High Crimes With Impunity
Air Date: September 9, 2019
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. Frank Bowman III is professor of law at the University of Missouri and visiting professor at Georgetown Law, a constitutional scholar, his new book is “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.” And it’s a Cambridge University Press title. I wanted to get right to it. We’re recording in the heat of summer. Impeachment is at a lull, but we have a lot to discuss.
BOWMAN: We do.
HEFFNER: The origin of impeachment according to the founders was a legal or political process?
BOWMAN: In order to understand impeachment as we have it in American today, you have to go all the way back to the history of impeachment, which was invented by the British in the 14th century as a tool of parliament against overreaching, autocratic power of the crown. And in that sense it has always been political in the large sense. And I think that remains true today even though it is a political process with aspects of legality to it. It has sort of the, the pattern of legality to it. But it is, it is fundamentally political because it’s about constitutional balance. That’s how the parliament conceived that that’s certainly how the framers conceived of it. It’s about again, how to balance the legislative and executive centers of power. And it is a power of last resort for the legislature when they’re confronted with a overreaching an overreaching executive or in the case of the British a king. So in that sense it is fundamentally political,
HEFFNER: But it can be, and a way to understand it today is a political process or tool to enforce the law.
BOWMAN: The standard that the framers chose for deciding when particular conduct was impeachable was of course treason, bribery or other high crimes and misdemeanors. And the thing to understand about the latter part of that phrase, high crimes and misdemeanors is that it does not describe or certainly it is not limited to describing violations of the law. You’re right, it’s about enforcing the law in some large sense in the sense of preserving the constitutional order. But it’s not about simply determining whether or not a president or a judge or in some cases a lesser Executive Branch official just violated some statute. It’s plainly not about that.
HEFFNER: It’s a broader applicability than the law. And that’s what you’re asserting here now in considering the case for impeachment against President Trump, there are historical precedents, most obviously Bill Clinton, the potential impeachment of Richard Nixon and the impeachment but non-conviction of Andrew Johnson,
BOWMAN: My view on Johnson is that there were certainly adequate grounds to impeach him. But those related largely to the fundamental conflict between Johnson’s view of what the country should be after the civil war and what the Republican majority of Congress’s view of what the country should be after the civil war, most notably with respect to how to treat the defeated south and the elites that controlled the defeated south up until Appomattox and also how to treat the freed men who were emancipated by the end of the war. There was a fundamental constitutional disagreement between the Executive and Congress. And in my view, and I argue this in the book, there are times in history when if there is a fundamental and irreconcilable disagreement about the nature of the country’s constitutional future, about which way it should go, some really important fork in the road, in the end, impeachment is a means by which the legislature can enforce its view of the constitutional future.
In that particular case, in the Johnson case, the legislature chose not to take that fork to some extent. They impeached Johnson on a very narrow ground, his violation of the Tenure of Office Act and his firing of Stan, the Secretary of War. My sense is that, I think the broader range of impeachable offenses in the Johnson case would have been more constitutionally appropriate, but it’s an ultimately a political process because it’s not about proving facts so much as getting the Congress to agree that it is constitutionally appropriate to remove the Chief Executive. It’s not clear that they would have been more successful had they had they couched their articles of impeachment more broadly.
HEFFNER: Isn’t the first case of an attempted impeachment, the Chase Affair, a Supreme Court justice indicative of the inseparability of politics and law in how you proceed with a case for impeachment
BOWMAN: Justice Chase was justice of the United States Supreme Court, one of the first …
HEFFNER: Appointed by George Washington.
BOWMAN: And he was an ardent federalist, which is to say he was in the emerging political group that was opposed to Thomas Jefferson. When Jefferson came into office, it is said at least that he and the anti-federalists who later became known as Democrats, their object, well first of all to back up, right before he was inaugurated John Adams filled a whole bunch of positions in the federal government, including some judgeships with federalists. And Jefferson was not surprisingly somewhat upset about that because essentially his administration and the judiciary had been loaded with – up with his opponents. So he wanted to find ways to get rid of some of them, including some of the judges. It is said though, I don’t know if there’s any necessary absolute proof of this, that the effort to impeach Chase was part of that general effort to get rid of federalist judges and other officials.
