The House Has A Duty To Impeach If They Find High Crimes and Misdemeanors By Trump

Below is my column in USA Today on the recent statements by various Democratic leaders that they are unlikely to pursue impeachment because they do not have the votes in the Senate to convict. While many members pushed the impeachment angle during the campaign, there was a shift on the issue after the Democrats took office. Almost immediately after the election, senior Democrats changed course and began to dismiss calls for impeachment as “fruitless” and a distraction. Rep. Eleanor Holmes Norton declared impeachment to be “a useless waste of energy” and asked “Why would we go down the impeachment road when we cannot get it through the Senate?” 

I have repeatedly said that I do not see the strong foundation for an impeachment against Trump. However, these comments raise a more fundamental question about how members should approach their duties under Article I irrespective of the President. Members often pull a bait-and-switch with gullible voters, but they should not manufacture a new constitutional standard. If they truly believe that any president has committed high crimes and misdemeanors, they have a sworn duty to vote for impeachment.

Here is the column:

With special counsel Robert Mueller’s report on the Trump team’s ties to Russia expected in a matter of weeks, impeachment is a hot topic in Washington despite obvious efforts by some Democratic leaders to tamp down such talk. While columnists and many voters view the impeachment of President Donald Trump as “inevitable” now that Democrats control the House, the one holdout group appears to be Democratic leaders themselves.

Ever since the election, senior Democrats have been raising doubts about the value and impact of an impeachment process. As Rep. Adam Schiff, now chairman of the House Intelligence Committee, put it this month on CNN: “If the Republican senators, some of them, are not on board, then all you have is a failed impeachment, and I don’t see how that benefits the country.” 

While I continue to question the basis for an impeachment on the evidence available at this point, Democratic leaders are advancing a flawed interpretation to avoid their responsibilities under Article I of the Constitution. If they believe that Trump has committed impeachable offenses, they should impeach him, regardless of whether their counterparts in the Senate will fulfill their own sworn duties in a trial.

Democrats won the House last fall amid expectations among many voters that they would deliver rigorous oversight, up to and including impeachment. I disagreed with much of the campaign-season impeachment talk by advocates such as California billionaire and activist Tom Steyer and Rep. Maxine Waters, D-Calif. Some party leaders now clearly view impeachment as too risky a move heading into the 2020 election and prefer a Trump administration in free fall to a rising Pence administration. They are scrambling to find a way of supporting impeachment without actually impeaching Trump.

The responsibility for such an effort will fall primarily on the new chair of the Judiciary Committee, Rep. Jerry Nadler of New York. He is an ideal choice for the position: smart, seasoned and serious. However, Nadler drew a curious distinction last month on CNN’s “State of the Union” news show: “You don’t necessarily launch an impeachment against the president because he committed an impeachable offense. … An impeachment is an attempt to, in effect, overturn or change the result of the last election. And you should do it only for very serious situations.”

House Democrats can’t take the easy way out

I believe that the Framers viewed any impeachable act as a “serious situation.” When I testified during the Clinton impeachment hearings on the constitutional standard, I argued that lying under oath was clearly an impeachable offense. Despite my voting for Clinton and the testimony of other experts that lying about a sexual affairs was clearly not impeachable conduct, Clinton lied under oath while in office and the subject matter, in my view, was immaterial.

(A federal judge later found that Clinton committed perjury, a crime for which he was never charged despite thousands of Americans going to jail for the same offense.) The Democrats (and many experts) at the time tied themselves into knots to find an excuse for not voting to impeach. They were wrong then and they are wrong now in seeking an easy way out of Article I.

Under Article I, Section 2, Clause 5, the House holds “the sole power of impeachment.”

The standard itself is found in Article II, which says a president “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

That’s “shall,” not “may, if convenient.” It is certainly true that House members, like a jury, are free to render their decisions as they feel proper, and that votes cannot be reviewed by a court. However, like jurors, members are expected to adhere to the standard laid out in Article II, which they swear to uphold with the rest of Constitution as a condition of taking their seats in Congress.

