Since former FBI Director James Comey testified before the Senate Intelligence Committee last June, there has been a more or less steady impeachment drumroll. According to recent polls, more than 40% of voters think President Trump should be impeached, while less than 40% think he is doing a good job.
Article Two, Section 4 of the Constitution provides that the President may be removed from office “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” This provision has been rarely used. President Andrew Johnson was impeached in 1868 for “high crimes and misdemeanors,” specifically that he had improperly removed Secretary of War Stanton from office. He escaped conviction in the Senate by a single vote. In 1998, the House of Representatives impeached President Clinton on grounds of perjury and obstruction of justice, but the Senate acquitted him the following year.
That’s it for presidential impeachments. President Nixon came close, but he resigned while the House was considering charges against him.
My interest in this subject goes back to the “New Hampshire Impeachment” case. In April of 2000, New Hampshire House Speaker Donna Sytek, engaged me as Special Counsel to investigate the conduct of Chief Justice Brock and two other members of the state supreme court. The genesis of the case was a bitter and public divorce involving Justice Stephen Thayer, who resigned from the court following an investigation by the state Attorney General, Phil McLaughlin.
The New Hampshire constitution says nothing about “high crimes and misdemeanors” but specifies “bribery,” “corruption,” “malpractice,” and “maladministration” as grounds for impeachment. During the investigation phase, I met regularly with the House Judiciary Committee, some of whose members wondered aloud whether it would be impeachable “maladministration” if the Chief Justice simply wasn’t doing a good job,
It was no secret that many legislators were angry with Brock over the still-raw “Claremont” decision, which held that the New Hampshire school funding system was unconstitutional. I explained that independence of the judiciary means that legislators don’t get to second-guess judicial decisions, and that “maladministration” required serious misconduct.
In August of 2000, a substantial majority of the entire House impeached Brock, alleging ethical offenses. It’s safe to say that those charges pale by comparison to any potential charges against President Trump.
When the Speaker asked me to try the case before the state senate in the fall, I consulted former Massachusetts Chief Justice Edward Hennessey. He told me that I should keep foremost in my mind that the future of the court was at risk. In other words, the stakes were different, and a lot higher, than in the lawsuits I had tried over the years.
I set out to “win” the case, as any trial lawyer is obligated to do, but senators, unlike jurors, are not constrained from speaking out, and it was apparent from the beginning that more than one third of the state senators supported Chief Justice Brock. As Special Prosecutor, I considered it my job to provide them with all the evidence, not just that which was favorable to the prosecution. So I called witnesses, including superior court judges, whose testimony was adverse to Brock. But I also called judicial colleagues who, I knew from the investigation I had conducted, would testify in his favor. After three weeks of trial, the New Hampshire Senate acquitted Chief Justice Brock.
While looking into the question of what conduct rises to the level of an impeachable offense, I discovered that in 1787 the Founding Fathers rejected New Hampshire’s choice of “maladministration” on the grounds that it was too vague. They settled instead on “high crimes and misdemeanors,” words dating back to English impeachment proceedings in the 14th century. However, just because words are old doesn’t make them clear, and, like many legal terms, this one doesn’t mean what it sounds like. It has nothing at all to do with criminal law.
It’s the use of the word “High,” that “creates an entirely different animal,” according to Ann Coulter, a Donald Trump supporter (even more so since his recent comments about Third World countries) and not someone on whom I would ordinarily rely. In her book “High Crimes and Misdemeanors, The Case Against Bill Clinton,” Ms. Coulter cites James Madison for the proposition that only men of the “most virtue” would become our leaders, and the impeachment power was designed to “keep them virtuous whilst they continue to hold their public trust.” In other words, she says, it’s a “moral standard.” As she colorfully put it, “Oral sex from interns (sic) in the Oval Office will do.” In her view, it seems, overt racism will not.
During the course of the Brock case, I learned two things about the impeachment process. One is that we have few guideposts to show us the way. The other is that it tests the very fabric of our governmental institutions.
I have no idea whether President Trump will be impeached, under either Madisonian or Coulterian criteria, and I express no opinion on whether he should be. I know from my own experience, however, that impeachment may be a little bit legal, but it’s mostly political.