IMPEACHMENT AND CORRUPTION
By Matthias Rossbach
[This article published on October 9, 2019, is translated from the German on the Internet, https://verfassungsblog.de.]
Both sides of the political spectrum in the United States of America are now raising the reproach of "corruption." While Donald Trump criticized the Biden family for "corruption," the former Vice-president describes the acting president as "the most corrupt president we have had in modern history." This term has a tradition that goes beyond the current discussions. "Corruption" is one of the key terms for understanding the American republic and the impeachment process.
"Corruption" was one of the greatest dangers for the future community from the view of the American founders at the end of the 18th century. In the Philadelphia Constitutional Convention, the problem of "corruption" was thematized. The founders were influenced by Machiavelli's republicanism that entered American discourse through the writings of British politicians and philosophers Bolingbroke and Montesquieu. Before the Independence in 1776, the "corruption" of the English colonial power was the problem – and virtuousness, the "virtue" of the American revolutionaries, was the solution.
After Independence, the challenge was to choose political leaders marked by "virtue" who could not be carried away to "corruption." "Corruption" always meant more than corruption in the narrow sense. "Corruption" is an orientation in self-interest and the misuse of power to increase one's power. It is the opposite of republican virtue, orientation in the common good and deferring one's interests.
"Virtue is the only foundation of republics, said the later second president John Adams in 1776. His predecessor George Washington was seen as the epitome of the capacity for postponing his interests for the common good. Washington's voluntary withdrawal after two terms in office was often interpreted in this sense – at least retrospectively ("The limitation to two terms in the office first took effect in 1951 through the 22nd Amendment to the Constitution).
Since the founders knew not all presidents would be like George Washington, a procedure to protect from "corruption" in the person of the president was needed. That is one of the main purposes of the impeachment process.
The impeachment process – like many other elements of the American constitutional system – has English prototypes. The reasons set out in the American constitution (Article 2 Paragraph 4) come from the impeachment procedures practiced centuries before in England: "treason, bribery, or other high crimes and misdemeanors." But these reasons were interpreted differently in America. Firstly, the impeachment process in America in the colonial era was an expression of national sovereignty – removing royal office-holders for abuse of office as a herald of revolution.
Impeachment processes could only be initiated in the House of Representatives (Article 1 Paragraph 2 Sentence 5: "the sole power of impeachment"). Secondly, the republican dichotomy of "virtue" and "corruption" was central. The impeachment process was understood as a remedy against "corruption." "Treason, bribery or other high crimes and misdemeanors" are not only crimes and offenses in the technical sense. The violation of the trust of the people through abuse of office – the misuse of power for one's enrichment, the missing orientation in the common good – is the reason for removal from office. Alexander Hamilton confirmed this:
"…those offenses which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust. They are of nature which may be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself"
"Maladministration" – developed from the argument at the Constitutional Convention – is not a sufficient reason for removal from office. James Madison saw the danger that the de3pendence of the president on the will of the Senate would be too great if "maladministration" were enough for removal from office. The founders wanted to avoid the dependence of the executive on the legislative by deciding for an executive independent of the legislative assembly.
Reasons for removal from office have not been settled definitively to this day and have never been defined by the Supreme Court. The American constitutional founders consciously kept the court out of removal from office problems and instead entrusted the decision to the Senate that should decide with a two-thirds majority. In Federalist No. 15, Hamilton expressed doubt in the strength ("fortitude") and authority ("credit and authority") of the court for approving a political process begun in the House of Representatives. Correspondingly, the Supreme Court in the Walter L. Nixon v. US case declared a decision of the Senate in the impeachment procedure cannot be overturned on account of the Political-Question doctrine. That the Senate impeachment proceedings against the president is presided over by the Chief Justice (Article 1 Paragraph 3 Sentence 6) shows the intended judicial character of the procedure (trial). However, the founders were certainly aware of the danger" that the decision could be decided more by the comparative strength of the parties than by the real demonstration of innocence or guilt" (Alexander Hamilton).
This danger could also materialize in the impeachment procedure against Donald Trump – after the current inquiry. Still, this political dispute is not entirely without standards. It will be conducted in a "constitutional language" going back centuries. Resisting "corruption" has occupied the American republic since its origin – along with the search for "virtuous leaders."
"The aim of every political constitution" is, or ought to be, first to gain leaders who possess most wisdom to discern and most virtue to pursue the common good of the society and in the next place to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust" (James Madison, The Federalist No. 57).
Impeaching a President: how it works, and what to expect from it
Sa 28 Sep 2019 https://verfassungsblog.de/impeaching-a-president-how-it-works-and-what-to-expect-from-it/
Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. His research specializes in constitutional law and theory, including comparative constitutional law.
Metaphors abound in discussing how dramatically the issue of presidential impeachment has become central in U.S. political discourse: a simmering kettle boiled over, the Whistle Blower blew the lid off efforts to conceal scandalous (almost treasonous) presidential behavior. And everyone notes that what has been revealed is almost certainly matched by information that will come out sooner rather than later. It’s not possible to summarize the state of play because relevant events occur almost hourly. Here I’ll offer a primer on presidential impeachment in the United States for readers who might not be familiar with the basics, then offer some comments about presidential impeachment in comparative constitutional law.