There is a reason for the mandatory language. Framers expected members to do their duties when faced with impeachable offenses. For House members, that duty is to impeach regardless if they believe that their Senate counterparts will be faithful to their oaths. This is not a version of “the prisoner’s dilemma,” where the two houses try to guess the other’s intentions as a condition for their own actions. The House is expected to act, to declare conduct as a high crime and misdemeanor when it is a high crime and misdemeanor. The decision is about the legal gravity of the act, not the political conditions of the vote.

Republican senators might uphold their oaths

During the Clinton administration, Democrats engaged in a form of “jury nullification,” in which they agreed that Clinton lied under oath but elected to ignore that crime by a president in office. Schiff’s approach would repeat the mistake by ignoring alleged criminal acts because the accused might not be convicted. Consider the impact on our legal system if grand juries adopted such a standard and refused to indict because they believed that a jury would likely deadlock. There is a value for declaring an offense to be a crime, or in this case an impeachable offense, regardless of the outcome at trial.

It is also wrong to assume that Republican senators will clearly violate their oaths. During the impeachment of President Andrew Johnson in 1868, multiple senators effectively ended their careers to vote to acquit the unpopular president because they swore a duty not to him but to the Constitution.

Nadler is right that some of the alleged conduct, if proven, could amount to impeachable offenses. Yet there are still major questions that weigh heavily on that question, including acts taken before Trump became president and serious questions of what constitutes obstruction or conspiracy. However, there should be no question of what should be done if such crimes are proven to the satisfaction of the House.

There is a Confucian saying that “the beginning of wisdom is to call things by their proper name.” Under our Constitution, the wisdom starts with the House in calling certain offenses “high crimes and misdemeanors.” Call it your duty. Call it constitutional Confucianism, if you wish. Just call it for what it is.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors, was lead defense counsel in the last Senate impeachment trial and gave expert testimony to Congress during the Clinton administration on the constitutional standard for impeachment. Follow him on Twitter: @JonathanTurley

90 thoughts on “The House Has A Duty To Impeach If They Find High Crimes and Misdemeanors By Trump”

  1. President Trump is doing God`s will with SCOTUS, lower courts, Embassy to Jerusalem , Christian/religious Liberty, most pro life President ever

    1. I’m so glad that you have taken on the duty of “arbiter of God’s will”, Scott!

      Unfortunately that goes against all of the Jude’s-Christian God manuals. Leave the judgement to the team upstairs.

      Donald J Trump is the epitome of everything we (hopefully) teach our children NOT to be. I don’t understand how anyone can say that DJT is doing “God’s work”. How do you know what “God’s work”is, Scott?

      Seriously.

      I need some of those drugs that you’re obviously ingesting….now.

      Especially after reading the commenters on this blog.

      When did Jonathan Turley become an icon of white trash ignorance and idiocy?

      Bless all of y’all’s cold, intolerant, and hateful hearts…

      especially YOU, Scott!

  2. 1. Abraham Lincoln usurped the power of the legislative branch and started a war of aggression on foreign soil without a congressional declaration against a sovereign foreign country formed after the eminently constitutional secession of the Confederate States of America.

    2. Abraham Lincoln illegally usurped the power of the legislative branch and confiscated private property.

    3. Abraham Lincoln illegally usurped the power of the legislative branch and arbitrarily suspended Habeas Corpus.
    ___________________________________________________________________________________

    1. Obama opened a pseudonymous account to exchange illegal e-mail with Hillary Clinton.

    2. Obama was complicit with Hillary Clinton in using illegal e-mail and an illegal server.

    3. Obama was complicit with Hillary Clinton is mishandling classified material.

    4. Obama committed an egregious abuse of power by deploying the IRS against political opponents during a presidential election.

    1. Professor Turley did not state whether the Congress should have impeached the two manifestly criminal occupants of the high office of President, Lincoln and Obama. Is that a “double standard,” hypocrisy or anemic deceit?

      1. “America: love it or leave it.”

        That is right. Take note illegals. Even Anon is telling those that are willing to break the law, throw stones at border officials, etc. to leave America.

      2. Typically, I eschew doing battle with unarmed opponents but I’ll give this one a go.

        Actually READ the Constitution.

        America IS its Constitution.

