, as many of us suspect, Trump fired the FBI Director to stop the Trump/Russia investigation, no one could reasonably argue that Trump did so without the appropriate power; but, no one could reasonably argue that doing so was not an abuse of power.  If Trump pardoned Ex-Sheriff Arpaio only to send a message to Trump insiders that he “has their back”, and will pardon them if they stay silent or lie, no one could reasonably argue that Trump didn’t have the power to pardon the ex-sheriff; but, by the same token no one could reasonably argue that issuing that pardon wasn’t an abuse of power.

Actually committing certain crimes, as spelled out in the penal code are probably impeachable offenses.  But with rare exception that’s not because those crimes are defined in the penal code.  Rather and as you’ll see, the reason for such crime commitment, and the reason that other actions are impeachable offenses is that the actions constitute abuses of power, or they seriously endanger our very system of government.

Harvard’s Constitutional Law Professor Lawrence Tribe:

In his work entitled “Tribe Defining ‘High Crimes and Misdemeanors’: Basic

Principles,” 67 Geo. Wash. L. Rev. 712, 721 (1999)[1], Lauded Harvard Constitutional Law

Professor Tribe explained, “the general rule [is] that an impeachable offense must itself severely

threaten the system of government or constitute[s] a grievous abuse of official power.”  (Tribe,

at page 721.)  In reaching this conclusion Tribe explained that in other parts of the Constitution,

the Framers have no problem in naming specific crimes (Tribe, at page 717); but, in the

Impeachment Clause the Framers named only two crimes and then go on with the familiar “other

high Crimes and Misdemeanors” phrase.

Specifically, the Impeachment Clause says that impeachment is meant for those who

commit, “Treason, Bribery, or other high Crimes and Misdemeanors.”  (U.S. Constitution, Art. 2,

Sec. 4.)  Why not name these “other” Crimes?  Tribe explains that that’s because penal violations

aren’t necessary – an attack on our system of government of the like of Treason and Bribery, or

serious abuse of power is necessary:

“What distinguishes certain offenses as ‘high Crimes and Misdemeanors’ must be not the fact that serious crimes are involved but the fact that those offenses are similar, in ways relevant to what the devices of impeachment and removal are for, to treason and bribery. But that in turn means that, like treason and bribery, high crimes and misdemeanors, as terms of art, must refer to major offenses against our very system of government, or serious abuses of the governmental power with which [a President] has been entrusted.”  (Id. at  718.)

So, what is a “serious abuse[] of  governmental power” or a “major offense[] against our very system of government?”  Go through a mental checklist of the offenses that Trump has committed or is suspected of committing so far.  When you’re done shaking in your boots, read what Presidents Ford and Clinton concluded as to this question.

Presidents Ford and Clinton explain:

Two people who ought to know about impeachment are Presidents Gerald Ford and Bill Clinton.  Both lawyers stated their thinking on the subject long before they each became personally embroiled in the subject.

President Ford:

Then House Minority Leader Gerald Ford said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” (https://www.senate.gov/artandhistory/history/common/briefing/Senate_Impeachment_Role.htm)

 

                        President Clinton:

In 1974, then University of Arkansas Constitutional Law Professor Bill Clinton said, “I think [that what constitutes] an impeachable offense would be willful, reckless behavior in office; just totally incompetent conduct of the office and the disregard of the necessities that the office demands.”

(http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/impeach091898.htm; https://www.arkansas.com/things-to-do/arts/clinton-library/clinton-sites.aspx)

            Conclusion:

The Framers didn’t want us to get bogged down in the search for a particular statutory violation in finding a president impeachable for “‘other’ High Crimes and Misdemeanors.”  Rather, the Framers wanted us to sparingly use the power of impeachment for actions that (a) endanger our very system of government, and for (b) abuses of Presidential powers.