The primer: procedure
Removal of a U.S. president has two stages, one in the House of Representatives the other in the Senate. Scholars take for granted that the courts have no role in presidential removal, drawing strong support from a case involving the removal by impeachment of a federal judge, Walter Nixon v. United States. (Including the first name is essential to avoid confusion about Richard Nixon’s departure from office to avoid impeachment.) One occasionally hears hints that the norm-breaking Donald Trump and his lawyers might try to get the Supreme Court to intervene in an impeachment – Trump himself suggested that course in a tweet – but at present that seems quite unlikely.
The term impeachment refers to the first step in presidential removal. An impeachment is, technically, a finding by a majority of the House of Representatives that the president committed acts warranting removal. It is often analogized to an indictment. At present the Speaker of the House of Representatives has announced that the House would initiate an “impeachment inquiry.” This refers to the procedure to be used to develop findings of impeachable conduct. The Constitution allows the House to develop whatever procedures it chooses for this process, and the standing rules of the House authorize each committee to develop (by majority vote) the procedures it will use. The announced initiation has relatively little legal significance, though it may strengthen the House’s hand in pending litigation in which the president has challenged various requests for information from House committees; some scholars think that the permissible scope of presidential defenses against information disclosure –in particular, privileges against disclosure of communications within the executive branch (“executive privilege”) – is narrower in connection with impeachment inquiries than in connection with ordinary congressional oversight of the executive branch. (Arguments about a narrower scope for a “national security information” privilege are somewhat weaker.)
If the House approves one or more articles of impeachment, the process moves to the Senate. Presided over by the Chief Justice, the Senate conducts a trial on the charges. The process is under the Senate’s control, with the Chief Justice serving at most as something like a docket-controller or, perhaps, as someone who can make rulings, when asked, on contested questions of law. Even as to those question, though, the Senate majority would have the power to overrule its presiding officer. (There’s been some speculation that the Republican majority leader of the Senate would not convene a trial or – more plausibly – that immediately after the Senate is convened he would move for a vote on the charges.) A President can be removed from office if “convicted” by a two-thirds vote. As a matter of political realism, under current circumstances either enough Republicans will have announced their intention to vote to remove Trump from office that he, like Nixon, would resign, or there would be a formal vote leading to an “acquittal” because not enough Republicans would join Democrats in voting to convict. (There’s a lot of speculation about what the political consequences of an impeachment-plus-acquittal would be, but that’s beyond my expertise.)
The Constitution states that the consequences of impeachment are merely removal from office (that is, it carries in itself no criminal consequences although subsequent criminal prosecution is not ruled out), although the Senate may declare separately that the removed president is disqualified from holding national political office in the future.
The primer: substance
According to the Constitution a president can be removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” The Constitution provides a technical definition of treason: “levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” This technical definition is narrower than contemporary common usage, in which “treason” is often used to refer to actions fundamentally inconsistent with a person’s commitments to the United States. It’s reasonably clear that nothing so far alleged about Trump’s behavior counts as “treason” in the constitutional sense, if only because neither Ukraine nor Russia is an “enemy” of the United States, again understood in a technical sense.
“Bribery” is generally understood to be a payment to the recipient given in exchange for the recipient’s performance of an act benefiting the donor. Again, Trump’s actions don’t fit that definition; they are more like extortion of an action from Ukraine in exchange for a personal benefit to the president. And, to the extent that extortion or unlawful campaign contributions might be thought to be a “high crime,” there’s a non-trivial argument that the “bribery” provision precludes removal for other roughly similar financial misconduct by the president.
Practice in connection with impeachments of federal judges and the impeachment (but not conviction) of President Clinton suggests the possibility that something like an informal constitutional convention has emerged about the meaning of “high Crimes and Misdemeanors.” On this view the term means conduct that is, as I would put it, is “in the neighborhood” of criminal conduct even if actual criminality cannot be proved because of, for example, technical deficiencies with respect to the proof of one element or the invocation of technical defenses. If the House and Senate adhere to this view, we will hear a great deal about whether Trump’s conduct was criminal (was there an express quid pro quo, for example?) or close enough to criminal to justify removal.
Another understanding appears to have emerged rather rapidly in the current series of events. On this alternative view, removal is justified when the president engages in activities that are fundamental breaches of trust with the American people’s expectation that the president will act, especially in connection with national security and foreign affairs, in the national interest rather than in the president’s personal or merely political interest.
Presidential impeachment has recently occurred in several nations around the world. Wikipedia lists South Korea, Brazil, Ukraine, Paraguay, Lithuania, Indonesia, Peru, and the Philippines since 2000. The first comparative question is whether the best account of this phenomenon is simply that local circumstances arose in each nation leading to the impeachment – or, alternatively, whether there is some reasonably general account.