        “Crazy Abe” Lincoln egregiously and murderously violated the Constitution. The Constitution provides total freedom to individuals and a free market remedy for every concern. “Crazy Abe” disagreed with and nullified the Constitution which is quintessentially treasonous and anti-American.

        Opponents of slavery (a 234 year-old British/American institution) of which there were many, had available the free market tools of advocacy, boycotts, divestiture, etc. “Crazy Abe” nullified the Constitution and erroneously chose violence, brute force of arms, tyranny and oppression.

        The Constitution: Love it or leave it.

  3. It was, by definition, a crime of high office for the immutably ineligible Obama to run for the office of president. Obama may be a “citizen” and eligible for Congress or the Senate, but Obama will never be a “natural born citizen” and Obama will never be eligible to be president.

    A “citizen” may be born of one parent who is a citizen or may be naturalized. A “natural born citizen” is distinct in the Constitution from “citizen” and must be born of two parents who are citizens and must have a father who is a citizen. The definition is available to all as it was available to the American Founders and Framers, in the legal text and reference of the era, the Law of Nations, 1758.

  4. During Watergate the Republicans in the Senate supported Nixon and would not have voted to convict until the tapes showed the “smoking gun”. They then changed their collective minds and told Nixon to resign or he would be found guilty. Today’s Senate Republicans might also change their minds if enough evidence is presented. The House should do its Constitutional duty and file impeachment charges if that’s where the evidence goes. Neglecting your own duty because you think you know that others won’t is still neglect of duty on your part.

    1. “Today’s Senate Republicans might also change their minds if enough evidence is presented.”

      Betty, though it slips your mind, first the crime is defined, then good evidence is obtained and then one considers impeachment. To date we haven’t heard the crime the President committed and despite years of investigation we haven’t seen the evidence.

      If you think differently define the crime and present the evidence.

  5. The Democrats won’t do it because they know Trump operates on the belief that the best defense is a good offense and they are not willing to find out what Trump might have in store for them if they choose to go the impeachment route without evidence of an impeachable offense to back it up. The Dems need more than “we can’t stand the guy”…

    Nancy Pelosi tested Trump with her petty ‘suggestion that he reschedule’ his SOTU, and she found out that Trump will indeed play every card you give him. You hand him a petty move card, he will see you and raise you one. It was pretty funny to see Nancy Pelosi and Adam Schiff driving around the block on their bus in the hopes of avoiding the press waiting to get their reactions to Trump’s letter ‘suggesting they reschedule’ their junket and stay in town to hammer out a compromise and get the government reopened.

  6. Let’s go after the extremely easy low-hanging fruit first! The George W. Bush Administration and GOP Congress constructed the lawless “foundation” that Trump merely exploited – much of it legally. Bush & Friends overturned over 200 years of American history legal precedent. The Bushies violated the FISA Act – the one and only legal path a president can follow. They were committing felony-level warrantless wiretapping about 6 months BEFORE 9/11when no wartime emergency existed (it’s illegal during wartime also). They destroyed America’s reputation in the world using torture, locking and detaining people without charge, trial or guilty verdict. They destroyed the Geneva Conventions. High crimes & Misdemeanors!

    1. Personally I think it would be more prudent to go after the fruits that pose the greatest, most imminent threat to the Constitution and American Citizens.

  7. If the House has a duty to impeach then should they not clean out their own stables first and first impeach or at least refuse to seat their own who are openly guilty of high crimes and misdemeanors against The Constitution?

    Conducting a revolt against it since 1909 -High Crimes

    Taking the Oath and violating it in the taking – High Crime

    Administering the Oath to others unworthy? – Misdemeanors.

    1. Agreed – it would be impossible for the dems to have the high ground at this point. I agree with the spirit of our law as well, but what you have laid out, Jon, relies on the presumption that everyone is being ethical – they aren’t. Unless the dems reform themselves, they are going to be very bad for everyone until they do. It’s that simple. I’m of ge opinion that a Trump is a damn sight better than subjugating ourselves to the liberal notion of ‘freedom’.

