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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. Maybe due to a lack of effective Civics Education for voters. Maybe due to a lack of substantial “Judicial Review” [invalidating unconstitutional practices] policing by the U.S. Supreme Court – we have “Tribalism” or as James Madison termed it a “tyranny of the majority” – not an American constitutional democratic republic. There is virtually no substantial penalty for constitutional-law breakers or oath-breakers. It’s a goal we should moving towards but we have “Tribalism”. Impeachment must be viewed through the lens of tribal voters where there is no substantial checks & balances by the Judicial Branch. Basic legal theory teaches us that without risk of penalty, there is no “deterrent effect” to constitutional-law breaking (which is defined in the Federal Criminal Code as well). That’s where we are at today. We should be indicting the Bush DOJ torture attorneys and having a Monica Goodling style “Truth Commission” to create vital reforms.

  2. A website says that Trump was at the top of the Washington Monument with “a hooker who was a looker” (Trump’s words). Some dork from some “news source” called Buzzfeed reported this. Well that might be “high” and he might have been high, but it may not be a crime or even a misdemeanor. What is a “high” crime is becoming a focus.

  4. I like this column of Professor Turley separating politics from the duties of our legislators, duties they haven’t taken to heart for a long time. Of course Trump has done nothing impeachable so all these Democratic legislators are doing is creating noise hoping that this will improve their success at the polls even though what they are doing is causing great harm to the American people. Since when do left wingers care about hard working Americans? Their goal is to increase the size of government and with it their power.

  5. Grand Jury deliberations are kept secret, so if it refuses to indict because they doubt there will be a conviction, we’re not supposed to know. That makes sense to me, but Congress doesn’t have that protection. With impeachment, the ugly process is there for the whole country to see. And we can’t look away.

    Fortunately – or unfortunately – Congress doesn’t seem to be bothered by “turning itself into knots” when doing its duty to the Constitution is a political disaster. Any senate trial on Trump’s conduct,, if it is seen as meeting the impeachment standard, will make Clinton’s look like a stroll in the park. And since the founders designed it as a political process, I don’t think many in the Democratic House will feel too embarrassed when they say “thanks, but no thanks” to impeachment.

    I appreciate Professor Turley’s cogent analysis of Congress’ duty to the Constitution. But, really, isn’t it a little disingenuous to hold them to such a standard while admitting that he doesn’t think the evidence is sufficient anyway.

  6. “Resist, impeach” have been the war cry of the LOSERS since the American people legally elected this President. In almost three years now an attempt to find a crime, any crime to hang on this man by democrats and the MSM has proven that they are corrupt. A special counsel loaded with Clinton supporters to find Russians hiding in voting booths. Thousands of illegals in caravans bum rushing our border and democrats refuse to give this President the resources to finally try to end it. The real perpetrators of proven crimes have yet to be dealt with and probably will never be dealt with. The victims in all this are working class Americans, thier children and grandchildren. There’s a New Democrat party now that’s bent on destroying the very thing this nation was founded on, God Help All Americans.

    1. God has already helped us. He gave us the Second Amendment and the Democrats are the exact people He gave it to us for.

  8. There is one key sentence in the column that I think summarizes the Democrats’ political calculations involved in the “impeach/ don’t impeach” debate.
    “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.”
    Absent a major “smoking gun” offense uncovered by investigators that forces the House’s hand, the impeachment talk seems likely to remain just that….talk.
    If Trump does run for a second term, his administration may or may not be in free fall by November 2020. It’s impossible to know what level of support he’ll have by then due to all of the unpredictable variables.
    But I think that the opposition’s expectation is that Trump will be damaged enough by then to allow the Democratic candidate to win, and that they’ll stick with that game plan.

    1. See Independent Bob’s comment below.

      Democrats always have to worry about the prospect for payback.

      Running for President could become volunteering to be investigated or impeached.

