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Harvard Law Prof Says Trump Is a Lot More Impeachable Than We Think

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Since November 9, 2016, I’ve heard no single question more than, “so can we impeach Trump yet?” Impeachment is a tricky business, not in small part because there’s so little precedent from which to draw. But as Trump himself becomes increasingly comfortable in the Oval Office, so to do Americans become more comfortable with the language, purpose, and mechanics of impeachment. This week, in Trumpcast, a podcast hosted by Slate boss Jacob Weisberg, Harvard Law Professor Noah Feldman offered a take on impeachment that is music to the ears of Trump-haters, and from where I’m sitting, it sounds pretty appealing.

Professor Feldman began with an important point – one that isn’t made very often: there are two kinds of impeachment. One kind is that which is expected to end in a conviction and removal from office. The other is an impeachment made just to cause trouble – or in Feldman’s words, to “humiliate and constrain the president.” Remember, impeachment is like an indictment. It’s a formal complaint of wrongdoing voted upon by the House of Representatives.   A conviction, if secured, happens after a trial before the Senate. Professor Feldman drew examples of Richard Nixon, who was impeached for the purpose of removal, and Bill Clinton, who was impeached without such an expectation. In other words, even if Trump won’t likely be convicted, it may well pay to bring Articles of Impeachment as a public show of criticism. Sounds good to me. I mean conviction would be better, but I’ll take a little humiliation and constraint as a consolation prize.

More exciting still was Feldman’s take on the whole “high crimes and misdemeanors” thing. Feldman, a legal historian of serious stripes, explained that the phrase was a British expression. The “high” is meant to modify both the word “crimes” and the word “misdemeanors,” and does not, as is often assumed, relate to the seriousness of an offense – but rather to the nature of the offense. “High” meant “governmental” or “official,” as opposed to “personal” or ‘private.” “Crimes and misdemeanors” according to Feldman, also doesn’t mean what we think it means. For starters, they aren’t two different things. The modern definition of “misdemeanor” may imply wrongdoing of minimal seriousness, but no such distinction existed at the time of the Constitutional Convention. Why use two words when one would have sufficed? Feldman’s take is that the framers were simply “trying to sound fancy.” But the crux of Feldman’s argument was that the very concept of “crimes and misdemeanors” does not mean violation of actual criminal statutes. Instead, this phrase relates to any action “performed in an official capacity by a government official that violates the basic principles of government.”

For anyone counting the moments until we move on to President 46, this is good news. Many would agree that Trump has already performed a litany of actions that violate the basic principles of government. From his many conflicts of interest to his war on the press, from his excessive nepotism to his denouncement of federal judges, Trump’s presidency has been a daily raising of the bar when it comes to violating the “basic principles of government.” Hell, if we’re talking about “basic principles of government,” we could probably make a case that his ridiculous tweetstorms alone are grounds for impeachment.

I’ll admit, though. It sounds a little too easy. I’ve written before about how not everything we dislike about elected officials is grounds on which to impeach them. But I’m at least partially persuaded by Feldman’s take on the primary purpose of impeachment. It requires a little shift in thinking, but one for which I think he made a compelling case. Most Americans think of impeachment as some sort of super-prosecution, playing out against a powerful individual in a special courtroom where the judge and jury are Senators. And to a degree, that’s true. But there’s a major difference between impeachment and prosecution – the purpose of the proceeding. A prosecution is, by nature, punitive. By contrast, an impeachment, at least according to Feldman, is a special way for Congress to express its belief about how a president is meant to govern. Congress has the tool of impeachment to speak on wrongdoing precisely when there is no other tool at its disposal to regulate that behavior.

Professor Feldman did not pull that belief from thin air, either. He extensively researched James Madison’s involvement in the controversy surrounding the drafting of impeachment language. Apparently, the convention first used the word “maladministration” (18th century for “just doing a general crappy job”) to describe the grounds for impeachment. Madison called that out for being too vague and setting every president up for impeachment. So the group agreed on “high crimes and misdemeanors.” Broad enough to mean something, but specific enough not to mean everything. Makes sense to me.

Trump’s systematic attack on the press was advanced by Feldman as perhaps the quintessential example for the kind of wrongdoing impeachment was meant to target. For starters, the press and its role in guaranteeing a functional democracy was included in the Constitution. If the purpose of impeachment is to safeguard good government, regulating a president’s attack on the free press fits squarely within that framework. Feldman argued that impeachment is not only appropriate for such regulation, but is necessary, because “there might be no other mechanism” to curtail a president’s anti-democratic actions.

The idea of impeachment as a sort of Congressional performance review is one that is bound to ruffle a few feathers. Still, the idea that a president should be accountable for how he or she governs, in a way that’s far more direct than approval ratings and re-election campaigns is exactly what we need right now.  Whether Congress will study enough history to effectively exercise the power Professor Feldman believes it already has remains to be seen.

This is an opinion piece. The views expressed in this article are those of just the author.

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