James Comey is, by all objective accounts, a man of integrity, intelligence, and honor. Like all of us, he is imperfect. And like anyone serving the public at a high level, he has perhaps made judgments — in difficult and complicated, even untenable, situations — that are subject to legitimate criticism. No one questions the President’s power to remove him from his position as FBI Director. The question, rather, is whether it was appropriate under the circumstances to do so.
If the President’s removal of Director Comey was based on the President’s desire to influence or impede an investigation that he disfavors, and in which he could conceivably be implicated, that raises very serious, but also very complicated, legal questions. (Do not be distracted by the President’s claim that he is not under investigation; though he may not be the target of the investigation, one who is not the target can still become ensnared or implicated in an investigation. It is difficult to believe that investigators are not also looking — or will not eventually look — into the President’s role, what he knew, and when he knew it.)
Four questions arise: 1) does the criminal law apply to the President when he commits an act that might otherwise be criminal but that is done in the exercise of a constitutional function?; 2) assuming the criminal law would apply, can a sitting President be prosecuted while in office?; 3) assuming the President can be prosecuted while in office, would the Justice Department do so?; and 4) criminality and criminal process notwithstanding, could the president be impeached for his conduct?
I will leave specific responses to the first three questions for a subsequent post, though it is worth noting here that, as some may recall from the legal discussion surrounding the (Bill) Clinton scandals, there is some question as to whether a sitting President can be criminally prosecuted. Some respected constitutional scholars say no, criminal prosecution must wait until the President formally leaves office (and there is substantial support in constitutional history for this view). See, for example, Akhil Amar’s work here. Others say doing so is constitutionally permissible. But the question I want to next explore is this: if the President does something that is an abuse of his power, or a substantial violation of his presidential duties, or even violates the Constitution, but does not actually violate the criminal law, is impeachment available?
Lots of recent commentary has focused on 18 U.S.C. 1505, one of the federal obstruction of justice statutes. On its face, it looks like it applies to the President’s conduct. Problem is, federal prosecutors are instructed, based on decided cases, that an FBI investigation does not constitute a “proceeding” for purposes of this statute. See USAM CRM 1727. If the President is to be subject to an obstruction statute, it will have to be a different one, say, 18 U.S.C. 1512(c)(3) (but courts are split as to whether an FBI investigation is an “official proceeding” under this statute, and the statute requires that the person act “corruptly” — can the President be acting “corruptly” if he believes in good faith that his action was a legitimate exercise of constitutional power?). So, proof of criminality in these circumstances is tricky.
This leads to a discussion of impeachment. Does impeachment require the commission of a crime?
The President, according to Article II, section 4 of the Constitution, “shall be removed from office on impeachment for, and and conviction of, treason, bribery, or other high crimes and misdemeanors.” Treason and bribery are familiar as crimes (each has a well-established definition in criminal law). But “other high crimes and misdemeanors” remains vague. There is a fair amount of scholarship on impeachable offenses and I won’t endeavor to summarize it all here. But a couple of sources are noteworthy.
Raoul Berger’s terrific book, Impeachment: The Constitutional Problems, concludes that this phrase — “high crimes and misdemeanors” — was drawn not from the English criminal law but from the impeachment of the Earl of Suffolk in 1386. He explains that use of this standard was necessary because “the objects of impeachment were beyond ordinary criminal redress.” Whereas “misdemeanors” were private wrongs punishable by the state, “high crimes and misdemeanors” were political offenses, against the state. Consequently, according to Berger, high crimes and misdemeanors are not derived from ordinary criminal law, but are unique to the impeachment context.
Charles Black’s excellent Impeachment: A Handbook, attempts to clarify the standard a bit by further considering the relationship between criminal law and impeachable offenses. Black relies upon the ejusdem generis canon to evaluate how “high crimes and misdemeanors” could be like treason and bribery, but ultimately Black appears skeptical of a definition of “high crimes and misdemeanors” that would require actual criminality (though he concedes that most actual presidential misdeeds would also be crimes). He gives the following examples: a President announces that he will not appoint any Roman Catholic to any office. This violates the clear command of Article VI of the Constitution, but is it criminal? Or, suppose a President legally travels to a foreign country and conducts all business from there. He wouldn’t be committing a crime, but surely his “gross and wanton neglect of duty,” as Black describes it, would be impeachable. By the same token, merely committing a crime should not subject the President to impeachment, and Black gives a few examples on that ground, too. In short, the President need not commit a defined crime to be impeached, but even if he does, mere criminality is not necessarily impeachable.
There is, then, substantial historical and scholarly authority for the proposition that a President can be impeached for abuses of office that do not formally constitute criminal offenses.
The problem for this President’s critics, of course, is that — for now, at least — neither criminal prosecution nor impeachment seems likely.
As to prosecution, again, there is the threshold problem of whether any crime has been committed under an applicable statute; the constitutional questions of whether he was simply exercising a constitutional function, and whether it is even permissible to indict or criminally try a sitting President; and even if so, the question of whether Trump’s own Justice Department would do so (which is precisely why the claims for a special counsel have been increasing).
That leaves impeachment, and only the House of Representatives can impeach the President. Most Republicans in Congress have not exactly been profiles in courage when it comes to asserting their own prerogatives, defending the separation of powers, and resisting the charms of this President. Efforts to distance themselves from the President have been tepid and ambiguous. For now, congressional Republicans (generally) appear to be calculating one or both of the following: they need the President politically, and do not want to damage him; and/or, they fear the damage the President could do to them, with his Twitter account or otherwise. The President, I suspect, knows this, which might explain his brazen, middle-finger-held-high recounting of his interactions with, and firing of, Comey. He, too, calculates.
I do not contend here that President Trump has committed any offense, criminal or impeachable. But that is clearly where the public conversation over Comey’s firing is, and where it will continue to go. I thought some legal context might be helpful as we head — hopefully prudently — down each of those paths. And I will hope to have more to say on each. For now, I think much of how this conversation will proceed depends upon who the President selects to head the Bureau.