On the other hand Chase had behaved rather badly. When he, in the course of performing a number of his duties around the country, which in those days included riding circuit, that is to say Supreme Court justices would actually sometimes act as trial judges and they would sometimes charge grand juries and so forth. He didn’t gauge in best kind of intemperate behavior at the trials of a couple of trials. He had given a charge or a speech to a grand jury that was overtly political. So as a result of Jefferson’s antipathy and as a result of Chase’s frankly intemperate behavior, congress impeached him. And he survived in the end that the congress decided not to impeach him, or not to convict him; rather the Senate didn’t convict him. And I think you can draw a couple of lessons from that.
I mean, one of the lessons is that from the point of view of the judiciary, hence forward, Congress never again tried to impeach a judge just for being a little intemperate, just for being…
HEFFNER: Too hard..
BOWMAN: On the other hand it’s also true that the federal judiciary got the message and that from pretty much that day forward, the federal judiciary backed off and recognized, okay, we must maintain at least the appearance of neutrality. We must be objective. And if we do anything other than that, we’re endangering our own jobs but also the legitimacy of the judiciary. I cite the Chase impeachment sometimes as an example of unsuccessful impeachments, that is to say impeachments that don’t remove, that result in the removal of the office holder, that are in fact successful in a certain sense. And I think Chase was successful in both ways. It fired a warning shot to the judges. It established, on the other hand, a certain sense of inviolability of the judges against sort of trivial political attacks. But it set some norms down about the way the judiciary was going to conduct itself for the rest of the time in a sense. And so in that sense, it accomplished some things, even though Chase remained an office.
HEFFNER: And it is disputable whether or not civil servants in the definition of who is eligible for this punishment, includes judges. I mean, it’s, it’s not… clear-cut?
BOWMAN: No, I don’t think that’s right at all. I think it’s quite plain that the, the…
HEFFNER: Judges are fair game.
BOWMAN: Oh, I think that’s unquestionably true. There was discussion of that at the constitutional convention. I mean there’s some arguments about whether or not the standard for removal of judges is different than for others because they’re, they have they have life tenure and they are under the constitution allowed to remain an office during good behavior. There’s, there have been arguments that that good behavior requirement allows them to be impeached for things that aren’t at least the same kinds of high crimes and misdemeanors that you would impeach a president or an executive branch official for. I think where it’s sort of come down in the end is now when we impeach a judge, we impeach him for high crimes and misdemeanors. But there’s again, this understanding that for judges, the standards may be what that means is a little different than is true in the executive branch.
HEFFNER: I don’t think that the Johnson impeachment is irrelevant to today. In fact, a lot of people have drawn analogies in terms of the racial significance of what impeachment against a bigoted president means. There is the argument that when President Trump says the press is enemy of the people or when he defies subpoenas that he has undertaken, he has engaged in impeachable activity both morally and legally. Morally in bigoted or racist statements that are antithetical to our values, legally in activities contradict what ought to be our law. You cited the disconnect in the Johnson affair between the radical Republicans who had a vision of what emancipation ought to look like and the moderates and the Democrats. Today the speaker has alienated a group of outspoken congressional office holders who do see in President Trump’s racist statements, a catalyst, what they observe as what ought to be a catalyst for beginning an impeachment inquiry. So I wanted you to historically frame for us what the catalysts have been in moving the momentum, the bar towards impeachment. Because you could identify tweets, you could identify Helsinki, you could identify Charlottesville as those events that morally, ethically, if not legally, ought to be a catalyst for what we consider high crimes and misdemeanors.
BOWMAN: Well, I mean, I guess what I would say with respect to he current president is I think it’s, on the one hand, I think it’s dangerous constitutionally to think about impeaching presidents for intemperate or even racially inflammatory remarks. That’s I think a tricky road to go down. I think social values change over time and that would be something I would be loath to suggest as a proper ground for impeachment. On the other eye. And then I think, in any case, I mean that the distinction between Mr. Trump and, and Johnson, I think is, is notable. I mean, Johnson was overtly in favor of essentially returning the black freed men of the post civil war era to a position of effectively being slaves, at center of de-facto and dujour peonage. That’s, I think a somewhat different question than Trump’s repulsive language, but as revolting as it is and badly as it reflects on him as a man.
But I certainly think there are a number of points on which impeachment could at least be considered against Mr. Trump. I mean, the principle one is that we know of now and it’s really uncontested I think it was the second volume of the Mueller Report, which I think perfectly plainly establishes that he engaged in obstruction of justice, not only in the technical criminal legal sense but also in the broader constitutional sense, almost exactly analogous and in many ways analogous in particulars to the second article of impeachment passed by the Judiciary Committee against President Nixon. Also, you know, with respect to his interactions with the justice system, there’s also an obstruction or erosion of the justice system more broadly. He has engaged in a whole variety of behavior of usury in the Justice Department, which I think is extraordinarily deleterious to the rule of law.
