From left: Noah Feldman, professor of law at Harvard University Law School, Pamela Karlan, co-director of the Supreme Court Litigation Clinic at Stanford University Law School, Michael Gerhardt, professor of law at University of North Carolina School of Law, and Jonathan Turley, professor of law at George Washington University Law School, testify before the House Judiciary Committee hearing on the impeachment inquiry into President Donald Trump, December 4, 2019. (Mike Segar/Reuters)We know an impeachable offense when we see one — or do we?
To put it mildly, the 1960s were not notorious for juridical modesty. They might compare favorably, though, to Wednesday’s episode of “The Lawyer Left Does Impeachment” at the House Judiciary Committee. Oh, I have no doubt that the three progressive constitutional scholars spotlighted by Democrats yearn in their hearts (and their classrooms) for the Warren Court, that apex of make-it-up-as-you-go-along lawyering. But even those jurists had the occasional convulsion of modesty.
The most instructive one for present purposes belonged to Justice Potter Stewart. The question before the High Court in the 1964 case of Jacobellis v. Ohio was how to define hard-core pornography for purposes of setting the elusive boundary where protected free expression transmogrifies into criminal obscenity. Assessing the terrain, Justice Stewart confessed that he could not “intelligibly” provide a workable definition … “but I know it when I see it.”
Impeachment has an eye-test, too.
You would never know that from listening to the law profs. Not that it matters much: The most memorable moment in the hearing turned out to be the mind-bogglingly moronic decision by Stanford’s Pamela Karlan to use 13-year-old Barron Trump in one of her many snarky jabs at the president. This, naturally, ignited an explosion of indignation from the pro-Trump right, whose sensibilities did not seem quite so tender when the president was tweeting about 16-year-old Greta Thunberg. That, just as naturally, inspired an even more embarrassing performance by Professor Karlan: So advanced is her Trump derangement that she is incapable of apologizing for her own poor judgment without taking another snide shot at the Bad Orange Man, lest we forget how morally superior she is.
Suffice it to say, it was a good day for the president.
Yes, yes, he’s going to be impeached over the Ukraine misadventure, but only on the strength of a vague “abuse of power” standard articulated by three left-wing academics: Karlan, along with two others who competed with her for Most Over the Top honors — Harvard’s Noah Feldman, who started calling for Trump’s impeachment about five minutes after the president’s term began, and the University of North Carolina’s Michael Gerhardt, who looks at Trump’s dealing with Ukraine and finds it “worse than the misconduct of any prior president.” Truly.
Even if you were already convinced that impeachment is a political stunt, you may not have been psychologically prepared for eight hours of the “living Constitution” crowd doing their best Justice Scalia impressions in explaining what James Madison would have made of Donald Trump. (I couldn’t help but wonder what James Madison would have made of giving $391 million to Ukraine!) But don’t think there’s not a method to the madness.
Before Trump began his term, before he even had a chance to commit any impeachable offenses, Democrats, such as Professor Feldman, had made up their minds that he had to be impeached. Indeed, by January 20, 2017, the Obama administration had already obtained its second surveillance warrant from the FISA court on the claim that there was probable cause to believe the Trump campaign conspired with Russia to steal the election.
“Collusion” turned into a two-year dry hole. Democrats were not going to let that happen with Ukraine, which would be the Indy 500 of impeachments. But the problem has always been the “crime”: No one can settle on what to call it. Campaign finance? Extortion? Some kind of a corrupt quid pro quo (hoping no one notices the inconvenience that Trump didn’t get the quo while Ukraine is counting its 391 million quid)?
In Adam Schiff’s Intelligence Committee “grand jury” phase, Democrats seemed to settle on bribery. Yet, while the term “bribery” poll-tested better than “quid pro quo,” establishing it as an impeachable offense comes with the same challenge: In the end, nothing terrible actually happened — in the annals of high crimes and misdemeanors, Ukraine is Seinfeld.
Enter the law profs.
While the annals of impeachment are rather barren (can I still say “barren”?), we do know that the usual process is for the House, after a searching investigation, first to write articles of impeachment, then to have a panel of furrow-browed academics assess them against the relevant constitutional clauses. On Ukraine, however, the articles aren’t written yet.
