Can the President commit a crime or an impeachable offense even when exercising constitutional power?

America’s civic education continues.  Although much of what we have endured recently is not particularly good news for the Nation, it should at least be heartening that nearly 20 million people watched the (underwhelming) Comey hearing.  If only that many Americans took such an interest in congressional hearings more generally.

We have also heard lately about the theory of the unitary executive, which some observers have used to explain why the President’s actions with respect to James Comey are neither criminal nor otherwise improper.    Former Speaker Newt Gingrich asserted something like this recently when he said that the President “cannot obstruct justice,” citing the fact that the President is the chief executive  (as others have duly noted, such as in the linked article from The Hill, Gingrich voted to impeach President Clinton on obstruction of justice grounds).  Gingrich’s quote calls to mind President Nixon’s 1977 assertion to Sir David Frost that, “when the President does it, that means that it is not illegal.”

At its core, the unitary executive posits both an obvious textual notion (that the executive power is vested in “a” president) and a structural one (that the president enjoys all executive power and thus controls anyone who assists him in exercising such power).  But the unitary executive model does not really answer two critical questions that have been raised by the Trump-Comey saga: first, when, if ever, does the exercise of constitutional power by the president amount to a punishable crime?; and second, at what point does the exercise of a constitutional power constitute an abuse of such power?  These two questions are at the heart of a distinction that has become lost in the debate over criminality, and that is the distinction between violations of the existing federal criminal law and the political world of impeachable offenses (see my earlier post here).

Because the President has the power to “take care that the laws be faithfully executed,” he has the power to determine who will be prosecuted and investigated.  Therefore, as some have argued, the President had the authority to instruct Comey not to continue pursuing former National Security Advisor Mike Flynn, and doing so cannot be obstruction of justice.  And, the argument continues, because the President has the appointment power, as well as the Take Care Clause power, firing the FBI Director also cannot be obstruction.  I have before elaborated (in the above linked post) upon the obstruction statutes and explained why I think reliance on those statutes is problematic in this case.  But let’s set aside the applicability of the statutes as a matter of statutory interpretation and federal prosecutorial practice, and focus instead upon the question of how far the President’s power extends.  Do his motives matter when exercising his powers?

Suppose, as a hypothetical example, that the President gathered the FBI Director and Attorney General in the Oval Office and gave the following order, pursuant to his Take Care Clause powers: in an effort to root out terrorists, the FBI shall enter and search, without a warrant and without any particularized suspicion, the home of any Muslim living in the United States.  The FBI and AG agree and the order is carried out.  Such action would implicate not just the Fourth Amendment, but also the federal civil rights statute relating to willful deprivations of rights, 18 U.S.C. 242, as well as the civil rights conspiracy statute.  18 U.S.C. 241.  Is the President immune from subsequent criminal prosecution merely because he has the power to direct federal investigations and prosecutions?  Could the President be impeached for issuing such an order, on the ground that even though he has the power to direct investigations, this was a serious abuse of that power?

Let’s take another example.  Suppose the President agrees with a representative of Defendant D that the President will order the Justice Department not to prosecute D for a crime that D has committed.  In exchange for that official act, the President accepts from D one million dollars.  Is this conduct bribery, notwithstanding the fact that the official act for which there is a quid pro quo is a constitutional power vested in the President?  Is it impeachable? (remember that the Impeachment Clause of Article II, section 3 specifically lists bribery as impeachable).

Or, to take the example of another power vested solely in the President — the power to grant reprieves and pardons for offenses against the United States — suppose the President granted a pardon to D in exchange for a payment of one million dollars.  Is the President’s motive for the official act of granting the pardon irrelevant simply because the corrupt motive, and the quid pro quo, are tied to the exercise of a constitutional power vested in the President?

I ask these questions because I think it is important to note that even if we accept the unitary executive model, and even if we believe that directing criminal investigations and prosecutions is a core executive function over which the president should have control, we can still acknowledge that what motivates a President in carrying out that function could still have legal significance.  In my bribery examples, for instance, the power of ordering the DOJ not to prosecute, or the power of actually granting the pardon, are not, without more, the problem; the problem is that those exercises of power were intended to facilitate bribery.  Indeed, because bribery requires an official act, it seems clear from its inclusion in the Impeachment Clause that the Framers understood that a President can still be held legally accountable even when the offense arises from an exercise of official power.