The most obvious candidate for the latter would almost certainly invoke populism and its effects on national party systems. On some accounts populism is based upon or leads to the discrediting of existing political parties and the rise of alternative parties devoted to completely eradicating those parties. This is sometimes described as a situation in which parties and politicians see an existential threat if their opponents remain in office. Another description is that populism leads to hyperpolarization of political parties (or, sometimes, coalitions). I suspect that there is something to this story, but it almost certainly is incomplete. For me, for example, the story fits Brazil quite imperfectly, in part because prior to President Rousseff’s impeachment the party system was chaotic rather than hyperpolarized and because populism’s rise appears to post-date the impeachment.
I am most familiar with the local story that can be told about the United States. It comes out of the school of political science known as American Political Development (APD). APD identifies relatively long-term “regimes” in the American constitutional order – for present purposes, the New Deal/Great Society regime and the Reagan Revolution regime. Sometimes a president happens to take office who represents the party “opposing” the regime. Such a president can be seen by the regime’s supporters as illegitimate, and impeachment is placed on the political agenda.
Another possibility is this: A regime decays, for predictable reasons. As they do, alternatives are proposed. At some points the old regime is not yet dead but the new one has not yet been born. Presidential impeachments can be indicators of those situations. That appears to be the current situation in the United States. The Reagan Revolution was exhausted during George W. Bush’s presidency. The Obama presidency was something of an interregnum, although he and some of his most ardent supporters thought that he might initiate a new constitutional order. Trump came to office as the proponent of a replacement regime, the precise contours of which remain unclear. And Democrats see his election as opening up the possibility of ending the interregnum by initiating their own new constitutional order. Impeachment talks signals the impending end (perhaps) of the interregnum.
Over the hours during which I was working on this post further events have unfolded in the impeachment story. The best that can be done, I think, is to provide some orientation to the issues that may arise in the United States, and some ideas to provoke broader reflection. I hope to have done so here.
Getting Rid of Them
Fr 11 Okt 2019 https://verfassungsblog.de/getting-rid-of-them/
Maximilian Steinbeis is a legal journalist and writer and the founder and chief editor of Verfassungsblog. His recently appeared book (with Stephan Detjen) is "Die Zauberlehrlinge. Der Streit um die Flüchtlingspolitik und der Mythos vom Rechtsbruch".
Frankly, I find it not easy to keep my countenance this week. This is not alone because of the devastating fact that Jews have to fear for their lives when celebrating their highest holiday in Germany 2019.
In the United Kingdom, the Prime Minister’s aides announce that he’d challenge the Queen to dismiss him in the event of a vote of no confidence in Parliament. In the United States, the President’s counsel denies the House of Representative the right to investigate his misconduct. Both, Johnson and Trump, are hardly trying to keep up the appearance of constitutional justification while going out of their way to show that they are prepared to throw what has so far generally and beyond all political preferences and sympathies been held for binding constitutional law right out of the window.
Politics of the finger
The impeachment procedure initiated by the Democrat-dominated House against President Donald Trump consists of two parts, roughly comparable to preliminary proceedings and trial in criminal law: The House of Representatives plays the role of the public prosecutor, issuing subpoenas, interviewing witnesses etc., and once it is satisfied that there is sufficient evidence to go to trial, it decides to bring charges. The Senate’s role, on the other hand, is hold a trial and to decide if there is indeed sufficient evidence to prove the guilt of the impeached. This division of labour has its roots in ancient English common law, long obsolete in the meantime, according to which the House of Commons will indict devious members of Her Majesty’s Government, but passing judgment is reserved to the House of Lords. A two-thirds majority is required in the Senate for a guilty verdict which provides some protection against the use of this procedure as a mere political cudgel. (All this in theory, at least.)
Like any prosecutor’s office, the House majority takes a considerable risk if it decides to impeach. If they fail to get a conviction, that is a defeat for which there will be a political price to pay, as the Republicans found out after the collapse of their impeachment trial against Bill Clinton. Thus, there is a robust incentive to initiate this procedure only if there is hope for a dynamic which will ultimately bring the political camps together in the course of the investigation to form some sort of a non-partisan opposition towards the exposed and mortified President. Whether or not that is likely to succeed with Republicans in their current state seems rather doubtful, of course, but to find out and kick that dynamic off the House must start to investigate first, which is what they are doing and what the eight-page letter of Trump’s lawyer Pat Cipollone to Nancy Pelosi and her committee chairmen is about, in which he describes the investigation as a violation of "fundamental fairness and constitutionally mandated due process" and announces that Trump will neither cooperate with the investigation himself nor allow his administration to do so.
The argument of Trump’s lawyer, if you like to call it that, is that the impeachment investigation was not initiated by a majority vote, and the defendant was deprived of the possibility of questioning the witnesses themselves. It does not take much to see that a majority decision is the end and not the beginning of the impeachment investigation and that cross examinations are part of the trial before the Senate but not of the preliminary proceedings by the House.
Trump’s lawyer, however, declares the whole impeachment investigation "invalid". If the President got away with that, and on such a flimsy basis, the constitutional damage would obviously be tremendous. In a presidential system where the executive does not depend on the confidence of the people’s representatives in Parliament, an impeachment trial is the only democratically innocuous way to get rid of a criminal but nevertheless democratically elected president.