What are “high crimes and misdemeanors,” the constitutional grounds for impeachment? According to President Trump’s lawyers, they must be, at the very least, actions that could be charged as serious crimes.
The central charge by House Democrats — that Trump abused his powers by withholding military aid to coerce Ukraine into investigating a potential Democratic opponent, Joe Biden — “alleges no crimes at all, let alone ‘high crimes and misdemeanors,’ as required by the Constitution,” the president’s legal team stated in its initial filing to the Senate.
“House Democrats’ newly invented ‘abuse of power’ theory collapses at the threshold because it fails to allege any violation of law whatsoever,” the lawyers said in a later filing.
Or, as former Harvard law Professor Alan Dershowitz, a member of the president’s defense team, put it during a CNN debate last month, “Every controversial president has been accused by his political opponents of abuse of power.” Expect the team to be pushing these concepts when Trump’s impeachment trial resumes in the Senate Monday.
Dershowitz’s contention is hard to dispute. Foes accused Abraham Lincoln of abusing his authority in 1863 by issuing the Emancipation Proclamation, declaring an end to slavery in rebel states, without seeking congressional approval. The courts rebuked Lincoln for ordering suspension of habeas corpus in 1861, thus allowing rebels and their supporters to be arrested and tried in military courts.
And Barack Obama’s executive order in 2012 that granted a reprieve from deportation to undocumented immigrants who entered the United States before age 16 was denounced by his opponents as an abuse of power, challenged in court and possibly overturned by a new executive order issued by Trump that is now before the Supreme Court.
The missing ingredient in those examples is any allegation that the president defied the rule of law for his own benefit. Exhibit A is Richard Nixon, who interfered with an FBI investigation of the Watergate break-in, authorized payoffs and wiretaps, and sent his “plumbers” to burglarize the office of a former psychiatrist of Vietnam War whistle-blower Daniel Ellsberg — grounds for an article of impeachment charging Nixon with abuse of power.
Dershowitz doesn’t go quite as far as Trump’s other lawyers. He says an impeachable offense might include conduct that wasn’t criminal, but “it has to be criminal-like and akin to treason and bribery,” the grounds stated in the Constitution. But that isn’t a widely shared viewpoint in the legal community.
“Abuse of power by a president counts as an instance of impeachable high crimes and misdemeanors under the Constitution,” 17 prominent law professors said in an open letter to the Senate last Monday. They included Charles Fried of Harvard, who was U.S. solicitor general under President Ronald Reagan, as well as Walter Dellinger of Duke University, who held the same position under President Bill Clinton; UC Berkeley Law School Dean Erwin Chemerinsky; and Harvard Professor Laurence Tribe.
“There is a very broad consensus that serious abuse of power is grounds for impeachment and removal from office,” said David Sklansky, a Stanford criminal law professor and former federal prosecutor.
It’s not a unanimous view.
Josh Blackman, who teaches constitutional law at South Texas College of Law in Houston, said in a column for the New York Times that Trump’s attempt to use Ukraine to improve his re-election prospects was unwise but not impeachable.
“Receiving a ‘personal political benefit’ does not transform an otherwise legal action — requesting an investigation — into impeachable conduct,” said Blackman, who did not mention Trump’s withholding of military aid. “Presidents who take such actions with an eye toward the ballot box should be judged by the voters at the ballot box.”
But Jason Whitehead, a political science professor at Cal State Long Beach, said the drafters of the Constitution designed impeachment as “a political check and balance against the president” for conduct that is “a violation of the public trust.”
And on the Senate floor Thursday, House Judiciary Committee Chairman Jerry Nadler, D-N.Y., cited a memo that William Barr, now Trump’s attorney general, wrote to the Justice Department as a private lawyer in June 2018, supporting the department’s position that a sitting president cannot be charged with a crime.
“The fact that the president is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the president is not the judge in his own cause,” Barr wrote.
Advocates of a broad view of impeachment also make historical arguments. Robert Weisberg, a criminal law professor at Stanford, said extortion and bribery, crimes “very much in the nature” of Trump’s alleged dealings with Ukraine’s president, were not defined as federal crimes until well into the 19th century, but were clearly impeachable much earlier.
Others point to a British case that took place during the drafting of the Constitution. Warren Hastings, a British official in India, was accused of mismanagement and other misconduct and was impeached by Parliament, although he was not accused of a crime. When he went to trial in 1788, his prosecutor, Edmund Burke, said Hastings was one who “by the abuse of power (has) violated the spirit of law” and must be held accountable.
Hastings was later acquitted. But John Mikhail, a Georgetown University law professor, said in a series of Twitter postings that his case was “a major reason” the constitutional grounds for impeachment, initially drafted to include only treason and bribery, were expanded to encompass “other high crimes and misdemeanors.”
Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@sfchronicle.com Twitter:@BobEgelko
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January 27, 2020 at 07:00PM
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