It may very well be that President Trump has committed neither a crime nor an impeachable offense.  But whether he has committed either cannot, I think, depend merely upon whether his action was based on the exercise of a constitutional power.  Perhaps the President’s state of mind matters.  After all, implicit in an “abuse of power” is the existence of an official power that can otherwise be legitimately used.

Which leads to a final point about the distinction between criminality and impeachment.  Much of the attention will fall upon the Special Counsel.  But the congressional investigations here are also important because, unlike the Special Counsel’s investigation (which is criminal in nature), the Congress can gather facts and evidence regarding abuses of power that may not meet the defined elements of a crime or be prosecutable.  The congressional investigative power is at once broader and more narrow than the Special Counsel’s work — Congress cannot criminally prosecute the President, but it can engage in oversight of the executive, which includes the power to impeach and convict.  That distinction is critical if one assumes that a sitting President cannot be criminally prosecuted.  Problem is, would a Republican Congress ever allow impeachment to proceed?  To answer that, we need to take a deeper dive into the existing dynamics of a Senator or Representative’s institutional loyalty to Congress, rather than to the President or the Party.


Could the President assert executive privilege to block Comey’s Senate testimony?

Now that James Comey is slated to testify before the Senate Intelligence Committee next week, there has been some speculation as to whether President Trump will try to block Comey’s testimony with an assertion of executive privilege.  To be precise, such an assertion would only apply to testimony involving presidential communications; it would not cover any and all aspects of Comey’s testimony about his work as FBI director, so “blocking” is not entirely accurate.  Though I believe in a robust executive privilege where appropriate, I am skeptical of the use of executive privilege under these circumstances.  Still, I think it is fair to say that we are entering (mostly) uncharted waters next week.

The leading case on executive privilege is United States v. Nixon.  Although it recognized the constitutional dimensions of executive privilege, the Court ultimately found that the privilege is not absolute and rejected President Nixon’s assertion of the privilege.  This, of course, set the stage for Nixon’s resignation, after the House Judiciary Committee had adopted articles of impeachment.  The reasons for the Court’s ultimate decision are instructive.  According to the unanimous opinion by Chief Justice Burger, “when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.”  The Court then stated, “[a]bsent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in the confidentiality of Presidential communications is significantly diminished” by requiring in camera review by a federal district court.

Much of the Nixon case proceeds from there to explain why a generalized assertion of presidential confidentiality should yield to the demands of justice in a criminal investigation.  The privilege is rooted in the separation of powers and should ordinarily be accorded deference, but, again, is not absolute.  There is also, the Court acknowledged, constitutional dimension to the need for evidence in criminal cases.  Consequently, the Court held, where the claim of privilege is merely generalized (not specific to a particular military, diplomatic, or national security secret), “it cannot prevail over the demands of due process of law in the fair administration of criminal justice.  The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

Nixon’s application to the Comey testimony is therefore imperfect, but useful.  Two dimensions of executive privilege, as understood in Nixon, are important in relation to the upcoming Comey testimony: first, the nature of the proceeding; and second, the subject matter underlying a claim of privilege.

Nixon is really about the role of the privilege in criminal cases.  Comey is testifying in a congressional investigation, not a criminal one.  It is not clear precisely how Nixon is to apply in the congressional committee setting.  Because of the constitutional dimension of executive privilege that derives from the separation of powers, and the need to not simply protect the prerogatives of the presidency but also to protect against Congress, to quote Madison in Federalist No. 48, “drawing all power into its impetuous vortex,” there is a natural concern about compelling the disclosure of presidential communications to the legislative branch.

And yet, while executive privilege is constitutionally based, so is Congress’s power to investigate.  Congress has institutional prerogatives, too.  Claims of executive privilege therefore have often conflicted with claims about the need for information in a congressional inquiry; the implications for the separation of powers are obvious.  These conflicts are normally handled through a process of mutual accommodation and compromise by the legislative and executive branches.  Judicial review in such situations is not unheard of, but is rare.  And the Supreme Court has never had occasion to address the matter specifically.

