The No Confidence Impeachment: Trump Opponents Seek Removal Without A High Crime Or Misdemeanor

 

 

From Congress to newsrooms to social media, a type of impeachment fever has taken hold. Various proposals have been put forward for removing Donald Trump from office, with reasons ranging from alleged “collusion” with Russians to the president’s response to Charlottesville. One poll shows support for impeachment at as much as 40 percent. Newsweek ran a headline proclaiming, “Trump Is Just Six Senate Votes Away From Impeachment,” and Slate has a running feature called “Today’s Impeach-O-Meter.”While such talk may be therapeutic for those still suffering post-election stress disorder, it is a dangerous course that could fundamentally alter our constitutional and political systems. Even if one were to agree with the litany of complaints against Trump, the only thing worse than Trump continuing in office would be his removal from it.

LPParliamentaryParties_listingThere is a mechanism under which a head of government can be removed midterm. Parliamentary systems, like Great Britain’s, allow for “no confidence” motions to remove prime ministers. Parliament can pass a resolution stating “That this House has no confidence in Her Majesty’s Government.” But that’s not our system, and it’s doubtful that the members of Congress calling for Trump’s impeachment would relish a parliamentary approach: When such a vote succeeds, the prime minister isn’t necessarily the only politician to go. If the existing members of parliament can’t form a new government in 14 days, the entire legislative body is dissolved pending a general election. And that’s leaving aside the fact that Trump is still more popular than Congress as a whole: In the Real Clear Politics polling average, his job approval rating is under 40 percent while Congress’s wallows at around 15 percent.

The Constitution’s framers were certainly familiar with votes of no confidence, but despite their general aim to limit the authority of the presidency, they opted for a different course. They saw a danger in presidents being impeached due to shifts in political support and insulated presidents from removal by limiting the basis for impeachment and demanding a high vote threshold for removal. There would be no impulse-buy removals under the Constitution. Instead, the House of Representatives would have to impeach and the Senate convict (by two-thirds vote) based on “Treason, Bribery, or other high Crimes or Misdemeanors.”

440px-StevecohenThe Framers were wise in this regard. Consider Rep. Steve Cohen’s (D-Tenn.) statement, in the wake of Charlottesville, explaining why he supports impeachment: “If the president can’t recognize the difference between these domestic terrorists and the people who oppose their anti-American attitudes, then he cannot defend us.” Cohen doesn’t articulate a high crime or misdemeanor, let alone prove one.  He appears willing to impeach Trump because the president is viewed as insufficiently opposed to far-right or racist groups. If that were the standard, any member of an opposition party could cite unacceptable views as the basis for removal from office. Cohen’s reasoning is no better than that of former congressman Kerry Bentivolio (R-Mich.), who was quoted in 2013 telling a constituent that if he “could write a bill” to impeach then-President Barack Obama, “it would be a dream come true.”

Though clearly farcical, the suggestion by USA Today’s Jill Lawrence that “Trump is doing an excellent impression of a president who desperately wishes to be impeached” — that his comportment in office is some sort of thinly veiled cry for help — obscures the gravity of what’s at stake with impeachment. Lowering the standard would fundamentally alter the presidency, potentially setting up future presidents to face impeachment inquiries or even removal whenever the political winds shifted against them.

President_Andrew_JohnsonEspecially alarming is the argument that, “Yes, Trump Could Be Impeached for Pro-Nazi Talk.” This week, the Daily Beast’s Michael Tomasky evaluated the impeachment of Andrew Johnson to demonstrate why some experts believe presidents can be impeached over purely “political disagreements” — more or less reducing impeachment to the equivalent of being voted off the island on an episode of “Survival: Beltway.” Johnson was a thoroughly obnoxious president who took office after the assassination of Abraham Lincoln. He was opposed by the Radical Republicans in Congress who sought to extend voting rights to freed slaves and limit the political power of former Confederates. Johnson was impeached by the House, but he was spared conviction (by one vote) in the Senate, which recognized, properly, that however valid opposition to the president was, in the end it amounted to a political disagreement. Had he been removed from office, it would have been an abuse of Congress’s power; and while abuses can happen, they remain abuse.

As the last lead counsel in an impeachment case — I defended U.S. District Judge Thomas Porteous in 2010 — even the theoretical revival of Johnson’s impeachment is chilling: There is no clear way to defend against having insufficient values. Tomasky quotes constitutional lawyer Bruce Fein, who floats the possibility that a president might be impeached for views demonstrated to be “sabotaging, not defending the Constitution — including its separation of powers, due process, and equal protection — by applauding the ideas or actions of tyrants from his bully pulpit.” But imagine what could happen if that were true. Any presidential remark deemed objectionable could be characterized as “sabotaging” constitutional values. Rather than requiring unconstitutional acts, we would impeach for unconstitutional thoughts, even though our Constitution’s standard certainly isn’t high thought crimes and misdemeanors.

225px-Bill_ClintonThis can seem weirdly incongruous, given the other presidential impeachment in our history: Bill Clinton was impeached for lying under oath about something relatively trivial; many view Trump as opposing fundamental American values. But Clinton deserved impeachment because he lied under oath. I was one of the experts who testified before Congress during Clinton’s impeachment hearings and, despite voting for Clinton, I maintained that perjury clearly fell within the standard regardless of the subject. Presidents don’t get to lie under oath any more than Congress gets to choose impeachment standards depending on the president. While this may be frustrating and inconvenient, there is no proof Trump has committed any crime or otherwise impeachable offense.

Impeaching a president on the grounds of high contempt or misbehaviors would leave the presidency weakened. Trump won’t be our last president and we shouldn’t count on making the presidency great again if we add a no confidence option to impeachment.