In part, that is to maintain the fiction that Democrats are being driven by a deliberate inspection of the evidence rather than a rabid commitment to brand Trump with the big “I.” In terms of strategy, though, Democrats are relying on the law profs to write their indictment. That is, the experts bloviate on the ancient understanding of an impeachable offense as a nebulous “abuse of power” somehow connected to self-dealing, election integrity, foreign intrigue, and national security. Then Democrats will write articles of impeachment that track this testimony, contending that the existence of high crimes and misdemeanors is self-evident — after all, the Con-Law oracles have spoken.
Not all of them, though.
Easily the most credible witness at the hearing was George Washington’s Jonathan Turley. A Madison scholar who, politically speaking, has no use for the president, Professor Turley even acknowledges that Democrats might have a strong case, at least on the issue of quid pro quo, if they do the work to assemble it — such as getting testimony from patently relevant witnesses. Instead, he complained, they are rushing to judgment (or, if I may say, rushing the proceedings to catch up to the judgment that has already been rendered).
Haste, however, is not the half of it. Turley’s principal concern, quite appropriately, is vagueness.
“Abuse of power” is not a workable standard for impeachment. The concept the Framers were driving at (as I discussed in Faithless Execution) was maladministration. Yet the delegates at the Philadelphia convention opted against making maladministration the standard, for fear that it would capture trivial misconduct that did not rise to the egregious level needed to justify removing a duly elected president. An amorphous standard — and “abuse of power” may be worse than “maladministration” — would invite the evils the Framers were trying to prevent: too much congressional power over the chief executive; impeachments driven by factional rivalry (today, it’s partisanship) rather than objectively disqualifying behavior.
To impeach Donald Trump on the Ukraine episode, Turley elaborated, would be to render every future president vulnerable to impeachment inquiries, with metastasizing divisiveness and dysfunction as the price paid by the public and the government.
He’s right, of course. Nevertheless, you can’t fix the problem with an abstract legal definition of an impeachable offense. With all the ostentatious reverence on display for Madison on Wednesday, mightn’t we have the humility to agree that we are not smarter than he and the other Framers were? No matter how clever a lawyer you may be, you keep circling back to the same problem they faced: Maladministration is what you’re trying to target, but if you call it “maladministration,” you are going to sweep in low-grade misconduct, making every president impeachable; so you go with “high crimes and misdemeanors,” which sounds more grave, but when asked to define it, you keep coming back to maladministration.
It’s the same kind of problem the Supreme Court wrestled with in the aforementioned 1964 obscenity case. It sounds like a legal problem, but it was shot through with culture and politics, too. The courts felt compelled to account for community standards in defining pornography because what was criminally obscene in Talladega was not necessarily obscene in Times Square. It was easy to spot something egregious using common sense; it was much harder to fashion a definition that fit all displays at all times in every place. When Justice Stewart threw up his hands, he wasn’t saying there was no criminal obscenity; he was saying people could be trusted to recognize it when the real thing reared its head.
The wisdom of the Framers on this score is that they didn’t allow themselves to be trapped into semantic games. Impeachment over executive excess is not a labeling problem or a legal problem; it is essentially a political problem. The question is not whether we can come up with a one-size-fits-all definition for the infinite variety of misbehavior. It is whether we have a procedure for dealing with grave misconduct when we see it.
And so we do. It takes a two-thirds’ vote of the Senate to remove a president. This is meant to have (and historically has had) a sobering effect on the House: There’s no point submitting articles of impeachment if there’s no chance for a Senate conviction. The misconduct has to be so severe that a public consensus for the president’s ouster creates the political pressure that moves a supermajority to strip the president of power.
That is very serious misconduct indeed. I won’t yet again go into why Ukraine does not make the cut. Instead, I leave you with a thought experiment.
The nation has been watching this drama over two months. How many people do you know who say, “You know, I was on the fence about Trump until I found out about this Ukraine thing. Now I’m convinced: He has to be impeached”? I’m betting few, if any, Americans think that way.
If you believe the president should be ousted because of Ukraine, you probably thought he should be ousted before we heard about Ukraine — you may now feel more confirmed in that conviction, but you were pretty confirmed already. On the other hand, if you’re convinced that Trump is Trump, for good and ill; that Democrats have never come to terms with the election of a tempestuous, norm-resistant president who is unpredictable but leans right (or at least Republican) on major policy matters; and that Ukraine is just the latest case of Trump being the Trump we knew he was when the public elected him, you probably didn’t want him impeached before and don’t want him impeached now.
In other words, Ukraine hasn’t changed anyone’s mind. If we know an impeachable offense when we see it, then this is not that.
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