Still, the relationship between this particular congressional investigation and the existing criminal investigation being conducted by the Special Counsel is undeniable, and likely close.  Moreover, although the congressional investigative setting is not strictly criminal, it can display attributes that look much like a criminal inquiry.  Congressional committees must respect legitimate invocations of the privilege against compelled self-incrimination; can grant immunity to witnesses; and have even referred individuals for criminal prosecution.  There is often a Congress-as-Prosecutor quality to congressional investigation and oversight, even though Congress lacks any formal criminal prosecution powers (even inherent contempt is not strictly criminal, though it looks the part).

So while it is tempting to distinguish Nixon by relying upon the formal difference between a criminal proceeding and a congressional investigative hearing (and there is a difference), the nature of this particular hearing and its connection to an ongoing criminal probe in the executive branch suggests that this scenario may be more like Nixon than it first appears.  Nevertheless, there is something to the notion that a claim of executive privilege should be taken quite seriously when the legislative branch is seeking to pierce the deliberative processes of the presidency.

This brings us to subject matter.  To make any assertion of the privilege palatable, the President would likely have to be very specific about the subject matter of his claim — he would have to assert that some military, diplomatic, or national security secret would be divulged as a result of Comey’s testimony, or, at a minimum, that the testimony relates to the decision-making functions of the presidency.  An assertion of privilege is also complicated here by the fact that the President has spoken openly and publicly about his private conversations with Comey.  This also raises the question of whether the President has waived any claim of privilege because he spoke publicly on the subject matter (I personally think this is a dubious argument as it has been couched by some, though it is a stronger argument with respect to testimony about very specific subjects; in other words, public statements about one subject would not necessarily serve as a waiver with respect to all conversations with Comey).

But waiver is not the only concern with respect to those public statements.  Rather, another major concern is that the President has implicated Comey’s own credibility (which Comey should have the right to defend), and has made statements that vaguely suggest, if not criminality, at least the possibility that the President has failed to “take care that the laws be faithfully executed,” as required by Article II.  That is a subject worthy of congressional oversight and inquiry.  Nixon’s concern about an undifferentiated claim of confidentiality conflicting with “other values” therefore seems useful in this context, given what we know about the need for information in this particular congressional investigation and the need to explore the veracity and implications of the President’s own public comments on the matter.

As a practical matter, Comey is likely to prefer to keep his testimony narrow, so as not to compromise the Special Counsel’s investigation.  But to the extent that it could cover his communications with the President, it remains unclear whether the President will attempt to intervene with a claim of executive privilege.  I suspect that doing so would be politically unwise, further contributing to an already damaging “what-is-the-Trump-Administration-hiding-now?” narrative.  Legally, the question is more complicated.  But if the Nixon decision is an authoritative guide in this situation, then that decision, along with the rule of law concerns that animate it, likely militates against recognizing the privilege here, unless the President can show something more than a mere general interest in confidentiality.

Criminality and impeachment after the Comey firing

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.

Private fraud as an impeachable offense?

The Constitution permits impeachment of the President for “treason, bribery, or other high crimes and misdemeanors.”  Gerard Magliocca has a terrifically interesting post up at CoOp, asking the following question: is fraud an impeachable offense?  The point of the post is to question whether, if Donald Trump is found liable for civil fraud after being elected President, he could be impeached and removed from office.  Magliocca’s tentative answer is “yes.”  He argues that if the fraud is sufficiently serious, then it should qualify as a “high crime or misdemeanor.”

Magliocca’s argument is worth taking seriously.  That is especially true if one believes that impeachment should be available when the president’s conduct brings dishonor to the office in a way that undermines public trust and confidence in him.  But my admittedly quick but tentative answer is “no,” the alleged private fraud here would not be impeachable.

