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.