Considering the I-word

In the morass of the current mess in Washington, impeachment is being quietly whispered, even in the hallways of Congress. Some of the response has been vituperous and sharp allegations that such talk is an unwarranted partisan attack. Justified or not, it is probably useful to understand where these national scandals might go.

We have a tricameral form government – all three branches are coequal. This means that no one branch generally has the power to enforce its will on the other. Exceptions are few, but they do exist. Congress and the Office of the President have reluctantly acceded to the authority of the Supreme Court on its interpretation of constitutionality of laws and executive actions. This was not a historical “given” and we have had several historical markers from which this constitutional acceptance sprang. After all, it took President Eisenhower’s willingness to back up, with military force, the Supreme Court’s landmark decision finding unconstitutional the practice of “separate but equal” public education to make this legal decision more than a paper judgment.

This coequality principle presents an unanswered question, e.g., Can a president be guilty of a crime? In order for this to be true, a law would have to criminalize presidential conduct as enforced in our judiciary system. This has never really been challenged before in our history. The closest we came was with Watergate and, to a lesser extent, Iran-Contra. In the former, in the criminal prosecutions of President Nixon’s aides, the president was labeled an unindicted co-conspirator in the indictments. President Ford’s pardon of President Nixon stuffed into a hypothetical dustbin any criminal responsibility.

On the other hand, scandals engulfing a presidency are nothing new. President Grant was seen as largely ineffectual in the graft of the post-Civil War. President Harding’s presidency is widely viewed as one of our worst because of Teapot Dome. In both cases, fraud and greed smeared a president’s close associates but never reached the president himself.

There is, however, precedent suggesting a president can be prosecuted for acts committed “out of office.” We can thank President Clinton for that legal observation. This might have some current relevance, in that the FBI’s investigation into Russian tampering with our election happened before President Trump was sworn into office. In this sense, if there ever were any evidence that his campaign or transition team colluded with Russian agents, and such illegal activities touched President Trump, the office of the president probably would not be an absolute legal shield from prosecution.

However, the Constitution does not leave us without remedies when it comes to a wayward president. There is impeachment and the 25th Amendment. The power of impeachment of executive branch officials (including the president, vice president and the judiciary) is vested with the House of Representatives in Article I, §2, Clause 5 of our Constitution; trial of the House’s articles of impeachment (think of this as analogous to a criminal indictment) is in the Senate, pursuant to Article I, §3, Clause 6, with the chief justice presiding where a president is the subject.

Impeachment is a little used remedy. With respect to presidents, we have only seen articles passed out of the House twice – Andrew Johnson and Bill Clinton; articles were drafted and never voted on with respect to President Nixon. Both trials ended with acquittal; in the case of President Johnson, the Senate was only one vote short of him being removed from office.

Our Constitution leaves the ground muddy about what constitutes removal from office – “Impeachment for, and conviction of, treason, bribery or other high crimes and misdemeanors (Art. II, § 4).” Historically, some impeachments have been brought for non-political reasons, things like drunkenness, graft, accepting bribes and tax evasion. Sometimes, the mere threat of impeachment results in a voluntary resignation, which is what happened with President Nixon. Often, though, impeachment is inherently a political action. The very first impeachment attempted was in 1797 to remove William Blount from the Senate for conspiring with the British. In his case, there was no trial and the Senate just voted to expel him by the body’s internal rules. President Johnson’s impeachment was clearly political, as he was a Democrat and the Republican Party, flush with victory from the Civil War, wanted to crush the south in reconstruction and President Johnson blocked their agenda.

“High crimes and misdemeanors,” then, means whatever Congress decides it means. The only limit to this power is what the general public would accept as a legitimate legal action to protect the body public. This makes irrelevant, in the case of President Trump, whether or not he personally colluded with the Russians. In fact, as is often the case, the “cover-up” of any wrongdoing might be his undoing.

There is an alternative method for removing a president from office found in the 25th Amendment. Section 4 permits for the removal of the president, elevating the vice president, “Whenever the vice president and a majority of either the [Cabinet] or of such other body as Congress may by law provide, transmit to [Congress] their written declaration that the president is unable to discharge the powers and duties of his office.” A president can defang his or her automatic removal, by contesting this transmission, in which case a 2/3 majority of Congress would be needed to overrule this objection.

Time will only tell, as events unravel and we learn more about facts, what will happen with the Trump administration. If the House swings to the Democrats in 2018, we can expect things to really heat up. Wherever this goes, we can only hope the results are acceptable to most of us.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston County chief assistant district attorney and a former Miami prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions and to review former articles and frequently asked questions.

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