  9. Suppose the Democrats impeach Trump. What if they are not successful? I’ve said this before, can you Imagine Donald Tump after an unsuccessful impeachment trial. I don’t think the Left would try a 2 nd impeachment process. How would Donald Trump behave if he beats the suite? He could turn out to be the nastiest creature the American left has ever met.

  10. Sorry, but “they ain’t got nothin’ on me” — yet.

    The House will have enough troubles just getting to their offices on Tuesday…

  11. Turley type, “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.”

    A) Turley doesn’t see any basis for impeaching Trump. B) Turley posits that the Democrats do see a basis for impeaching Trump. C) Turley posits that the Republicans see no basis for impeaching Trump. D) Turley argues that the truth of A and C is no excuse for Democrats declining to do what Turley and the Republicans see no basis for doing.

    I’m not sure whether Turley’s unreasoning qualifies as a double-dawg or a triple-dawg dare. It is, however, most definitely unreason. Here’s the tell: Turley asserts that there is a constitutional duty to impeach. No such duty exists. And Turley knows it. And Turley does not care about knowingly asserting the existence of something that does not exist. Why? Remember: Turley “. . . continues to question the basis for an impeachment on the evidence available at this point.”

    Also recall Turley’s little ditty about a rush to judgment based on cognitive bias and path dependence. Surely Turley attempts to pull that argument up by its own bootstraps.

      1. Surely Turley prefers that the Democrats should impeach Trump before the Democrats uncover any basis for doing so. Surely Turley is hoping to avoid the relentless, merciless investigations that the Democrats have laid in store for Trump. Recall Turley’s previous remarks about the Democrats running out of runway to get the impeachment of Trump airborne before the 2020 election. Running out of runway? Is there something, anything, written in The U.S. Constitution prohibiting the impeachment of a sitting President during an election year in which that incumbent President is running for re-election to a second term of office? No! Just as there’s nothing in the constitution saying that anyone has a duty to impeach if one believes that there is a basis for doing so.

        Who was Andrew Johnson, anyhow? Does anybody remember what ever in the world happened to Andrew Johnson? Where’s George? And where’s Paul C. Schulte, for that matter?

          1. I hope so, too.

            I also hope that Trump’s lockout (government shutdown) had nothing to do with Don Pablo’s hiatus.

                1. He may have volunteered to help clean up the national parks in Arizona.

                  I think he’s too old for border patrol. (Don’t tell him I said that last part.)

        1. Excerpted from the article lined above about the Impeachment of Andrew Johnson:

          On March 5, the trial began in the Senate, where Republicans held more seats than the two-thirds majority required to remove Johnson from office. When the trial concluded on May 16, however, the president had won acquittal, not because a majority of senators supported his policies but because a sufficient minority wished to protect the office of president and preserve the constitutional balance of powers.

          [end excerpt]

          Well, there you have an alternative explanation for Democrats remaining cautious about the impeachment of Trump: To protect the office of president and preserve the constitutional balance of powers.

            1. There’s a bunch of moving parts on the bribery statutes. The exact timing of Trump’s flirtation with The Russians over the Trump Tower Moscow deal could conceivably furnish a defense against a charge of solicitation of a bribe. The key will be determining what sort of “promises” Trump may have made to The Russians. Also, whether those promises may have been made by Don Jr. instead of Don Sr.

      3. Mespo,…
        If Soros takes her off the payroll and she stops rewriting JT columns, and telling us what JT “really said”, readers would be left in the lurch ……….and left with only the actual words in the columns and the actual points made in the columns to go by.
        But as long as she does her reviews and her rewrites of the columns, there’s not even a need to read the original columns and understand what is in them.

