Trump and the Constitution's 'Misdemeanors'

(Bloomberg View) -- As soon as Donald Trump was elected, some of his critics argued that he should be impeached. Those arguments were reckless and irresponsible, and an insult to the many millions of Americans who voted for him. Impeachment is a singularly grave act -- a remedy of last resort. Those who think that they favor impeaching any president should ask themselves this question: If I strongly supported his policies, would I still think that there were sufficient grounds for impeachment?

If that is the right question, then talk of the possibility of impeachment is beginning to look less reckless, and less irresponsible, than it did a few months ago.

To be sure, legitimate grounds for impeachment have yet to be established. But the dismissal of FBI Director James Comey, possibly because of his investigation into alleged connections between Russia and the Trump campaign, alongside the apparent leaking of classified information to Russian officials, makes it appropriate to inquire into the legal standard -- and to probe some of our majestic Constitution’s unresolved mysteries.

The founding document says that the president can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” The first two words are not obscure. But what are “high Crimes”? And what are “Misdemeanors”?

The Constitutional Convention provides some answers. At a late stage in the Constitution’s drafting, treason and bribery were the exclusive grounds for impeachment. George Mason offered a strong objection, arguing that the president should be impeachable if he engaged in “many great and dangerous offenses” that did not count as treason or bribery. To include those offenses, he moved to add the words “or maladministration” after bribery.

After the motion was seconded, James Madison responded that that term was so vague that it would mean, in practice, that the president would serve at the pleasure of the Senate. Mason himself agreed. He withdrew his motion and substituted the words “high Crimes and Misdemeanors.” Apparently he believed that the new words would cover “many great and dangerous offenses” -- and thus have the requisite latitude.

For us, then, a central question is how to understand “high Crimes and Misdemeanors” in a disciplined way, so that they do not mean “maladministration.” It is tempting to say, as many people do, that the Constitution authorizes impeachment only when the president has committed a horrible crime -- a violation of the law of the same magnitude as treason or bribery.

But it can’t be right to say that impeachment is available only in cases of crimes. Suppose the president flies to Moscow and proclaims that he will spend 2018 there, studying the works of Lenin and Marx, and doing presidential business only when he can find the time. Or suppose he announces, in advance, that he will pardon anyone who kills a political opponent or a member of the press. Or suppose he reports that Martians have started to communicate with him, and that he has vowed to follow their guidance.

In all of these cases, impeachment would be legitimate. The president may have committed no crime -- but he has committed a “misdemeanor,” understood as an exceedingly bad act.

The early history supports this conclusion. Madison himself referred to ”negligence or perfidy of the Chief Magistrate” as grounds for impeachment, and others, including Alexander Hamilton, invoked the idea of betrayal or abuse of “public trust.” From their words, it is also clear that the word “high” was meant to modify “misdemeanor” as well as “crimes.” It follows that the Constitution allows impeachment for actions, not necessarily violative of the criminal law, but constituting “great and dangerous offenses” against the public.

In this light, “maladministration,” in all its forms, is not close to an impeachable offense. A president might order executive actions that courts strike down -- but he is hardly impeachable for that reason. A president might mislead the public or even lie to it; that’s not necessarily impeachable. Our system does not authorize votes of no confidence, even in the event of terrible appointments or disastrous policy choices (or undignified, hateful tweets).

Recent events suggest that for President Trump, the eventual question may well be whether any of his conduct to date, or any of his conduct in the future, rises to the level of “misdemeanors." For a president, firing subordinates is perfectly legitimate -- but not if the reason is that they are undertaking a lawful investigation of his own campaign’s relationship with a foreign nation. The president has the legal right to declassify the most highly sensitive information. But it would be a grave matter if he negligently disclosed such information to an unfriendly nation, in such a way as to compromise our nation’s intelligence-gathering capacities.

Nothing I have said here is meant to represent a judgment on the facts, which remain disputed and unclear. The president and his supporters are right to complain that since the election, many of his critics have been circulating baseless rumors, and refusing to give him a fair chance or the benefit of the doubt.

But in view of the chaotic events of the last few weeks, and the president’s unpredictable and apparently erratic behavior, it is not too soon for Americans to begin to ask, in a calm, principled and nonpartisan way, about the legal standards for removing him from office.

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

Cass R. Sunstein is a Bloomberg View columnist. He is the author of “#Republic: Divided Democracy in the Age of Social Media” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

To contact the author of this story: Cass R Sunstein at csunstein1@bloomberg.net.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net.

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