It is now beyond dispute that the Russian government of Vladimir Putin sought to influence the outcome of the 2016 U.S. Presidential election. That the Russian government tried to subvert the American political process should come as no surprise—they’ve been at it for 50 years. What is different about this go-around is that high officials of the Trump campaign were stupid enough to go along with it. We know this is so because Donald Trump Jr. confessed to the deed (but not the stupidity) and released e-mails proving both. And this may not be the end of it.
So lets consider where this leads. For one thing, it is unlikely to end well. But let’s not get ahead of ourselves. At present, roughly everyone wants to see all the facts come out. Which is to say, (1) an examination of the various Trump enterprises and their commercial ties to Russian interests, (2) what meetings Trump officials had with Russian counterparties and who said what to whom, and (3) the extent to which President Trump was himself involved in these conversations, if at all.
To that end, the FBI investigation headed by Robert Mueller would seem to be the way to go. By all accounts he is investigating whether Trump obstructed justice when he fired James Comey, and whether there was collusion between the Trump campaign (and Trump himself) and the Russian government. The second is more important than the first because if there was no collusion, it’s hard to get too exercised over alleged obstruction when there is no underlying crime. So let’s consider collusion.
First, a definition.
In general, collusion is an agreement between two or more people to do something illicit. But that is kind of vague, so prosecutors generally turn to a charge of conspiracy. Conspiracy in the criminal law would occur when two or more people get together and agree to commit a crime—but they do not actually have to commit the underlying crime to be guilty of the charge. For instance, the conspiracy could be broken up by law enforcement before the conspirators act.
At this point, with what is publicly known it would be hard to charge Donald Trump Jr. with a crime, notwithstanding the daily hyperventilating at MSNBC. His agreeing to meet with Russian operatives who dangled oppo research in front of him was stupid, naïve and dishonorable, but not in itself criminal. And in any case, the criminal law is not the standard for what this is all about, which is impeachment.
There are two questions before us. One is evidentiary; the other is Constitutional. The first question is this. Did President Trump himself knowingly participate in an effort to cooperate, conspire or collude with a foreign power to secure an electoral advantage in the 2016 Presidential election? The second question is conditional on the first. If the evidence shows that Trump cooperated, conspired or colluded with a foreign power to secure an electoral advantage, what is the remedy?
Thus far there is no publicly available evidence that President Trump himself acted to collude with Russia. There is no question that he has bent over backwards to be at least rhetorically accommodating toward Russia in general and Putin in particular. Not only that, he frankly admitted firing Comey over “the Russia thing”, although he apparently took no steps to actually close down the investigation. Lots of smoke, but as yet no fire. So let’s ask the Constitutional question.
Does impeachment require proving that the President engaged in criminal behavior?
I believe the answer is: No. The House is within its rights to impeach, and the Senate to convict the President of “High Crimes and Misdemeanors” without finding the President guilty of criminal wrongdoing.
Let’s consider the possibilities by engaging in a thought experiment. Let us suppose that then candidate Trump knowingly acquired and used opposition research from a foreign government, or governments. Let’s also stipulate that Trump did not explicitly promise something in return. What then?
I believe that such behavior would constitute an impeachable offense—not because the behavior was criminal in the conventional sense—because it probably isn’t. It doesn’t have to be. The phrase “High Crimes and Misdemeanors” should be understood as referring not to the crime itself, but to crimes and misdemeanors committed by a “High” person, which is to say a person who holds high office. That does not mean that Presidential jaywalking is an impeachable offense, but it does suggest a political standard by which Presidential behavior may be judged.
That standard is the effect the behavior has on the society writ large. By that standard impeachable offenses would be ones that inflict great injury on the society itself, that are abuses of the public trust, that require a check to preserve the separation of powers or acts that deserve “perpetual ostracism from the esteem and confidence and honors and emoluments of his country.” (For an in-depth discussion see Carl Scott discussing Federalist #65 on Impeachment in First Things. Another source to check is the Constitutional Rights Foundation).
Abuses of the public trust, particularly with respect to treatment of a foreign power are especially egregious in our Constitutional scheme. That is because the founders only adopted the U.S. Constitution to replace the Articles of Confederation 13 years later in 1789 after a great deal of debate directed at strengthening the federal government without making the President into a de facto King. In addition, having just fought the revolutionary war, they wanted to make sure the U.S. did not become ensnared in Europe’s wars, or fall under the influence of a foreign power. So they adopted the emoluments clause, which among other things forbade the granting of Titles of Nobility by the United States, and prohibited public office holders from accepting gifts from any King, Price, or foreign state.
The emoluments clause was designed to stop politicians holding high office from falling under the sway of foreign powers. But it didn’t stop there. It was also designed to protect the republican design of American political institutions. (See this discussion of the emoluments clause at Heritage.org.)
In order to keep a check on the President, they adopted a Constitution for a republic—not a democracy—because just as they were fearful of creating a King, they were also afraid of mob rule. So they divided power at the federal level among three co-equal branches. And they created a federal system of dual sovereignty where the federal government and the states had different roles to play.
The impeachment clause (Article 1, Section 2, Clause 5) was designed to be a limiting mechanism to prevent a President from abusing the powers of his office. At the same time the founders made the process sufficiently difficult that it would not likely be used to prevent the President from using his lawful powers. In order to succeed, a vote to impeach requires a super-majority of 2/3rds of the House. Likewise, conviction in the Senate requires a tw0-thirds vote. Note—at the time the Constitution was adopted, Senators were not elected by direct popular vote, but were appointed at the state level.
At heart, the impeachment power is about politics, not the criminal law. Federal Office Holders are not allowed to accept gifts from foreign players without Congressional approval. Quid pro quo doesn’t matter. It isn’t allowed without Congressional approval. Period. Full stop. And it is clearly because of concern that foreign powers will seek to influence American policy by use of gifts and flattery. Moreover, the Founders were concerned with the harm that an errant politician could do to the society at large, particularly if he abused the powers of his office and violated the public trust.
Note that in the prohibitions against accepting gifts, and in the discussions in the Federalist there is no discussion of penalties. The only penalty specified in the Constitution is impeachment. That is because this is inherently a political matter, not a matter for the criminal law, at least in the first instance. The criminal law comes in later—after successful impeachment proceedings. In this respect it is worth noting that the requirements for a criminal conviction are tougher than for impeachment. A criminal conviction requires a unanimous jury rather than a two-thirds vote.
So I submit that it is reasonable to argue that an impeachable offense does not require a violation of the criminal law. But it does require an abuse of office and the public trust, or the infliction of great harm on the society at large—not merely a policy dispute. And in our Constitutional system, putting oneself under the influence of a foreign power is an egregious political offense.
Are we there yet with Mr. Trump?
No, at least not yet. But that is because all the facts are not yet known. When they are—and they will be—it is conceivable we could see a second Presidential impeachment in less than 20 years. The prospect of a Trump impeachment is no longer confined to the fantasies of the Resistance. Although not likely, it has become a very real possibility.