Conservative Constitutional Ideology Can Help to Impeach Trump

Can a president be impeached for telling any lie?  According to the conservatives who pushed for impeachment of President Bill Clinton, the answer is a resounding “Yes”. Under precedents set by conservatives, Trump, having told numerous outright lies, including falsely claiming former president Obama unlawfully wiretapped him, should be quite vulnerable to impeachment. Let’s examine conservative constitutional ideology and see how this came to be and how it could be used to advantage by progressives in threatening or pursuing impeachment of Trump.

Constitution Interpretation: Originalism vs. Living Constitutionalism

One of the main factors that has long divided liberals and conservatives is how the U.S. Constitution should be interpreted. Conservatives are “Originalists”. Most liberals and progressives generally believe the Constitution is a “Living Document” that adapts to a changing society. According to recent Pew Research, liberals and conservatives remain deeply divided about how the U.S. Supreme Court should interpret the Constitution. While liberals believe the Constitution is a living document that should be interpreted in light of the realities of today’s world, conservatives believe it should be strictly interpreted according to its language and original intent.

At first blush, one might assume that conservatives would believe that the Impeachment Clause of the U.S. Constitution should be interpreted very strictly and limited in its application to only what is expressly covered in the text of the clause. Turns out that is not the case, however. At least that wasn’t the case when conservatives initiated impeachment against Former President Bill Clinton. This article explains how Trump can be impeached using only the conservative ideology of constitutional interpretation — especially in light of a twist in their ideology that will be revealed.

First, let’s take a moment to fully understand the difference between the schools of thought of Originalism vs Living Constitutionalism. Originalism insists that the meaning of the Constitution can only be derived by the courts from the language used in the document itself and as interpreted by the words of the founding fathers at the time of its debate and ratification. Living Constitutionalism, on the other hand, insists that the consequences apparent in current society from application of an interpretation should also be used to guide the choice of interpretation. That is, if a particular interpretation is going to be offensive in light of current commonly held values, it should be discarded for a more acceptable, yet still viable, interpretation.

The Constitution, like all laws, is written in words. Words, especially in the English language, are often ambiguous. Even when they are both honestly and objectively trying to understand, two different people can read the same words and come up with two different meanings. Also, linguistics informs us that language evolves, changing the common meanings of some words over time and usage. Lawyers and judges often deal with the ambiguity of language in attempting to find the correct interpretation of contracts, statutes, and even constitutions. Factors to guide these interpretations have evolved in the law. These factors include: 1) the plain meaning of the language, 2) consistency within the language and with other equal laws, 3) the intent of the enactors as determined from historical documents, and 4) the effect or consequences of an interpretation in light of the values of current society.

In short, conservatives do not agree to using the fourth main factor. They believe that current societal values are irrelevant. In statutory interpretation, conservatives believe when an outcome resulting from a literal interpretation of a law violates current societal values, we must convince existing lawmakers to change the statute or wait until the next election and vote in lawmakers who will change the language. When it comes to constitutional interpretation, conservatives believe that if an interpretation of the Constitution has an unacceptable consequence in a particular case in light of current societal values, we must go through the practically impossible task of amending the Constitution to correct it. Conservatives argue, especially when it comes to Roe v. Wade, that Justices of the Supreme Court should not create “policy” through interpretation of the Constitution. To do so, according to conservatives, allows the Justices to become unelected law-makers.

One might think, in light of the above, that conservatives would believe that grounds for impeachment of a president should be strictly limited to the language of the Impeachment Clause and the intent of the founding fathers who wrote the constitution. Not so — when it came to the impeachment of Bill Clinton, conservatives added a twist to their position on constitutional interpretation. But, before we can get into that, we must look at the Impeachment clause of the U.S. Constitution and the history of its use.

The Impeachment Clause

Article II, Section 4 of the U.S. Constitution, states: “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.