    2. Agreed – it would be impossible for the dems to have the high ground at this point. I agree with the spirit of our law as well, but what you have laid out, Jon, relies on the presumption that everyone is being ethical – they aren’t. Unless the dems reform themselves, they are going to be very bad for everyone until they do. It’s that simple. I’m of ge opinion that a Trump is a damn sight better than subjugating ourselves to the liberal notion of ‘freedom’.

      1. James

        You might have heard or read that many people in this country – especially the oligarchs of that time – believed we should have been allies WITH Hitler and fought AGAINST the Soviet Union. Henry Ford & Prescott Bush made a lot of money doing business with Adolph & Company.

        Trump is the authoritarian president that many of the 1% and their supporters have longed for.

        1. Henry Ford & Prescott Bush made a lot of money doing business with Adolph & Company.

          The nonsense about Bush has been debunked time and time over.

          1. Brown Brothers Harriman, where Prescott was an investment banker, was a lender and base in the US for Fritz Thyssen who helped rearm Germany. So that was strictly lawful business at the time. But debunked? Not so sure the notion is entirely merit-less.

            It ended up being lucky that the investment bankers were tight with Germans before the war, when the investment banker organized OSS launched operation paperclip to capture 1500 of the best german minds in science and other endeavors and deny them to the soviets.

            investment bankers are powerful force multipliers, best to have some one your side!

        2. People in our country are permitted to make ignorant statements without knowing what they are talking about. They can even make those statements without proof or any ability to demonstrate the statement to be true. Ignorance makes people misunderunderstand the world around them.

          Let me provide an example with a quote from someone we all know: “You can easily understand how that within a few years Hitler will emerge from the hatred that surrounds him now as one of the most significant figures who ever lived,”

          What does this quote mean?

          The ignorant will draw their conclusions to meet their expectations..

          The quote is from 1945, JFK.

  8. Democrats want to commit political suicide by TDS, I wish they would save the taxpayers a little time and money and just put on saffron robes, light some incense and immolate themselves on the House Floor before flower covered gold statues of Obama, Soros and Marx instead of this thinly veiled, very costly Night At The Opera/Day at the Races style power grab.
    Democrats in Congress are so completely consumed by their unhinged hate and rage that they’re completely blind to how they look to the People they have a duty to serve. Of course everybody knows what the American People think and want is of little consideration to Democrats, but they may want to check in from time to time on the consequences of ignoring them. The view from the “cheap seats” on all political sides looks the same from all sides. The only difference is one side celebrates that view as a victory on the path to domination and one side sees it as a threat to themselves, their way of life, and their very future that needs to be neutralized.
    View of the People in the Cheap Seats.
    Peoples take one.
    Impeachment is not about whether Trump is guilty or not. Impeachment is not about Trump at all. Impeachment is the Democrats way of punishing those American Citizens who had the unmitigated gall to actually exercise their Constitutional Rights and defy orders from Obama on high to install his chosen sucessor Hillary.
    Peoples take two.
    Impeachnent is the Democrats nullification of the rogue actions of those renegade Citizens and the Democrats warning to them to never do it again, or else.
    Peoples take three.
    Impeachment is the Democrats in place back up plan in case of loss. Impeachment will seize power from the hands of American Citizens Democrats have branded evil racist morons too stupid to know what’s good for them and not worthy of a chance to have a say, even if they do know what they want and are Constitutionally entitled to it. This is crystal clear from antics like Tlaibs jihadist “Mother F***ker Fatwa” and the Democrats giddy ginning up to run the secession table with their Trump/Pence 2fer special. Dems have already locked their moderate members in solitary and are busily printing invitations to Queen Nancy’s Coronation while firing the Officially Licensed Commemorative Mugs and display Plates for distribution to the DC souvenirs stands and street vendors.
    Peoples take four.
    Impeachment of Trump is really the Democrats mechinisn of stripping American Citizens of their Constitutional Rights and sending them to reeducation camp to learn that those Constitutional BirthRights they thought they had to participate in government as the consenting party are only valid if the government consents to their consent.
    Peoples take five.
    Impeachment of Trump is the Democrats program of systematic desensitization of the American People to a two tiered justice system, and they are turning the heat under the frog boiling pot up to HI.
    Peoples take six.
    Impeachment of Trump is the Democrat preview of the streamlined New American Justice System for all American Citizens, coming soon to a courthouse near you. Only one law, one step due process, one piece of evidence, one prosecution question and one witness is required for conviction, and, by the way, that witness is you.
    “Are you now or have you ever been an American Citizen exercising Your Constitutional Rights?”
    .
    The Lefitst Democrats know how the dismantlement game is played. They’ve been refining the playbook for years, tweeking and modifying and applying what leftists around the world have learned from practical applications on millions of people to the updated strategy. The whole Impeach Trump bandwagon is nothing new in subversive politics. What is new is the Place and Time and People they are parading that bandwagon before.
    It’s one thing to overthrow with Fiat corruption, the government of a country where Rights impoverished People are already subjugated, suffering, and desperately looking for a way out of Hell.
    It’s quite another to overthrow a country that exists because an extraordinarily diverse group of oppressed men and women chose to take power over their own lives back from their tyrannical oppressors, and forever
    empower themselves with natural law by declaring:
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” and made that declaration stick.
    The tradition and psychological mindset from living in this empowered state since 1776 is something the Democrats have faced only once before, about 160 years ago, and it did not go well for them.
    Since they are already dressed for the occasion, perhaps the Democrats should pause a monent in their saffron robes to conteplatively reflect on the possible consequences of completing their plan to Impeach Trump.

