Impeach

The Case Against Donald Trump

Neal Katyal, Sam Koppelman

• Publisher: Canongate Books
• Year: 2019
• ISBN:
  9781838852139
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

The New York Times bestsellerWhat is impeachment? How does it work? And why is it so urgent to impeach Donald Trump?No one is above the law. This belief is fundamental to how the American system of government is meant to function – as fundamental as life, liberty and the pursuit of happiness – held sacred by Democrats and Republicans alike. But as celebrated Supreme Court lawyer and former Acting Solicitor General Neal Katyal argues in Impeach, if President Trump is not held accountable for repeatedly asking foreign powers to interfere in the 2020 presidential election, this could very well mark the end of US democracy. Impeachment should always be a last resort, explains Katyal, but the founders, core principles, and the Constitution leave no choice but to impeach President Trump – before it's too late.This clear and direct book explains what impeachment is, why it's in the U.S. constitution and why Donald Trump has left Congress and the American people with no choice but to remove him from office.

1

A BRIEF HISTORY OF IMPEACHMENT

The case against President Trump did not begin when he asked Ukrainian president Zelensky to do him a favor in 2019.

No, the case against President Trump began long before he ever took the oath of office; long before he decided to run for president; long before he was born.

The case against President Trump began at the very founding of our country—when 56 colonists came together to declare they would never again be ruled by an executive with unchecked power. To be exact: The case against President Trump began on July 4th, 1776.

That Time We Impeached King George III

Decades before Congress filed the first articles of impeachment, our founders drafted the Declaration of Independence.

The Declaration is remembered today for its opening lines—about self-evident truths, about all men being created equal, about life, liberty, and the pursuit of happiness. Children memorize these paragraphs in elementary school classrooms. Civil rights leaders, marching for liberty, have invoked them throughout our history. Politicians across our country, from every party, wax poetic about those opening words.

And yet—few could tell you what comes next.

After the soaring rhetoric in its opening lines, the Declaration of Independence transitions into a list of “repeated injuries and usurpations” caused by Britain’s King George III. The first one is haunting: “He has refused his Assent to Laws, the most wholesome and necessary for the public good.” And so are the 26 additional offenses our founders delineate, ranging from “[obstructing] the Administration of Justice” to “[refusing] to cause others to be elected.”

“A Prince whose character is thus marked by every act which may define a Tyrant,” the signers conclude, “is unfit to be the ruler of free people.” No longer, they declared, would they bow to King George III, because the United States would be, from that moment onward, “Free and Independent.”

In this way, the Declaration amounts to what could be considered America’s first articles of impeachment. So it’s no surprise that when it came time for our founders to write a constitution of their own, one of their central objectives was ensuring that our country would never be ruled by someone asserting king-like powers again. As Benjamin Franklin explained, referring to George Washington, “The first man put at the helm will be a good one.” But, he added, “Nobody knows what sort may come afterwards.” “The executive will be always increasing here, as elsewhere,” he warned, “till it ends in a monarchy.”

That belief, shared among our founders, is the reason they included so many checks and balances on presidential powers and prerogatives in our Constitution. It’s why, in the Constitution’s first article, they created Congress—so the legislative branch could check the executive, whose creation came only later, in Article II. It’s why they split Congress into two chambers, the House of Representatives and the Senate, so no one body would have too much power. And, to create what James Madison called a “double security,” it’s also why they divided power between the central government and states.

Our founders’ fear of any individual person having too much power also led to the establishment of judicial review—and to fixed terms of office, which ensured that the president of the United States would be subject to elections every four years, instead of being granted open-ended government service.

Every single one of these checks and balances was designed, at least in part, to prevent America from devolving into the very kind of monarchical government from which our country declared its independence. But in the summer of 1787, our founders realized that even these checks were not enough—because any president could simply decide to ignore them. That meant our country needed another tool to hold our president accountable: impeachment.

The Constitutional Convention

The Constitutional Convention began in May, but the question of impeachment didn’t come into focus until two months later—on July 20, 1787. On that hot summer day, two of the convention’s delegates, Charles Pinckney and Gouverneur Morris, laid out the case against Congress having the power to remove a president from office. Their belief was simple: If a president were so bad, wouldn’t he simply lose his next election? Why, they asked, would you ever need to preempt the will of the people?