        1. Know your idioms. The link below is not bad. However, it neglects to mention the practice of poaching game on the Lord’s manor that became the specialty of a particular type of dog known as a lurcher that could be trained to avoid getting caught in traps as well as to steal the bait from the trap. That’s the part that’s relevant to Trump.

          https://www.phrases.org.uk/meanings/left-in-the-lurch.html

    2. Turley approaches, but does not explicitly say, that the standard for an impeachment charge should be substantial proof – evidence – that the accused has actually engaged in bribery, treason, high crime or misdemeanor. Just as any prosecutor must weigh the evidence before filing a criminal complaint against some one. If the proof is insufficient – even if the prosecutor “believes” that a crime has been committed – the prosecutor should not indict.

    3. Late 4, JT has to throw something against the wall for his right-wing base he has here. The right-wing think tanks have been busy trying to convince the American public that the Democrats have and will go to far protecting the institution of the law, so when the time comes for Trump, and it will, they can say see..see.. its all political. The far right are like the right-wing christians that only cherry-pick the parts they like in their bibles and constitution, the other parts, not so much.

      1. I agree, completely, FishWings. Also, Turley is still keen on defending his testimony in support of the Clinton impeachment. The Republicans did it out of a sense of duty to the Constitution, you see. Therefore, the Democrats have to impeach Trump out of a sense of duty to the Constitution while the Republicans and Turley get to poor cold water the basis for impeaching Trump AND keep their sense of duty to the Constitution intact. Marvelous.

        P. S. Did you notice that Andrew Johnson was impeached in 1868? IIRC, 1868 was a presidential election year. Curious, no?

  12. This is totally misguided. Regardless of outcome, an impeachment of the POTUS tears apart the country and cripples a Presidency. Like every prosecutor, the House has a duty to exercise prudence. If the chances of victory are remote, why bring the charge? You further divide the country and look partisan in the process. The classic definition of lose-lose.

    1. Tempting as that is, as Jonathan Turley makes clear that is not the duty of the House of Representatives in the face of “High … Misdemeanors”.

      By the way, does the wording mean that there must be at least two?

    2. Like every prosecutor, the House has a duty to exercise prudence.

      I would argue we are already being ripped apart because our elected have decided to exercise their judgment instead of their sworn duty. I just checked, and no where in the oath of office does it suggest they are to exercise prudence. Haven’t we had enough of these oath takers taking liberties with their sworn duties? Be prudent, be bold, but in all decisions be constitutional.

  13. REASONS IMPEACHMENT RECEDE IN URGENCY:

    1) “TOO CLOSE TO NEXT ELECTION”

    Even if Democrats had a smoking gun to impeach Trump next week, it would take a least a year for the entire impeachment process to wind its way through courts. Surely Republicans will drag it out as long as possible. Professor Turley understands that. By the time Trump is truly evicted, we’re up to the Iowa Caucus.

    2) “WHY GIVE PENCE A CHANCE?”

    Trump leaves just before the primaries giving Pence the White House for almost a year. In that time right-wing media could build Pence up as: “An American Hero providing fine leadership in the wake of a crisis”.

    With Republicans totally behind him, Pence could possibly pull off an Electoral College victory. Another ‘stunning upset’ where the Republican wins while losing 3 million Popular Votes. Democrats might do better facing Trump directly.

    3) “MIKE PENCE COULD BE A DIFFERENT TYPE OF CRAZY”

    America could lurch from rash, narcissistic Trump to Christian caveman Pence. That would be the transition in store for America.

    To his credit Mr Pence has a distinguished look. If he was a Hollywood actor, Pence could work steadily on the strength of his white hair. What’s more, Pence is capable of sounding adult in public; unlike Donald Trump.

    But Pence is unusually close to the Christian Right. As Governor of Indiana, Pence played to them exclusively. In fact, Pence’s re-electability as Governor was greatly in doubt. Luckily he became Vice President instead. Had Trump not chosen Pence, the latter might have been defeated back home.

        1. Mespo727272, I can’t say yet other than he gives me the creeps.

          :==:
          Which means that I’ll not reply to further replys. Gutter width of the layout on this device.