But that’s just ground number one. The second ground, which I didn’t really discuss in the book because it hadn’t become as clear when I finished writing in the early part of this year is as I think is probably clear to most of your viewers, but maybe not as much as it might be. In this administration, and certainly in the last six months to a year, the Trump Administration has essentially stopped cooperating at all with congressional inquiries, not just in matters that relate to the president personally or potential misconduct by himself or his family but essentially the Trump Administration has essentially stopped providing meaningful responses to Congress across almost the entire array of legitimate inquiries that they have in the, as part of their legislative and Oversight Authority. And if you talk to people on the Hill, this is what you find. There’s, they’re either the administration’s either not responding to, we’re slow walking absolutely everything.
If that is allowed to persist, essentially what we have is an Executive branch, which is telling the congress, look, you have no authority over us. We’re not going to give you the information that are necessary to perform your Article One function. Now that’s a constitutional challenge to the tripartite arrangement, tripartite arrangement of our government. That is impeachable conduct if persisted in, because it really strikes at the whole constitutional order. And I’m far more concerned about that than his repulsive, his repulsive language, because that really endangers the constitutional republic. And there are other things that I could go into that I think at least represent areas that would, should be inquired into. But those two certainly get us started.
HEFFNER: In a sense the Clinton impeachment was a combination of law and morality too. I mean, because you had perjury, the underlying perjury, but you had the infidelity. And that’s what I really am getting at in terms of learning the lesson from both the Johnson and Nixon era, which is the Johnson era: don’t be so technocratic in defining what is impeachable, not that defiance of subpoenas should be viewed as technocratic by lawyers like yourself or the nation at large. With respect to Nixon, the threat of impeachment and the certainty at a certain point, the certainty of conviction, meant that he had undertaken a whole variety of corruption and malfeasance. It was not just the break-in; it was drip, drip, drip, a series of malicious and unlawful activities. If you wanted to improve impeachments prospects, you would expand the breadth of the wrongdoing morally and legally and say that the racism and the Mueller report findings are one and the same: an un-American attitude and activity.
BOWMAN: I think it is a huge mistake to start talking about impeaching presidents for un-American attitudes. It’s far too easy to start.
HEFFNER: Well, let me go on that, but, okay so if you don’t want to say an American, what about, what about treasonous? What about collusion with the Russians?
BOWMAN: Well, first of all, the word treason has a very narrow meaning and it’s the only crime that’s actually defined in the constitution. It refers only to giving aid and comfort to the enemy essentially in a time of war. The framers defined treason extraordinarily narrowly, precisely because British parliament and for that matter, the crown had used charges of treason against their political opponents for centuries. And the framers made quite sure that they, they did not want loose definitions of treason being thrown around to try to bring down the political opponents of either the administration or Congress, whoever it might be. So it is perfectly plain that whatever else Mr. Trump may have done, he hasn’t committed treason because we’re not in the midst of armed conflict. He hasn’t given aid and comfort to the enemy. Now, one may conclude based on whatever evidence wants, one wants to look at, that he is on Warren to believe favorable to the Russians for reasons which are not yet entirely clear and that under certain circumstances might constitute an impeachable offense, but it ain’t treason under the constitution of the United States.
HEFFNER: There are living constitutionalists who would say in response to your assertion, which I grant is emphatic, as you say, may have a lot of validity to it that cyber war is war, you know, and the refusal of the mainstream media to acknowledge the hacking of the DNC as analogous to what occurred during Watergate was totally regrettable. But it was also plainly wrong to not view it as a kind of modern day war.
BOWMAN: However much one may and deplore is a mild word, the behavior of the Russians vis-à-vis the 2016 election and however much one may deplore the behavior of Mr. Trump and his campaign in at the least apparently being willing to accept the assistance in certain respects of foreign power. There is at this point absolutely no evidence and Mueller cites none. And there isn’t any that in advance of this behavior by the Russians, Trump knew about this behavior or aided and abetted in any way. I am not a big fan of the president as you may gather, but we have to be very cautious about, you know, how we couch our arguments against his behavior. It ain’t treason. He’s had been a terrible president in many, many ways. I think there are a number of grounds on which at least as, as an historical matter, as a constitutional matter, perfectly valid articles of impeachment could be framed against him, that people across the political spectrum at least ought to be able to support.
