Trump’s Impeachment Letter Gets Constitution Wildly Wrong
There is certainly nothing even remotely unconstitutional about the House’s decision to impeach Trump.
(Bloomberg Opinion) -- Impeachment seems to have struck a nerve in President Donald Trump. On the eve of the House’s impeachment vote, he sent a six-page public letter to Speaker Nancy Pelosi, replete with self-justification, recrimination, and accusation. I will leave the psychological profiling to others. My job is to address the constitutional arguments, such as they are, in the extraordinary document. They may or may not be made again on the floor of the Senate in the upcoming trial; regardless, Trump has now made them part of the historical record.
The constitutional talk starts right up top, in sentence two, in which Trump writes that “the impeachment represents an unprecedented and unconstitutional abuse of power by Democrat Lawmakers, unequaled in nearly two and a half centuries of American legislative history.”
White House counsel Pat Cipollone’s letter announcing that Trump would stonewall the impeachment inquiry claimed absurdly that the House was violating the Constitution by not passing a resolution authorizing the inquiry. No such requirement exists in the text or history of the Constitution.
In any event, there is certainly nothing even remotely unconstitutional about the House’s decision to impeach Trump. The Constitution assigns the House “sole power of impeachment.” It isn’t up to the president, or for that matter any other branch of government, to find that impeachment is unconstitutional. Every constitutional expert agrees that it’s well within the power of the House to investigate presidential conduct and vote on impeachment.
The very next sentence of the letter asserts that “The Articles of Impeachment introduced by the House Judiciary Committee are not recognizable under any standard of Constitutional theory, interpretation, or jurisprudence.”
This is flatly false. The articles state two immediately recognizable high crimes and misdemeanors: 1) abuse of power for personal advantage in the 2020 presidential election and 2) obstruction of Congress. The framers of the Constitution spoke directly about abuse of the office of the presidency for personal gain, and were obsessed with the possibility that the president would use corrupt means to get himself reelected. As for obstruction of Congress, the charge was also contained in the articles of impeachment against Richard Nixon that were adopted by the House Judiciary Committee. (Nixon resigned before the House could vote on them.)
Trump’s next sentence says that the articles of impeachment “include no crimes, no misdemeanors, and no offenses whatsoever.” The sentence rests on a very basic linguistic error. The Constitution does not say that the president can be impeached for crimes or misdemeanors. It says he can be impeached for “treason, bribery, or other high crimes and misdemeanors.”
The key word here is the adjective “high.” It applies both to “high crimes” and “high misdemeanors.” The word “high” means “political,” or connected to the office of the presidency, as Alexander Hamilton explained in Federalist No. 65. The framers took the phrase “high crimes and misdemeanors” from the English law of impeachment. That law clearly described high crimes and high misdemeanors as completely different from ordinary crimes or ordinary misdemeanors. High crimes were crimes against the state; high misdemeanors were similarly wrongful official acts.
The upshot is that the articles of impeachment don’t need to specify any statutory crimes, or any misdemeanors of any kind. They need to specify high crimes and misdemeanors under the Constitution — which they absolutely do.
In addressing the abuse of power article, Trump astonishingly never mentions soliciting President Volodymyr Zelenskiy of Ukraine to investigate Joe Biden. He speaks only about the “favor” he asked for, which referred, he says, to his request for Zelenskiy to speak to attorney general Bill Barr. He says he “put America’s interests first,” with no mention of how the national interest was served by his request for an investigation of Biden.
Trump then claims what Congress is doing is “no more legitimate than the Executive Branch charging members of Congress with crimes for the lawful exercise of legislative power.” But of course Congress has the constitutional power and responsibility to impeach the president. The president has no similar oversight power over Congress.
To the contrary, the Constitution specifically makes members of Congress immune from any form of criminal process for the exercise of their legislative function. Trump’s comparison is misleading and constitutionally false. It’s also a bit frightening for its implicit hint that the president could bring criminal charges against Congress — even if that threat is legally impossible to carry out.
When it comes to obstruction of Congress, Trump asserts that he is being impeached “for asserting Constitutionally based privileges that have been asserted on a bipartisan basis by administrations of both political parties throughout our Nation's history.” That’s wrong, too, Trump is being impeached for the unprecedented act of ordering a complete stonewall of the impeachment inquiry.
Finally, Trump insisted that he has
been deprived of basic Constitutional Due Process from the beginning of this impeachment scam right up until the present. I have been denied the most fundamental rights afforded by the Constitution, including the right to present evidence, to have my own counsel present, to confront accusers, and to call and cross-examine witnesses, like the so-called whistleblower who started this entire hoax with a false report of the phone call that bears no relationship to the actual phone call that was made … More due process was afforded to those accused in the Salem Witch Trials.
The trouble with this argument is that there is no due process right in impeachment before the House. Impeachment in the House isn’t a trial in which the defendant would get the right to notice, the opportunity to be heard or the other rights Trump invokes from criminal trials. Some of those rights may well exist in the Senate impeachment hearing, which although not a criminal or civil trial is a distinct proceeding that the Constitution calls a “trial.”
But House impeachment is more like a grand jury proceeding, in which the prosecutors gather evidence and issue an indictment that leads to a trial. And in a grand jury, the defendant isn’t always entitled even to know about the proceedings in advance, much less to have a lawyer or present evidence. The Salem witch trials, for all their flaws, were trials — not indictments.
Trump told Pelosi that she had “cheapened the importance of the very ugly word, impeachment!” Trump’s response cheapens a very beautiful word, Constitution.
To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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