Let’s set aside for the moment the question of whether the President may be impeached for conduct that occurred as a private citizen before he became President (Magliocca does not deal with that problem, though I think it is worth considering, particularly in light of Hamilton’s observation in Federalist 65 that impeachment proceeds from the “conduct of public men,” or violation “of some public trust,” an observation that Justice Story also made later).  My bigger concern for now is that fraud, of the kind that Trump is claimed to have perpetrated, is not an offense against the state nor an official act of misconduct or malfeasance that undermines public trust and confidence in the officeholder.  There are other reasons, too, but for now I want to focus on this argument.  And again, these are just a few quick thoughts.  I may have more to say on this after further research.  But taking Hamilton – and others like Charles Black and Raoul Berger, both of whom wrote impressively about impeachment – as a guide, one credible view is that the offense must be “political” in nature, in the sense that it harms the institutions of the government.

So one way of thinking about the meaning of the Impeachment Clause of Article II is that, because it identifies treason, bribery, or “other” high crimes and misdemeanors, the impeachable offense, if not treason or bribery, must at least be like or in the same class as those offenses.  And treason and bribery are both serious crimes against the state.  Notably, when the House impeached Bill Clinton, it did so on the grounds of perjury and obstruction of justice – both, also, crimes against the state.  This, as Black wrote, is a kind of ejusdem generis approach to the list of impeachable offenses.

There are, of course, serious grounds for objecting to the claim that an impeachable offense must be a crime, even one against the state.  Black dealt with this problem comprehensively, taking a broader view of the ejusdem generis canon as applied to treason and bribery.  After all, this would mean that if a president committed a murder of a private citizen, or a rape, or abused a child, these would not be impeachable offenses because they are not crimes against the state.  Of course, one response to this is that impeachment is not a means of replacing criminal prosecution.  A president could still be criminally prosecuted (though it is unclear whether this could happen while he remained in office) for his crimes, whether or not he can be impeached for them.

But another, more fatal, consequence of limiting impeachable offenses to crimes against the state would be that conduct that is not criminal (such as civil fraud, though some fraud may also be criminal) would also not be impeachable.  Berger has more to say on the history related to this phrase, but it appears that the phrase “high crimes and misdemeanors,” as originally understood, could refer to conduct that is not an indictable “crime.”  In other words, some serious crimes are impeachable offenses and some are not, and not all impeachable offenses are indictable crimes.

Perhaps the better, broader view, then – and the one that accords with the understanding offered by Black (and, somewhat less clearly, Berger) and, I would argue, Hamilton – includes a crime against the state, as well as other serious (not petty) misconduct or malfeasance in office that harms the institutions or processes of government and undermines public confidence or trust in the officeholder.  And impeachment practice has been consistent with this idea.

For example, when Andrew Johnson was impeached, it was for abusing his power by violating the Tenure of Office Act (which was later held unconstitutional).  According to the list compiled by the FJC, in 1873 Judge Mark Delahay was impeached for intoxication on the bench.  Judge John Pickering was impeached on similar grounds (including mental instability) in 1803.  In the modern era of impeachment, the grounds for impeachment have almost always been crimes against the state (e.g., bribery, tax evasion, obstruction of justice).  The one possible exception to this was Judge Samuel Kent, who was impeached in 2009, but who resigned before the Senate could try him.  Some of the grounds for his impeachment were plainly crimes against the state – false statements and obstructing an official proceeding – but he was also impeached on grounds of sexual assault.  Those listed sexual assault victims, though, were both federal employees, and the articles of impeachment specifically referenced this fact.  This is important, because it connects otherwise private conduct to his office and the judiciary as a public institution.  So in practice, private conduct unconnected to one’s office or to the processes or institutions of government has apparently not been used as a basis for impeachment.

Clearly, defrauding the United States would be an impeachable offense, as it would constitute a serious crime against the state.  And perhaps defrauding a private person while serving as president might also qualify, as it could constitute serious misconduct or malfeasance if office that undermines public trust in the officeholder.  But defrauding a private person before taking office?  That, I think, is a much tougher sell.  Still, consistent with Magliocca’s suggestion, you can get there if you interpret Article II as allowing impeachment for any serious misconduct – before or after taking office, public or private – that significantly undermines public trust or confidence in the president and that brings dishonor to the office.  If that’s the standard (though I am doubtful of that), then the claims against Trump, if proven, would likely qualify.