The High Crime Is His Demeanor
The legal arguments justifying Mr. Trump’s recent actions sound convincing, but they miss the point entirely: that impeachment is fundamentally about the character and fitness for office that Trump sorely lacks.
There has been more than the usual amount of legal apologetics arising from the Trump camp lately. After last summer’s display of prosecutorial zeal against Hillary Clinton for the crime(s) of _________________, and the accompanying pleas to summarily “lock her up,” the Trumpists have suddenly discovered their Inner Defense Counsel.
Their client is the President of the United States, who stands accused of, among (many) other things, (1) firing the FBI director investigating a foreign power’s electoral intervention on his behalf and (2) subsequently sharing top secret intelligence with that same foreign power. The compelling evidence against the President is mounting. It’s no small wonder, then, that his defenders resort now to a hackneyed legal trope: “If you don’t have the facts, argue the law.”
Pounding the table and heaving themselves upon the mercy of the Court of Public Opinion, the Trumpists now appeal to the technicalities of due process to justify leniency: the President had legal authority to obstruct law enforcement and to endanger the lives of foreign intelligence assets.
“The minute the President speaks about (classified intelligence) to someone,” said U.S. Senator James Risch (R-ID), “he has the ability to declassify anything at any time without any process.”
Conservative constitutional law professor Josh Blackman of the South Texas College of Law noted that Trump had the unilateral right to fire Comey for any or no reason because he was a “principle officer.”
These are decent-ish arguments. They’re also wholly irrelevant. Even if we assume that Donald J. Trump has committed no crimes and broken no laws, these actions provide unassailable grounds for impeachment and removal from office. Now. Today. Why? Because he is clearly guilty of the sort of “high crimes and misdemeanors” the Founders established as the threshold of Presidential character and fitness.
Confused? Understandable. It’s confusing. Let’s walk through this.
Our criminal justice system rests on the bedrock premise that no one can or should be punished unless duly convicted of a specific crime explicitly spelled out in a specific statute or regulation. Nullem crimen sine lege: “no crime without law.” Due process requires that a defendant had to have had legal notice that his acts were criminal at the time he committed them. Therefore, we cannot “lock her up” for merely improper or immoral behavior, as noted by Director Comey when he declined to prosecute Hillary Clinton for _______________ last July.
“High crimes and misdemeanors” include any bad actions that demonstrate a person’s moral, professional or temperamental unfitness for office.
That the Trumpists have resorted to a line of reasoning they rejected in totem last summer is more than a little ironic; it also doesn’t apply to the impeachment of a sitting president. “High crimes and misdemeanors” are not strictly limited to jailable offenses, but include any bad actions that demonstrate a person’s moral, professional or temperamental unfitness for office. Under that standard, it is difficult if not impossible to credibly claim that Trump’s actions do not thereby constitute “high crimes or misdemeanors.”
The expansive definition of the phrase is evident in its English origins, a definition ratified by the Supreme Court in United States v. Burr (1807). The first official charged with “high crimes and misdemeanors” was Michael de la Pole, Lord Chancellor under King Richard II, in 1386. His offenses, according to Parliament? Breaking a promise made to a committee, in addition to a poor strategic decision that resulted in the town of Ghent falling to the French – a medieval foreshadow of Benghazi. Other grounds for Parliamentary impeachment have included “cronyism,” dereliction of duty, corrupt influence, profligate spending, and even negligence. These grounds were in addition to the statutory criminal acts of treason and bribery.
So when the time came for the Framers to determine the outer behavioral limits of the new office of President, they settled on a standard familiar to those acquainted with English common law:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Article II, Section 4
The American definition reflected the English. George Mason had originally proposed “maladministration,” a term employed by several early state constitutions. Cotesworth Pinkney identified the standard as a “betray(al of) the public trust.” Alexander Hamilton viewed impeachable those offenses that “are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.” The first federal impeachment proceeding in the House reflected this broad definition: Judge John Pickering of New Hampshire was removed in 1804 for “chronic intoxication.”
The Pickering impeachment reflects the Framers’ fixation on civic virtue and their insistence that strong moral character and integrity were (and still are) prerequisites for the faithful discharge of the duties of public office. This is why we don’t refer to it as an “indictment,” but an “impeachment.” To impeach is not merely to accuse, but to “call into question” the true nature of a thing. Under the rules of evidence that govern trials throughout the country, lawyers seek to “impeach” the credibility of a witness by despoiling their trustworthiness or perception.
Where our legal codes fail to stymie tyranny or bigotry, the higher law steps in to supply a standard through the voice of reason, conscience and common sense.
Impeachment, then, is not a matter of narrow legal pigeon-holing, but rather of holistic assessment of character as reflected in discrete bad acts. If a statutory crime is the violation of a statutory law, then a “high crime” is a violation of a “higher law,” a more transcendent standard of human behavior rooted in our shared values and principles. When the Constitution permitted slavery, Lincoln’s Secretary of State William H. Seward invoked “a higher law than the Constitution” as grounds for its ultimate illegality. Where our legal codes fail to stymie tyranny or bigotry, the higher law steps in to supply a standard through the voice of reason, conscience and common sense.
Which brings us back to Donald Trump. In just under four (4) months of office, Trump has engaged in a series of actions that may or may not constitute “crimes,” but certainly represent the “high crimes” reflecting his demeanor – his flagrant and intentional disregard for the rule of law and constitutional rights and, in this particular case, our basic national security.
It may or may not be technically true that Trump had the right to disclose to Russian foreign minister Sergei Lavarov the contents of top secret “code word” intelligence regarding an ISIS plot. It cannot be said with a straight face that doing so in violation of our intelligence agreements with Israel and endangering the physical safety of their human assets, is not a “high crime” betraying Trump’s fundamental unfitness for the office he occupies.
Trump has engaged in a series of actions that may or may not constitute “crimes,” but certainly represent the “high crimes” reflecting his demeanor
It likewise may or may not be true that Trump has officially committed the crime of “obstruction of justice” by pressuring Jim Comey to halt the FBI investigation into the Trump regime’s financial ties to Russia, then firing Comey three months later after he refused. What is absolutely inescapable is the conclusion that these actions reflect a deliberate effort on the part of Trump to undermine or derail that investigation. It betrays Trump’s baseline contempt for the constitutional safeguards hinder the unilateral imposition of his agenda.
In short, these acts betray an unpresidential (and dangerous) demeanor on the part of the man occupying the most powerful position on Earth.
Granted, this is likely the tip of the iceberg of Trump’s malfeasance – and that of his closest associates. We haven’t even begun to get into the details of what multiple investigations into his regime’s collusion with Russia will find. We can safely predict that a rotten tree will not yield good fruit, and if there’s anything we’ve learned from our presidential history, it’s what to do with a rotten tree.
We have to chop it down.