“Impeachment” does not necessarily mean removal from office. Rather, it is the bringing of proceedings and initiation of a trial that may ultimately result in removal. The official must be found guilty during the impeachment trial before removal occurs. (Recall President Clinton – impeached but found not guilty and thus not removed.) Impeachment is analogous to indictment in regular criminal court proceedings. Under the Constitution, the House of Representatives has the sole power of impeaching, while the United States Senate has the sole power to try all impeachments. Any representative in the House can initiate an impeachment, which must then pass three specific committees to reach the House floor. While only a majority vote on the House floor is required to send the impeachment to the Senate for a trial, a two-thirds majority is required for conviction in the Senate. Although the Chief Judge of the Supreme Court is allowed to preside over the impeachment trial in the Senate, the ruling of the Senate on an impeachment trial is not subject to judicial review. While there have been two presidents “impeached” (Andrew Johnson and Bill Clinton), no U.S. President has been removed from office by impeachment and conviction to date. (Nixon likely would have been, but he resigned before the question of impeachment reached the House floor.)

Grounds for Impeaching Trump

With that background on impeachment, let’s look at the Impeachment Clause to see what might justify the impeachment of Donald Trump.

Because we are not officially at war with Russian, “treason” as a basis for impeachment doesn’t work with Trump, despite evidence that may be brought forward to prove his ties to Russia. As stated in 18 U.S. Code § 2381, “Treason” applies to: “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.” This has been interpreted to apply only in times of war. Thus, using a strict interpretation of “treason”, it would not lead to a successful impeachment (unless some really dramatic additional facts are revealed.

“Bribery”, the second basis listed in the Impeachment Clause, may exist, but would be very difficult to prove, especially in a heated political venue.

High Crimes and Misdemeanors

However, “high crimes and misdemeanors” is also stated as grounds for impeachment in the Impeachment Clause and has a much broader application. The issue in an impeachment of Trump, as was the case with Clinton, would be whether he has committed “high crimes and misdemeanors”.

First, it should be noted that the word “high” has been determined not to refer to highly serious crimes, but rather any crime committed by a person in high office. Thus, historically, impeachment is not limited to serious crimes. But, what if no crime at all can be proven? The issue then becomes whether non-criminal breaches of trust are impeachable. At first blush, one might think that conservatives would scream to high heaven at the thought of such an interpretation. As stated above, however, that ain’t necessarily so. Conservatives have argued that the intent of the drafters requires a loose interpretation of “high crimes and misdemeanors”. As will be addressed below, they have also argued for a living document application of interpretation in impeachment cases.

The first question becomes whether the framers of the Constitution intended breaches of trust that may not amount to criminal violations to be impeachable even using strict conservative ideology.

Is Being Obnoxious Grounds for Impeachment?

According to founding father Ben Franklin, while debating the inclusion of the Impeachment Clause into the Constitution, the answer is yes, a president can and should be impeached when he becomes “obnoxious”.

The Founding Fathers wrote impeachment—originally a Roman political institution—into the Constitution for the purpose of removing an official who, in the words of Benjamin Franklin, had “rendered himself obnoxious.”

Dr. Franklin was for retaining the clause [on impeachment], as favorable to the executive. History furnishes one example only of a first magistrate being formally brought to public justice. Everybody cried out against this as unconstitutional. What was the practice before this, in cases where the chief magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused.

(Debates in the Constitutional Convention, Philadelphia, Pennsylvania (July 20, 1787); reported in James Madison, Debates on the Adoption of the Federal Constitution, ed. Jonathan Elliot (1845), vol. 5, p. 342.)

In other words, Franklin thought it better to allow impeachment for obnoxious behavior than to risk an assassination. That was the intent of the framers of our Constitution.

The “burden of proof” is always important to the outcome of a trial. Crimes in general require “proof beyond a reasonable doubt”. However, as another example of why conviction of a crime should not be necessary to impeachment, Franklin appears to have intended a lesser burden of proof for “high crimes and misdemeanors” in the Impeachment Clause, when he stated:

In the case of impeachments, which are the groans of the people,… and carry with them a greater supposition of guilt than any other accusation, there all the Lords must judge.

