Comment: Argue Constitution, not laws, in impeachment

The framers chose broad language to cover any conceivable abuse of power.

By Noah Feldman / Bloomberg Opinion

House Democrats will shift this week from closed-door evidence-gathering to public impeachment hearings against President Trump. The single most dangerous pitfall they face is allowing too much legal talk to obfuscate the fundamental wrongness of Trump’s conduct: using the might of his office to pressure a foreign country to destroy the candidate he thought most likely to threaten his re-election.

To be clear, it’s not that the law is irrelevant to impeachment. To the contrary. The Constitution says that impeachment is appropriate for “high crimes and misdemeanors.” The framers chose that broad language so that it would cover any conceivable abuse of power.

In contrast, laws passed by Congress — statutes — are very detailed descriptions of specific acts that count as crimes. House Republicans will likely use statutory law to come up with legal-sounding arguments to maintain that Trump has done nothing wrong. Democrats could then fall into an abyss of prattling on about “quid pro quo” and the statutory definition of extortion. What Democrats need to do instead is name Trump’s impeachable conduct for what it is: a constitutional violation and an abuse of power.

It’s crucial for Democrats to remember two things in laying out the impeachment case. First, to qualify as a high crime or misdemeanor, an act does not have to be a crime as defined by the statute books. Sure, a highly convincing case can be made that Trump violated extortion statutes by conditioning aid to Ukraine on his demand that Ukraine open an investigation of Joe and Hunter Biden. But Democrats don’t need to prove such a statutory violation for Trump to merit impeachment under the Constitution. And by logical extension, if Republicans could prove that Trump’s actions technically didn’t qualify as a crime under federal statute, that doesn’t get him off the hook for high crimes and misdemeanors.

Second, and even more fundamental, Democrats must avoid the mistake that the political philosopher Judith Shklar called “legalism.” As Shklar defined it in her classic book by that name, legalism is the “ethical attitude” that “moral conduct is a matter of rule following.”

Applied to impeachment, legalism would consist of the idea that Trump’s conduct can best be condemned by identifying a specific legal rule and showing that he violated it.

That kind of legalism is always going to be tempting for Democrats. That’s partly because it seems possible that Trump broke clearly written-down rules. It’s also partly because American political culture is already suffused with the idea that moral conduct can be defined by a set of rules that are written down and then applied in an almost mechanical way to every situation.

Yet pursuing legalism to impeach Trump would be a serious mistake, constitutionally and tactically.

As a matter of constitutional meaning, impeachment is, and was meant by the framers to be, a significant exception to this sort of legalism. The framers wanted impeachment to be broad enough to cover all manner of abuses of power.

That is why they did not offer any statutory definition of “high crimes and misdemeanors.” These words were self-consciously borrowed from British parliamentary tradition, which used impeachment to remove government officials who by their conduct in office distorted the basic structure of government.

But although it’s intentionally broad, the phrase “high crimes and misdemeanors” has a legal meaning which can be determined from history, practice and common sense. Most basically, it means an abuse of power connected to political office. The punishment for this legally defined conduct it is not prison but removal from office, and potentially a ban on running again.

The attempt to impeach Andrew Johnson was based, at the broadest level, on the idea that he was defying the will of Congress by failing to enforce Reconstruction policies against the former Confederate states. Richard Nixon no doubt violated many specific laws, but the articles of impeachment that the House Judiciary Committee voted against him spoke of “abuse of power,” “contempt of Congress,” and “obstruction of justice.” All of these are wrongs that undermine the Constitution. Only the last of these is a statutory crime.

The impeachment of Bill Clinton was by contrast highly legalistic. The House impeached him for lying to the grand jury about Monica Lewinsky and obstructing justice to try to hide the details of their relationship. Doubtless Clinton’s conduct was criminal. But in retrospect, the best argument for impeaching him would have been that he had committed a moral wrong by abusing the office of the presidency to engage in and cover up the relationship. That may or may not have been a good enough reason to remove him from office, but at least the charge would have fit the nature of impeachment.

Tactically, Democrats need to avoid legalism in impeachment because too much discussion of legal rules will give Trump’s defenders the chance to change the whole sordid Ukraine affair into a lawyerly argument about whether the inherent authority of the presidency allows a president to do whatever he wants in dealing with foreign countries.

That legal debate should be irrelevant. The very definition of an abuse of power is for a sitting president to use his office for personal, partisan gain. Using the presidency to get Ukraine to investigate Biden was — obviously — a brazen attempt to gain unfair advantage in the 2020 election. That abuse of power is a high crime and misdemeanor. It merits impeachment. And legalism shouldn’t be allowed to distract the public from it.

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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