  14. Impeachment threats?

    Keep an eye on the powerful House Financial Services Committee, which oversees the banking industry.

    Maxine Waters (D-CA) is chair of the committee

    Maxine Waters announced the list of 16 new Democratic appointees to the financial services committee. Eight of them are members of the Congressional Progressive Caucus, a left-leaning group of members. That list includes Alexandria Ocasio-Cortez as well as Reps. Katie Porter (D-CA), Ayanna Pressley (D-MA), and Rashida Tlaib (D-MI).

        2. Maxine is one of the stupidest politicians in the country. She has called for violence, been proven unethical and is a political bomb thrower. Her gender and race don’t immunize her from criticism. I said About the same (no calls for violence) concerning Sarah Palin and most applauded.

          1. Mespo,…
            If you are going to call out a member of Congress for being stupid, you’d better make sure that it’s a white male member of Congress.😉
            Don’t you know “the rules”?

            1. Tom Nash, so many of those it’s not neuz.

              :==:
              means that I won’t respond to replys.

              1. DB Benson —Somehow, I’ll manage to get by whether you reply to my comments or not. -Tom….no room to log in, so it’ll post as anonymous

  16. Mr. Turley is just being an ambulance chaser here. Looking for a lucrative opportunity. The overpaid members of Congress are for once making a sensible decision to not pursue a costly waste of taxpayers time and money which they also have a moral if not legal responsibility to do. Not that they will actually do something productive, but there’s always hope.

  17. If only there were less stones & glass houses, forgive me while I stand back & watch fools destroy themselves from both sides.

    The only winning move is not to play as it seems to me.

  18. In a way this might resemble prosecutorial discretion in a criminal case. A typical example is the example of a criminal defendant in an assault charge might lay an affirmative defense of “self-defense”.

    In our state if a defendant is found by a jury to be not guilty of a crime involving assault, he might petition the jury to enter a finding of self-defense. If the jury agrees, the state is required to pay the defendant’s legal fees.

    A prosecutor might elect not to prosecute a case due to the possibility a defendant might receive a finding of self-defense, and thus the county might be forced to pay for a high-priced criminal defense attorney’s fees in a misdemeanor assault trial.

    On another topic, I’ve written often that for an ordinary person, the threat of a criminal prosecution is a punishment in and of itself. I’ve personally seen examples where heavy handed prosecution was levied against an individual for the sole purpose of causing distress to that person. Of course, the probable cause was razor thin and weak but it was just enough to avoid any accusation of barratry made by the defendant against his accusers. Many politicians making the impeachment threat are getting the cart ahead of the horse. They demand an impeachment before they have substantive evidence to ensure a successful prosecution. Most of this is purely theater and a bad one at that. Despite what many of these crybabies want they do not get to choose who wins general presidential election. Their only proper response is to vote for another candidate themselves at the ballot box just like any other citizen. But they typically cannot handle the idea that they get the same vote as the little people, and hence the spectacle erupts during their daily expression of perpetual outrage.

    1. The first part was informative.

      But most of the representatives really, really do not want to impeach or even start proceedings. The causes would have to be substantial and so far the anti-Donald troopers ain’t got boopis on that Manhattan Mafia member.

  20. The elected slackers and charlatans in the House and Senate don’t come close to matching the high standards set forth in the Constitution by the Founding Fathers. Expecting them to uphold their all-important responsibilities and act with their country in mind over their respective parties’ welfare is like expecting one’s dog to own up to the fresh steaming pile of poo on the new living room carpet.

    Speaking of fresh steaming piles of poo, the Congress is neither fresh nor steaming.

    2. There are no ‘high standards’ set forth in the Constitution in order to sit in Congress. You have to be an American citizen who has reached a certain age and has held one’s citizenship for a certain period of time. That’s it. (IIRC, the minimum age is 25 for the House and 30 for the Senate and the minimum time as a citizen is 7 years).

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