    1. How sad it must be— believing that scientists, scholars, historians, economists and journalists have devoted their whole lives to deceiving you, while a racist fake Christian reality TV star with decades of fraud in his business dealings and exhaustively documented lying is your only beacon of honesty.

      1. Acromion

        Straight ahead – but see how few of the folks here are with you. It’s discouraging, but maybe they’ll wake uP one day soon.

  9. Many have discussed the true essence of the dilemma so I’ll just put it this way. The first and only question that must be asked and answered is it a high crime and misdemeanor against The Constitution or one against a particular political system which is itself guilty of high crimes forget misdeamors against The Constitution. Two examples leap to the front.

    Conducting a revolution against The Constitution since 1909.

    Taking the Oath of Office and violating that same Oath four times in taking it.

    A misdemeanor would be administering that same Oath of Office to those unworthy.

    Intent? One of the definitions of Intent Comey refused to consider was a long and repeated pattern of violating the law and what can be a greater violation than the basic oath of loyalty to the basic law of the land and then proceeding to prove it for over a hundred years … most recently the example of administering it to Ocasio who openly campaigned on an anti constitutional platform and who shows no understanding of it’s requirements. .

    Intent? The often openly stated intent to get rid of the Constitution and open efforts to ignore it with one subterfuge or another.

    I really wonder where the nation would have been today had Woodrow Wilson lost that election in 1908. But then one can point to many examples in the history of the country where the political side failed in their duties.

    Had they tried as hard to uphold, nurture and educate the population in their duties as the source of all power as the divine right of citizens and as self governing citizens as envisioned necessary to make this new idea work.

    Instead of putting self and greed ahead of Country and the ‘general welfare’ of citizens as a whole.

    Whose to blame?

    Those who who assisted and promoted that failure in universities and the free press and the halls of congress or the citizens themselves. Though being intentionally uneducated looms large as a sufficient reason though lacks entirely as an excuse.

    Perhaps we are continuing to be unworthy of their efforts 1776 to 1789.

    Can one truly expect to get ride of, for one example, racism when it was only replaced with reverse racism?

    Can one truly expect to get rid of sexism when offered only victimization of women

    Can one truly expect to find peace through strength in a nation that is constantly sent to wars and other conflicts by those who also support involuntary conscription to support those actions.

    I will quote Heinlein – short version. “If it’s worth it enough will come forward. If enough do not come forward it isn’t worth doing.”

    Which leaves only the option of truly making our volunteer citizens equal to a hundred of the opposition.

    And leaves our soldiery asking, “Should full citizenship including the right to wage wars be an accident of birth in a certain location or should it be earned by stepping forward and putting the good of the nation ahead of the good of one’s own self.

    I try never to leave a comment of this type with some positive direction and possible answers.

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