Impeachment in the Age of Trump: Laurence Tribe’s Evolving Views Of Impeachable Conduct

Harvard Professor Laurence Tribe was on CNN last night reassuring viewers that the Constitution clearly and unequivocally allows for the trial of a former president. In what has become a signature of Tribe’s commentary, he declared any contrary view as “stupid” while engaging in gratuitous personal insults.  I have previously written about Tribe’s past personal attacks on those who hold opposing political or legal views. While such attacks thrill many on social media, it should have no place among academics. What is more notable however is how Tribe’s views have changed since the Clinton impeachment when we testified at the impeachment hearing of constitutional experts. While he once questioned whether Bill Clinton could be impeached for a murder unrelated to his official conduct, Tribe has suggested that Trump could be impeached for a tweet alleging criminal misconduct by Barack Obama.

Tribe has been a leading voice declaring clear criminal or impeachable conduct by Trump for years. Harvard professor Laurence Tribe declared Trump’s dictation of a misleading statement about the Trump Tower meeting constituted witness tampering. Tribe previously found compelling evidence of obstruction of justice, criminal election violations, Logan Act violations, extortion and possible treason by Trump or his family.

What is striking is Tribe’s recent claim that this is neither a close nor a credible question. As with his past assertions on Trump crimes, Tribe declared that the Constitution is clear and any argument against trying ex-officials is “stupid.”  Many scholars who have reached conclusions on the issue, including myself, have stressed that this is indeed a close question for them. There are a variety of opinions but most academics recognize that either interpretation is credible. For example, Professor Cass Sunstein sees strong arguments on both sides and agrees that the answer is not clear. However, he believes that the House cannot impeach a former official but the Senate can probably convict one. Tribe however has been assuring the public that the question is clear and any opposing views can be dismissed as nonsense.

While Tribe raised how my own views have changed from “not long ago” in reference to an article written 21 years ago, they have not changed nearly as much as those of Tribe in that “brief” time. Tribe’s own evolution is rarely discussed beyond conservative legal sites.  Tribe previously adopted extremely narrow legal interpretations when asked about the alleged crimes or impeachable offenses of figures like Bill Clinton. However, he has adopted broad interpretations in justifying prosecution or impeachment of Trump from issues like emoluments with the same assurance of clarity and certainty (despite opposing rulings from various courts). He was calling for impeachment from the earliest days of the Trump Administration. That includes impeachable tweets.

In March 2017, Tribe slammed Trump for saying that his campaign and Trump Tower was wiretapped or surveilled by the FBI. It turns out that the FBI in the Obama Administration did in fact conduct surveillance on the campaign after universal refutation by many in the media. Tribe however insisted that Trump could be impeached for the tweet, stating “Using power of WH to falsely accuse [Obama of an] impeachable felony does qualify as an impeachable offense whether via tweet or not.”

So just tweeting an accusation against a political opponent is an impeachable offense since it was done from the White House. Tribe is also quoted in another interview in saying that the campaign finance violation allegations brought against Trump lawyer Michael Cohen are “serious crimes” and, if Trump is not indicted, the Congress can still bring impeachment proceedings against him based on Cohen’s allegations:  “The alleged crimes make Trump impeachable. But whether and when the House should proceed to impeach is a complex judgment call.”

That is in sharp contrast to Tribe circa 1998.

Both Tribe and I testified in the Clinton impeachment where Tribe maintained that the Constitution was clear and that Clinton could not be impeached for the felony of perjury.  Democrats agreed (as did a later federal judge) that Clinton knowingly committed perjury under oath, but Tribe insisted that impeachment was simply not that broad.  In an ironic foreshadowing of Trump’s claim that he could shoot a person on Fifth Avenue, Tribe even questioned whether a president could be impeached for a murder separate from his executive duties. In addition to categorically ruling out the perjury crime as impeachable, Tribe questioned if other crimes like bribery would be impeachable despite its direct reference in the constitutional standard. Tribe said that if Clinton bribed the judge in the Paula Jones case “it would impair, surely, and shed negative light on his integrity, his believability, his virtue, but it would not make [serving as president] impossible” under the Constitution.

Tribe cautioned against unnecessary impeachments and said that Congress should rely on the availability of later criminal prosecutions:

Removing a President, even just impeaching him, paralyzes the country. Removing him decapitates a coordinate branch. And remember that the President’s limited term provides a kind of check, and if the check fails, he can be prosecuted when he leaves. To impeach on the novel basis suggested here when we have impeached only one President in our history, and we have lived to see that action universally condemned; and when we have the wisdom not to impeach Presidents Reagan or Bush over Iran-Contra; and when we have come close to impeaching only one other President for the most wide-ranging abuse of presidential power subversive of the Constitution would lower the bar dramatically, would trivialize a vital check.