Impeachment and Constitutional Deliberation

The House Judiciary Committee has filed its long awaited lawsuit against Don McGahn, seeking declaratory and injunctive relief from the court with respect to McGahn’s refusal to appear before the committee to testify regarding his knowledge of matters described in the report of Special Counsel Robert S. Mueller III. Specifically, the committee is interested in matters such as “how President Trump used his official power to oust Special Counsel Mueller and end his investigation; to force then-Attorney General Jeff Sessions to transgress Department of Justice (DOJ) ethics rules to limit the scope of Mueller’s investigation; to demand that White House staff generate false accounts of the President’s conduct; and to influence witnesses not to cooperate with the investigation.” Complaint ¶ 2. The complaint repeatedly emphasizes that it needs this information in order to decide whether to recommend articles of impeachment against the president. See Complaint ¶¶ 1, 4, 10, 17, 19, 57, 61-62, 64, 95, 97, 100 & 105.

All of this is well and good. As we have discussed, McGahn is an important witness and there is no merit to DOJ’s claim that he is “absolutely immune” from testifying before Congress. The committee’s express invocation of the impeachment power further strengthens its claim for judicial relief and undermines what little persuasive value the OLC opinions on absolute immunity might otherwise have had.

It is important, however, not to conflate the committee’s litigation position and its constitutional responsibility regarding impeachment. The McGahn lawsuit is focused on substantiating specific allegations raised in the Mueller report, namely the obstruction of justice matters discussed in volume 2. See Complaint ¶ 1 (committee “is now determining whether to recommend articles of impeachment against the President based on the obstructive conduct described by the Special Counsel.”).

While the president’s conduct as described in volume 2 of the Mueller report clearly should be an element of any impeachment inquiry, it is questionable whether obstruction of justice alone can carry the weight of impeachment in this case. This is particularly true if one views obstruction as a specific statutory crime, rather than as a more colloquial term for President Trump’s implacable opposition to the Mueller investigation (or, for that matter, any other investigation he associates with the “deep state” or his political opponents).

For one thing, the special counsel declined to reach a conclusion as to whether Trump committed the crime of obstruction. Many believe he would have reached this conclusion had it not been for the OLC opinion prohibiting the indictment of a sitting president, but Mueller himself declined to substantiate this theory and it seems inadvisable to place much reliance on an unprovable hypothetical.

In addition, there are serious legal questions regarding whether the president’s exercise of his Article II powers, such as firing the FBI director or seeking to fire the special counsel, can constitute criminal obstruction. Professor Jack Goldsmith argues that “many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written.” This is a controversial position, but it is not a frivolous one. It is also not an issue likely to be settled in the course of an impeachment proceeding.

Finally, focusing on questions of criminal obstruction requires the committee to evaluate Trump’s state of mind. See Complaint ¶ 66 (“McGahn’s testimony would provide significant evidence of the President’s motivations for his actions.”). I am skeptical, however, that McGahn is going to be able to shed much light on the president’s motives. Other presidents (Nixon and Clinton) have attempted to obstruct legal investigations or proceedings, but they did so only when they felt they had no other choice. Trump’s words and actions in general, and specifically in connection with the Russia probe, appear to be visceral in nature and to have little connection to a rational calculation of the consequences. Perhaps this is a clever strategy on Trump’s part, but I expect McGahn is as perplexed as the rest of us.

This is by no means to suggest that Trump’s conduct is unimpeachable, so to speak. The constitutional standard of high crimes and misdemeanors is quite different than the criminal standard for obstruction of justice. Thus, Goldsmith observes that “[i]n combination with Trump’s other abuses of power over the past two and a half years, I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option.” The point here is that Congress’s task is more complicated than simply evaluating a handful of presidential actions to determine whether they satisfy the elements of criminal obstruction of justice. It must decide how to interpret and apply the constitutional standard of “high crimes and misdemeanors,” which is by design a more discretionary and less determinate function than that performed by a criminal court. See Neal Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Problems 169, 175-79 (2000). And it must do so in the context of Trump’s highly unusual behavior in office.

Now that the Judiciary Committee has come out of the impeachment closet, as it were, it should step back and take a broader look at this behavior. “Impeachment is a remedy for abuses of public office,” as Professor Keith Whittington has written:

But what counts as abuses that are sufficient to warrant an impeachment? The constitutional responsibility entrusted to Congress to make such assessments is intentionally flexible. The founders did not limit impeachments to criminal offenses or even necessarily to public misconduct. They did not try to anticipate all the ways that a future president might abuse the high duties of his office and render himself unfit to continue in office. Still, it is clear that the impeachment power was intended only to be used in exceptional circumstances.

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For purposes of impeachment, the correct question is not whether the president engaged in an indictable crime obstruction of justice. The question is whether he exploited the powers of his office in a manner that is inconsistent with his constitutional duties, and thus with the rule of law.

As Whittington notes, some of the president’s early maladministration might have been expected of a “political novice with few experienced advisors,” but “[t]he pattern of the president’s missteps . . . cannot be readily ignored, as they have reached the point that can no longer be chalked up to mere inexperience.”

He wrote this two years ago, by the way.

One year ago, Whittington again addressed the pattern of presidential misconduct, noting that “[i]t is the accumulation of instances of significant misconduct that might justify the impeachment and removal of President Trump rather than a single identifiable act of abuse of power that by itself demands the immediate truncation of the president’s term of office.” The Judiciary Committee therefore must think carefully about how to organize and present this evidence. Some of the president’s misbehavior may in isolation seem simply childish or poor manners, but more serious when considered in combination with many other instances of similar conduct. Other offenses might be serious, but perhaps not serious enough by themselves to warrant removal from office. Thus, for example, a Republican senator “might well think that if a president had brought his office into disrepute with contemptible rhetoric or if a president had egregiously abused his pardoning power, that the president should nonetheless be tolerated until the people had the opportunity to remove him at the next election.” But if faced with evidence of a “long train of abuses,” the same senator “could appropriately decide that such evils are not politically or constitutionally endurable.”

While there is a role for further investigation and evidence gathering, the committee’s most important task at this point is to deliberate on the facts that are already known and decide how they should be presented, if at all, in articles of impeachment. Does the president’s inflammatory rhetoric rise to the level of a high crime and misdemeanor? Should it be a separate article or part of a larger article which accuses the president of demeaning his office? Should the president be charged separately with obstruction of justice and or should that be subsumed within an article that charges him with violating the Take Care Clause and his constitutional oath?

These are not easy questions and the committee is dealing with a moving target. Consider that just in the past few weeks the president has (1) retweeted a conspiracy theory suggesting the Clintons were involved with the death of Jeffrey Epstein; (2) mocked a member of Congress whose home was broken into; (3) been rebuked by the House (including a few Republicans) for inflammatory comments about four female minority members of Congress; and (4) at least tentatively decided to commute the prison sentence of former Illinois Governor Rod Blagojevich. And the sheer volume of these incidents may mean that politicians, the media and the general public become increasingly desensitized to them, as David Priess and Margaret Taylor observe here.

Up to this point, the committee has been unable to directly address these issues because House leadership was preventing it from openly discussing impeachment. Will it now be able to deliberate seriously and soberly on these matters of constitutional gravity? Many will be skeptical, but there is some reason for optimism. See Mark Tushnet, “Evaluating Congressional Constitutional Interpretation,” in Congress and the Constitution 277-83 (N. Devins & K. Whittington, ed. 2005) (giving qualified praise for Congress’s constitutional performance during the Clinton impeachment). Time will tell.