192 thoughts on “The No Confidence Impeachment: Trump Opponents Seek Removal Without A High Crime Or Misdemeanor

  1. […] In 1970, when Gerald Ford was still a member of the House of Representatives, he  said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be.”  It was a reckless and inaccurate statement.  On a very superficial level it is a political decision in the sense that it’s a decision that is ultimately made by politicians. However, that does not make the basis for decision purely political.  It is akin to saying that, since a priest can grant absolution on his own authority, sin is a discretionary pastoral question.  The Framers struggled to establish a standard and process to make impeachment both difficult and substantive.  They did not want a parliamentary system where impeachment was just a variation of a vote of no confidence as I discussed recently in a column. […]

  2. Turley’s nonsense is notable for the conspicuous absence of the high crime of obstruction of justice, Trump’s main (and explicitly stated) reason for firing Comey

    • dp, Comey served at the pleasure of the President, but, I understand what you are getting at. Unfortuantely for your argument Comey said the President was NOT under investigation for colluding with the Russians. Comey said and did a lot of other things that tell us he should have been fired a long time before, but a late firing isn’t obstruction of justice. Just for your edification Congress gave the President the power to appoint and dismiss the director of the FBI in 1968.

  3. Marky Mark and the Funky Bunch,

    “Methinks thou dost protest too much”

    Thanks, as always, for reading and I accept your ad hominem “macro-aggression’ as the concession of defeat it constitutes.

    Eschewing a world tour of the legal minutiae and as one of the 99.964% of the population that is not a lawyer, I’m gonna take a wild guess that being elected Sheriff requires one to enforce the law and stop bad guys. I’ll take another guess that the function of the judicial branch is not to weaken law enforcement and facilitate crime.

    I agree with you completely that the “imperial judiciary” is criminally out of control and the impeachment process must be enhanced and accelerated to keep pace with the egregious, persistent and burgeoning constitutional violations committed by that branch.

    Let me take a look around. Nope. It dudn’t look like a legal setting in here. This is the comments section of Professor’s Turley’s courtroom. Try to remember your decorum and etiquette. You, counselor, are out of order and verging on contempt.

  4. First, Trump is “sufficiently opposed” to the Neo Nazis and KKK. He’s said so repeatedly, condemned them repeatedly. If doing so hasn’t convinced his critics that he’s not a Klan member then he’s wasting his time addressing their wild accusations. Just like anyone who’s not a Liberal will waste vast amounts of time in any discussion arguing that they are not, in fact, Satan.

    Secondly, wanting to remove a President because, in effect, he is not Liberal enough, is contrary to our Democracy. In fact, it’s Fascist. As I’ve mentioned before, Liberal Fascism simply replaces “nationalism” with a rabid adherence to their global cause. Dissenters must be persecuted, prosecuted, and vilified.

    Sorry, Democrats. We live in a multi party state, with laws on how our President and other politicians are elected. I realize this is difficult for you who want a single Party state. I understand that some of you have actually fallen for the false logic that declared that if the KKK want free speech, and conservatives want free speech, then conservatives are clearly racist, and if half the country is conservative then half the country is racist. It’s hard to engage in critical thinking when educators from kindergarten to PhD have indoctrinated you to follow false logic and ad hominem.

    If the Liberals remove a President for not being Liberal enough, then they will have set a precedent. Why should conservatives let a duly elected Liberal stand in the White House? They won’t be conservative enough for them. If riots and looting and burning and “resist” is good for the Liberal cause, then it will be a precedent for the conservative Constitutional cause. I personally, would prefer we continue with our democracy and robust individual freedom. But they cannot lay a precedent and then blame others for following it.

    This is yet another attempt at a political coup for Democrats who refuse to accept the lawful results of our election process.

    • Karen – I think some of the RINOs are getting primaried. Certainly, Jeffy Flake is getting his a$$ handed to him at the polls and he is running against a weak candidate. Sheriff Joe has threatened to throw his hat into the ring.

    • First, resorting to a straw-man argument renders your argument ridiculous; no one has said that “conservatives” (whatever that label means here) are racists because they purportedly “want free speech.” Second, don’t look out that window, but it’s not just the Democrats who are seriously discussing impeachment of our clown prince. So, uh, check the facts outside of your little bubble.

      this is to sheltered karen

      • “First, resorting to a straw-man argument renders your argument ridiculous; no one has said that “conservatives” (whatever that label means here) are racists because they purportedly “want free speech.”

        “Mark, read Bray’s book and read what Antifa stands for before you descend into “intellectual gibberish”, Turely’s great phrase.

  5. I still think that The Donald daily violates the emolluments clause and also the rental agreement for his Washington, DC, hotel.

  6. Off topic but there is considerable misinformation about Hurricane Harvey and the role of global warming to be found earlier in this thread.

    A good introduction can be found in today’s Informed Comment, the Juan Cole blog.

  7. Prof. Turley,

    Is a deleterious, unconstitutional, “profiling” restriction on law enforcement, politically applied against Arpaio by a kangaroo court, more or less egregious than mayors and governors around the country obstructing enforcement of federal immigration laws and usurping the power of the federal government by setting immigration policy?

    Is “sanctuary” status a case of “municipal/state overreach?”
    ______________

    CBS News –

    “Illinois Republican Gov. Bruce Rauner signed legislation on Monday that would limit cooperation with federal immigration officials, angering members of his own party who say the law creates a “sanctuary state.”

    • Of course you are able to hold that the federal district court’s ruling against angry joe was “unconstitutional” because you went to law school, passed the bar, became a successful and respected member of the bar, and capped off that sterling career by being appointed to the federal circuit court of appeals. Amiright?

      This is to laughable georgie

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