One Easy-to-Draw Line on Impeachment: Inauguration Day

(Bloomberg Opinion) -- Soon the House of Representatives will have to decide what, if any, alleged misconduct by President Donald Trump should go into formal articles of impeachment.

Some of those decisions will be hard.

But here’s an easy one: Under the Constitution, the House should not consider any actions, however terrible, that Trump took before he became president. (There’s one exception; we’ll get to it in due course.)

This principle has bite. For example, it would exclude Trump’s alleged involvement in his lawyer’s hush-money payments to cover up sexual encounters with the porn star Stormy Daniels and the Playboy model Karen McDougal. It would also exclude misconduct by Trump’s businesses before 2017.

The reason for the principle is simple. Under the Constitution, a president can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” The impeachment provision was designed for egregious abuses of presidential authority. During the founding period, prominent figures gave specific examples of what they considered to be high crimes and misdemeanors: lying to the Senate to obtain its assent to a treaty, using the pardon power to shelter associates whose crimes the president counseled, receiving emoluments from foreign powers.

All these examples involved abuse or misuse of powers that the president has by virtue of being president. None of them involved misdeeds, or even crimes, that the president committed before he assumed office.

Drawing the line at Inauguration Day makes sense. The founding generation was concerned about the risk that the president would be a kind of monarch, capable of exercising tyrannical powers and betraying the principles for which the American Revolution had been fought.

If the nation chose a miscreant who had done terrible things before being elected, that would be worse than unfortunate. But that just wasn’t the problem that concerned the Constitution’s framers and ratifiers.

The single exception is spelled out in a rhetorical question posed at the Constitutional Convention in 1787 by George Mason of Virginia: “Shall the man who has practiced corruption & by that means procured his appoint in the first instance, be suffered to escape punishment, by repeating his guilt?”

Mason was referring to something specific: efforts to bribe members of the Electoral College, and thus to distort the process of presidential selection. But we should read his concern more broadly. It captures any candidate’s effort to procure his office through corrupt means.

That is why it is plausible for the House to focus not only on Trump’s July 25 conversation with Ukrainian president Volodymyr Zelenskiy about U.S. military aid and an investigation the White House wanted against former Vice President Joe Biden, but also on possible connections between Trump’s 2016 campaign and the Russian government (though the report on those events by Justice Department Special Counsel Robert Mueller, finding no criminal conspiracy, offers a significant cautionary note there).

At this point, you might want to say, “Aha!” You might argue that to the extent that Trump was involved in the payment of hush money to avoid political damage caused by news of his dalliances, he was seeking to avoid a problem for his presidential campaign. For that reason, his conduct might be taken to trigger Mason’s concern.

That’s not exactly crazy, but it’s a big stretch. Bribing members of the Electoral College strikes at the heart of the democratic system. Paying hush money to cover up sexual activity does not fall into the same category.

In the coming weeks, House members will have a lot of choices to make. Democratic leaders reportedly want to limit the focus to Trump’s interactions with Ukraine’s president. Others might prefer to broaden the viewscreen to include possible obstruction of justice in connection with Mueller’s investigation of Russian election interference. Still others might want to explore whether payments by foreign officials for the use of Trump hotels and restaurants violates the Emoluments Clause. They might seek to focus on alleged efforts to direct the attorney general to target political opponents. They might hope to investigate presidential lying, on Twitter or elsewhere.

Whether any of these matters form a legitimate basis for an article of impeachment remains to be decided. But with George Mason’s qualification, this organizing principle will simplify the House’s task: Don’t even think about conduct that took place before the clock struck noon on Jan. 20, 2017.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2019 Bloomberg L.P.

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