HEFFNER: But if you were to try to learn the lesson from Johnson and Nixon, which is that you have to cast a wide net in terms of defining impeachable activity, how would you do it beyond noncompliance with subpoena and Congressional Investigative Authority?
BOWMAN: Well, I, the central point that you’re making there I think is a very important one. And it’s something I’ve talked about at points on my blog and at other times. And that is if one were going to try to frame articles of impeachment against Mr. Trump, I think it would be a mistake, for example, to limit one’s focus to either Article or Chapter One or Chapter Two of the Mueller report. Because the real challenge that Mr. Trump presents is not any one thing. It is that across an array of behavior, the obstruction of justice, that basic undercutting of the judicial process by the attacks on judges and so forth and so on, and the hollowing out of the Justice Department from the inside. The defiance of congressional subpoenas, the, his, his essentially turning, he and his family essentially turning the presidency into what Madison called a “scheme of peculation.” That is to say a way of self-enrichment his, his disastrous foreign policy, vis-à-vis our traditional allies and his embrace of autocrats and dictators across the world. And one can go on and on and on. And if you look at the historical record of the kinds of things that the British parliament thought were impeachable the kinds of things that I think the framers thought should be impeachable and the kinds of things that in our own relatively limited history of impeachments, ‘cause there’ve only been 21 of them a little over 200 years. The kinds of things that we have found to be impeachable, there’s an array of behavior that he’s engaged in.
But the key is that if you’re going to go out, if you’re going to go down that road, you have to understand that it is a, that the thing that would make him impeachable is not one thing but his broad-based assault on the constitutional order as a whole, which means not just particular articles of the Constitution, not just particular statutes, like the obstruction of justice statutes, but one has to understand that the constitution, what we refer to as the constitution, the constitutional order itself does not just consist of the 4,400 words that were, you know, approved by the founders in 1787 and by the rest of the country in 1788 doesn’t consist of those 4,400 words, plus another 2000 or so of amendments doesn’t consist just of statutes or judicial opinions. It’s an entire structure of laws, of understandings of historical norms that together make up our constitutional order.
And what we have in front of us now in this president is that he is in essence the reason that the impeachment clauses were enacted in 1787. He’s the disaster for which impeachment was created. He’s a guy who threatens the entire order of our constitution. And only if you’re going to impeach him, you have to understand that and you have to figure out a way of framing an understandable way for the public, for Congress, why it is he represents such a fundamental threat to the American republic.
HEFFNER: Yet Nancy Pelosi doesn’t blink on this question of impeachment. She’s a no-go. Doesn’t this go back to my earlier point about a catalyst? You’re talking about the comprehensive case for impeachment legalistically. I’m saying in order to propel a movement towards impeachment, there have to be events or at least a single event that sparks the consciousness of the nation and the legislators to pressure Pelosi to act. I do think events like Charlottesville and Helsinki are of the magnitude where we recognize as a country this president has betrayed us.
BOWMAN: I’m not sure that there is such an event sadly, and I think that’s because we have changes in our, in the polarization of our political parties and changes in the media structure such that it’s not clear to me that no matter what happens, that one is going to be able to rally sufficient support to even commence an impeachment investigation. Still less…
HEFFNER: Pelosi’s in effect then just conceding we’re in a post impeachment era where given the polarization of politics, this is not a winnable battle, maybe if I get a Senate to be elected, the Democratic Senate and Trump is reelected, then it would be worth pursuing. Like you said, her argument is she wants to preserve her House majority and she doesn’t think impeachment will allow her to do that.
BOWMAN: I mean, I’ve argued that there are reasons to go ahead and pursue an impeachment investigation even if you know, as is the case here that you’re not going to secure a conviction in the senate. The primary reason to do that is to create a vehicle, create a stage for educating the American public about what this guy is doing and how fundamentally dangerous he is. Speaker Pelosi’s made the political calculation that A – maybe that just can’t be effective in the modern media era, and B – I think she’s made the calculation, but heaven knows I’m not a confidant. I think she’s made the calculation that in the current media environment, that political effect on Democrats is actually is likely to reelect him. Now, I’m not going to second-guess speaker Pelosi on his political calculation.
HEFFNER: No one is infallible. Thank you Frank for your time today.
BOWMAN: My pleasure.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit the open mind website at Thirteen.org/OpenMind to view this program online or to access other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.