These were important questions, but Charles and Gouverneur’s fellow delegates had answers. George Mason in particular had a knack for tearing down any arguments opposing impeachment. “Shall any man be above justice?” he exclaimed. “Above all shall that man be above it, who can commit the most extensive injustice? . . . Shall the man who has practised corruption & by that means procured his appointment in the first instance,” he concluded, “be suffered to escape punishment, by repeating his guilt?”

In other words, without the protection of impeachment, what would stop a president from committing crimes to win office—particularly if he knew that he would have full immunity afterward?

Mason sometimes operated as a one-man idea factory, but he had supporters this time. Here, crucially, James Madison, a chief architect of the Constitution, agreed with him on the floor of the convention. The president, Madison warned, “might lose his capacity after his appointment. He might pervert his administration into a scheme of [embezzlement] or oppression.” Or, he added, in words with special resonance today, “he might betray his trust to foreign powers.” Only impeachment, he believed, could protect our country from a president guilty of offenses like these.

William Richardson Davie, from North Carolina, made a similar point, warning that an unimpeachable president might just “spare no efforts or means whatever to get himself reelected.”

The debate went on for a while. Rufus King, a delegate from Massachusetts, was left unconvinced by Madison’s argument. As historian Jill Lepore writes, King, like Morris, “worried that the independence of the executive branch would be lost if the threat of impeachment were wielded by the legislative branch and held over the President.”

But while King had a point, the delegates were ultimately more receptive to an argument made by Elbridge Gerry. “A good magistrate will not fear [Congress],” Gerry said. “A bad one ought to be kept in fear of them.”

At one point, as tensions grew between those who supported impeachment and those who did not, Benjamin Franklin, whose remarks often carried more weight than those of anyone else present, quieted the room. “What was the practice before this in cases where the chief Magistrate rendered himself obnoxious?” Franklin asked, before providing a chilling and brief answer to his own question: “Assassination.”

While Franklin understood impeachment could be burdensome, he believed that a legal mechanism for removing a public official was all that stood between our democracy devolving into anarchy the moment a president was deemed by the people to be unfit for office.

By the end of the day, Gerry, Madison, Mason, and Franklin had convinced the majority of the convention that impeachment should in fact be included in the Constitution. As Lepore writes, “Even Gouverneur Morris had come around and changed his mind.” In America, Morris concluded, “The people are the king.” And so no one, not even our president, would be above the law.

How Impeachment Would Work

Over the following months, as the delegates determined how impeachment would work, they turned to an unlikely source for inspiration: the British.

The king of England, of course, could never be impeached, but Parliament did have a protocol for removing his ministers: the House of Commons was responsible for accusing officials, and then the House of Lords was responsible for trying them. While our founders were no fans of the British government, they thought this system worked well, so they devised a similar procedure for the United States.

The House of Representatives would investigate, and if the majority of the body agreed with charging the president, they would send articles of impeachment to the Senate, where the president would be tried. Only if two-thirds of the Senate agreed that a president’s conduct was impeachable would he be removed from office. (As in criminal courts, the idea here is that the bar for conviction should be higher than the bar for indictment.)

The division of powers when it came to impeachment, our founders felt, was important, because the two halves of the legislature were designed to work differently from one another. Members of the House, they believed, would more directly represent the people they served, while senators would represent their states. (Before the 17th Amendment, ratified in 1913, senators were selected by state legislatures, not the people.) This structural dichotomy between House and Senate is the basis of Article I, Section 7 of the Constitution, which says that laws can be passed only if both Houses of Congress consent. (Even if 100 senators voted for a bill, it could never become law unless the House supported it too.) And a similar idea, based on Britain’s bicameral legislative structure, undergirded their “two to tango” requirement for impeachment.

The founders’ approach to impeachment, however, was different from Britain’s in several key ways. While Parliament could only impeach the king’s ministers, Congress could impeach the president of the United States, as well as the “Vice President and all civil Officers of the United States.” (No, despite President Trump’s claims, “officers” doesn’t include senators like Mitt Romney.) And unlike in Britain, where Parliament could send an official to prison or to their death as a result of impeachment proceedings, in America, “cases of impeachment,” the delegates wrote in the Constitution, would not “extend further than to removal from office.”

As the convention wound down, the delegates had a solid idea of what impeachment would look like in the United States of America, but on August 31, 1787, the 98th day of the convention, there was one urgent question they still hadn’t answered: what, exactly, would qualify as an impeachable offense?