Benjamin Franklin, Debates in the Constitutional Convention, Philadelphia, Pennsylvania (July 20, 1787); reported in James Madison, Debates on the Adoption of the Federal Constitution, ed. Jonathan Elliot (1845), vol. 5, p. 340–41.

The Conservative Twist

Conservatives and Neo-Cons often seem indifferent to accusations of hypocrisy. When it came to the impeachment of President Bill Clinton, they had little hesitation in devising a way to liberally interpret the Impeachment Clause to meet their needs for the time. While the loudest voice in this maneuver was the queen of neo-cons herself, Anne Coulter, she was also backed up by respected conservative constitutional scholars like Neal K. Katyal.

While impeaching Bill Clinton, conservatives argued that the question of how the Constitution should be interpreted depends upon . . . wait for it . . . who is interpreting it.

[O]ne can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. Originalism, as practiced in this way, is a doctrine that constrains unelected judges from an unduly free interpretive approach, but it does not preclude Congress from making constitutional judgments that are more flexible and nuanced.

Impeachment as Congressional Constitutional Interpretation, Neal Kumar Katyal, 63 Law & Contemp. Probs. 169-191 (2000).

And, it goes much further, Coulter, in her book, stated:

While Clinton’s defenders act as if an impeachable offense must be some immediate threat to the nation — such as the discovery that the president was conspiring with communist agents to turn over vital missile technology to Red China — impeachment was intended to be used, and always has been used, to remove officers who simply ‘behave amiss.” High Crimes and Misdemeanors – The case against Bill Clinton © 1998 – Regnery, Washington.

It was further argued that any lie by a president, other than one needed for national security, was an impeachable offense. The reasoning was that the oath taken by a president required the president to be faithful and truthful to the citizens and any breach of this duty was a breach of a sacred oath that constituted perjury and was impeachable.

The argument has been taken even further still:

The duties of the president are provided in Art. II Sec. 1 Cl. 8, to ‘faithfully execute the Office of President of the United States’ and to ‘preserve, protect and defend the Constitution of the United States’ to the best of his ability. He is ultimately responsible for any failures of his subordinates or for their violations of the Constitution and the rights of persons committed by them. It is not necessary to be able to prove that such failures or violations occurred at his instigation or with his knowledge, to be able, in Starr’s words, to lay them at the feet of the president. It is sufficient to show, on the preponderance of evidence, that the president was aware of misconduct on the part of his subordinates, and failed to do all he could to remedy the misconduct, including termination and prosecution of the subordinate and compensation for his victims or their heirs. His subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. And he is not protected by “plausible deniability”. He is legally responsible for knowing what everyone in the executive branch is doing.” Missing Grounds for Impeachment of Bill Clinton, Constitutional Society,

Thus, while conservatives will no doubt scream for a limited interpretation of the Impeachment Clause should an effort be made to impeach Donald Trump, their own positions during the Clinton impeachment will belie them.

Grounds for Impeachment of Trump

According to the conservative principles and arguments given precedence during the Clinton Impeachment, Donald Trump has already committed offenses that would justify impeachment. Even if we used an “originalist”, textual, interpretation of the Impeachment Clause, we are still led to the words of Benjamin Franklin which rely only upon obnoxiousness. The debate record from the Constitutional Convention reveals that the framers, being very concerned about despotic power and the populace reaction to it, intended the Impeachment Clause to be used whenever a president became “obnoxious”. That is, such obnoxiousness constitutes a breach of trust and is a “high crime” or “misdemeanor”. One of the dictionary meanings of “obnoxious” is dead-on in describing Trump – “annoying or objectionable due to being a showoff or attracting undue attention to oneself.” If Donald Trump is anything, he is obnoxious.

But, realistically recognizing that his obnoxiousness alone, despite the debate history of the framers, will not be enough, we can also point that Trump has violated his oath of office by lying about a former president, accusing Obama of unlawful wiretapping. This also constitutes a “high crime and misdemeanor” under Republican ideology. After all, they impeached Bill Clinton for denying a blow job by a consenting adult. Isn’t lying about a former President performing illegal wiretaps even more “obnoxious” to the truth?