In early drafts of the Constitution, the standard had been “malpractice or neglect of duty,” but the delegates were worried that would leave Congress with too broad a mandate. So after months of procrastination, the delegates did what they always did when they could no longer afford to delay answering a difficult question: they assembled a committee. They called it the Committee on Postponed Matters. It consisted of one delegate from each of the 13 colonies, and it was tasked with determining what kinds of offenses would warrant impeachment.

Less than a week later, on September 4, the committee released a report determining that a president could be impeached only if found guilty of treason or bribery. But on September 8, George Mason lambasted this standard, arguing it would not “reach many great and dangerous offenses.”

He was right: limiting impeachment to treason or bribery would be nowhere near as effective a check on the president’s power as our founders intended it to be. The Constitution’s definition of treason, after all, was deliberately very narrow, including only “levying war against [the United States], or . . . adhering to their Enemies.” And the term “bribery,” left undefined in the Constitution, likewise excluded a wide range of offenses the founders viewed to be impeachable, including the solicitation of foreign interference in an election. (For more on bribery, read Chapter 3.)

Mason’s suggestion? Lowering the bar to include “treason, bribery, and maladministration.”

Madison, one of the members of the committee, agreed with Mason’s rebuke of the treason-and-bribery standard but felt that including “maladministration” was an overcorrection. “So vague a term,” Madison said, “will be equivalent to a tenure during pleasure of the Senate.” Madison was afraid that this language would make the president more like a prime minister, subject to votes of no confidence by the legislature at any point.

Mason conceded Madison’s point and sent back an edit that would change the course of American history. “Maladministration,” he decided, would be replaced with “high crimes and misdemeanors against the state,” a term borrowed from the English Parliament, whose meaning, as I’ll explain on the following pages, has been debated ever since.

The committee voted 8–3 in favor of the new standard, changing it slightly to read “high crimes and misdemeanors against the United States.” But the phrase’s journey through the byzantine procedures of the Constitutional Convention was not finished. It still had to be approved by one more constituency: the Committee on Style.

This Committee on Style didn’t have many responsibilities—and was explicitly barred from changing the substance of any statutes. Its sole purpose was to ensure that the Constitution would be written in a way that could be understood for centuries. So when its members received the language surrounding impeachment, they didn’t plan to make any major revisions. And, in some ways, they didn’t. They simply made the phrase “high crimes and misdemeanors against the United States” more concise, deleting the last four words.

The final text, which would come to comprise Article II, Section 4 of the Constitution, read as follows:

“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.”

This may seem like a minor edit, but in deleting four words, the Committee on Style played a role in bewildering generations of lawyers, politicians, and citizens who still debate what qualifies as an impeachable offense.

What High Crimes and Misdemeanors Are Not

This raises the question: What are high crimes and misdemeanors?

To understand what they are, it helps first to understand what they are not. That’s because impeachment is designed to be rare, reserved only for a very specific kind of offense. And, in most cases, if you’re wondering whether a president’s actions are impeachable, the answer will likely be no.

Public opinion on what is and isn’t impeachable is shaped by two widespread misunderstandings of the phrase “high crimes and misdemeanors.” The first is that a president can be impeached only for crimes and misdemeanors laid out in the federal criminal code. The second is that a president can be impeached for all crimes and misdemeanors laid out in the criminal code. Both of these are wrong.

Let’s start with the first. The idea that a president can be impeached only for violations of a criminal statute is atextual: the Constitution does not say that. Moreover, it is illogical, as it would exclude many abuses of power that our founders deemed clearly worthy of impeachment.

Let me offer an example. What if an incumbent president’s opponent in the general election were murdered by the president’s brother one day and the president pardoned his sibling the next day? According to the Constitution, the president’s pardon power is unlimited “except in cases of impeachment,” which means he would have the right to declare, based on the text of the Constitution, that what his brother did was, to quote President Trump, “very legal, very cool.” And because this president controls the Justice Department, he could direct prosecutors not to charge his brother in the first place, before needing to use his pardon power...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Introduction
• 1. A Brief History of Impeachment
• 2. The Evidence
• 3. The Case Against President Trump
• 4. Questions and Answers
• 5. Out of Many, One
• Acknowledgments
• Appendix
• The Whistleblower Complaint
• The July 25 Call Summary
• The Text Messages
• The White House Letter
• Notes