So, whether one relies upon an Originalist interpretation or a “Living Document” interpretation, there is basis in the intent of the framers, as preserved in their debates over inclusion of the clause, to justify impeachment of Trump. But, it is not necessary to rely only upon an Originalist interpretation because conservatives, themselves, say it doesn’t apply to impeachment.

In addition to Trump’s lying about the former president wiretapping him, there are other grounds as well,

Trump has Violated the Emoluments Clauses

There are two “emoluments” clauses in our Constitution. They apply to accepting gifts or benefits from foreign governments as well as domestic interests. Trump does both. Trump is the sole beneficiary of a revocable trust that now holds his business interests. His son is trustee. Trump’s social security number is the sole social security number tied to the trust. The trust contains a mix of cash from Trump’s sale s of stock investments and his physical and intellectual properties, such as Trump Tower in New York, Mar-A-Largo in Florida and branding rights. Among other things, Trump’s trust has a liquor license for one of its hotels that opened last year in a building owned by the federal government. His family uses his presidency to promote their business interests. Eric Trump, who is Donald Trump’s son and executive vice president of the Trump Organization in charge of golf properties, told The New York Times. “I think our brand is the hottest it has ever been.”

Trump has placed himself not only above the law but above the Constitution. He has violated the Emoluments Clauses since day one of his presidency.

Trump has Violated the STOCK Act.

The STOCK (Stop Trading on Congressional Knowledge) Act — among other provisions — prohibits the president from (1) using nonpublic information for private profit, and from (2) intentionally influencing an employment decision or practice of a private entity solely on the basis of partisan political affiliation. Adopted in 2012, the act was designed to restrict insider trading by members of Congress and their staff. But ethics lawyers say it also applies to the president and would extend to private holdings like Trump’s real estate ventures. To allow his son to continue to run his businesses while taking him to sensitive government meetings appears to be a clear violation.

 Obstruction of Justice

Trump Foundation’s potentially illegal campaign donation to Pam Bondi, the Attorney General of Florida who dismissed fraud complaints about Trump University may well be a clear obstruction of justice. Florida Gov. Florida’s ethics commission is looking into it this possibility and the Citizens’ for Responsibility and Ethics in Washington have filed a complaint with the IRS calling for a criminal inquiry.

Also, by attempting to interfere with the investigation into his campaign’s ties with Russia, Trump may have obstructed justice by falsely claiming he was illegally wiretapped and falsely claiming that our British security allies participated in that illegal act. By personally disparaging (as President) judges who rule against his interests or programs, he appears to be using his office to interfere with the court system.

Trump’s tactics throughout his entire career appear to heavily rely upon using any means available to influence the outcomes of investigations against him. By continuing this pattern as president, he may well be crossing the line into obstruction of justice in numerous instances.

Collusion in Foreign Espionage

FBI Director Comey has confirmed there is an ongoing investigation into the Trump Campaign’s ties with Russia during the election. While as yet unproven, there is much smoke blowing from the coals of Russia’s established attempts to interfere in our presidential election. If some hard evidence comes out of coordination between the campaign and the Russians, that will constitute espionage. While perhaps not technically “treason”, it is certainly included within “high crimes and misdemeanors”.

The Reality

In reality, though, we must remember that ultimately “impeachment” is whatever a majority of the House of Representatives decides it to be in a specific case. A basis for conviction is what two thirds of the Senate is willing to agree that it is. Politics tends to get in the way of objective fact-finding and logical outcomes during impeachment proceedings. Republicans currently are the majority in both the House and the Senate. There are also serious questions of strategy. What would the full consequences of a failed — or even a successful — impeachment effort be? These questions need to be asked and answered before such an effort is undertaken.

The bottom line, though, is whether we can withstand the lasting consequences of a hugely dishonest president serving out a full term. One who tweets at the drop of a pin and has a long reputation of repeating and investing in unproven and even disproven conspiracy theories is not fit to lead our country. Whatever is decided, there are grounds existing already for impeachment. If and when Trump’s ties to Russia are verified by any credible evidence, there will be even stronger grounds for doing so.

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