The Guy Who Wrote the Book on Impeachment Says Trump Clears the Bar for Removal from Office
Frank O. Bowman wrote the book on impeaching the 45th president. Published in July, High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump seeks to ground the talk about removing the president from office in centuries of history and practice. A law professor who teaches at the University of Missouri and lectures at on impeachment at Georgetown, Bowman doesn’t pretend to be above the fray, politically. He describes himself as a “centrist” Democrat. But he insists, “I’ve tried hard to play it straight in applying rigorous legal and constitutional analysis.”
Bowman’s book has become extremely timely after, as he puts it, the “dam broke” and the House launched a formal impeachment inquiry last week into Trump’s attempts to strong-arm Ukraine into digging up dirt on Joe Biden. For Bowman, as a constitutional scholar, the impeachment bar has been cleared. “He’s gone far enough — what he’s done amounts to impeachable offenses,” he says. “And moreover Congress ought to do something about it.”
Rolling Stone spoke to Bowman about Trump’s transgressions, the constitutional standards for impeachment, and Congress’ past efforts, successful and not, at removing abusive presidents from power. What follows has been edited for length and clarity.
The House has opened an impeachment inquiry into president Trump’s behavior. What has Trump done that places him at peril for being removed from office?
The operative phrase in the Constitution is “treason, bribery or other high crimes and misdemeanors.” Whatever happened here plainly isn’t treason, because treason is very narrowly defined in the Constitution. It’s probably not bribery, either, in the original constitutional sense or in any current statutory sense. There’s an argument here that what happened was a violation of federal election law, if getting opposition research is a “thing of value” under election statutes. That’s the reason why Trump’s former lawyer [Michael Cohen] is now serving time — one of the crimes to which he pleaded guilty. But I don’t think that matters, whether there was a violation of any criminal statute. The key thing to understand about the last constitutional definition is that “high crimes and misdemeanors” doesn’t mean what it looks like it means.
How’s that?
Anytime anybody looks at that phrase for the first time, there’s a tendency to say, Of course it would have to include a crime. It says “high crime,” or “misdemeanors,” which are a type of crime. But that’s plainly not what it means. The British Parliament invented impeachment starting in 1376 and over the next four centuries up to the time of our Constitution they employed impeachment in a variety of ways under a variety of kings and queens. They never created a statute that said we’ll impeach people for this bad thing or that bad thing. The British were figuring impeachable conduct as they went along — engaging in a common law process of figuring out what impeachment is for. And the British applied “high crimes and misdemeanors” as a term of art for impeachable offenses. Look back at British practice and you’ll see that there were about six different categories of things for which people had traditionally been impeached.
Why did that British phrase end up in our Constitution?
At the constitutional convention, they started debating, What are we going to have impeachment for? And at the end of the summer, they were down to treason and bribery. And [Virginia delegate] George Mason stands up and says, That’s not enough. That doesn’t cover many of the things that people had traditionally been impeached for. We need to broaden it. So they turned to “high crimes and misdemeanors.” The framers were saying people should be impeachable for roughly the same kind of things that the British were impeached for in the past. And they were putting an open-ended term into the Constitution, because human ingenuity doesn’t extend to an absolutely comprehensive list of all the ways in which someone in the future, an official, might misuse authority.
So they adopted a phrase that had grown out of common law, with a definition that stretches back to the 1300s, with the idea and intention that this would be a flexible instrument going forward, for serious misconduct?
Very well put.
Help me understand the president’s alleged behavior in this case, soliciting election interference from a foreign government, in the context of high crimes and misdemeanors.
One of the classes of behavior that, for centuries, has been understood as impeachable is abuse of power. That’s an abuse of authority and power that the office holder legitimately has as part of holding office, but that power is being used wrongfully for an illegitimate purpose.
In this case, there are at least two kinds of power that the president has, either directly from the Constitution or by long practice. First is the president’s authority over domestic law enforcement. The abuse of this power was among the things that Richard Nixon was impeached for. (Nixon left before he was impeached by the full House, but there were articles of impeachment that came out of the House Judiciary Committee.) The second article of impeachment was about exactly this. It’s a complex set of allegations, but it boiled down to that Nixon had misused the FBI, the IRS, the CIA and this small group of folks he hired inside the White House, the “plumbers,” to get dirt on political enemies. And when that threatened to be exposed he misused those agencies or tried to cover it up. It was a classic abuse of power. He had the power to command those agencies to engage in lawful activities, but he misused it.
The analogy to Trump is that part of that phone call [to Ukrainian President Voldymyr Zelensky] talks about getting the attorney general directly involved in getting Ukraine to get dirt on Biden. And also, by the way, this weird conspiracy theory that Trump seems to have bought into — the whole Crowdstrike conspiracy theory — about the supposed disappearance of the Hillary Clinton server, and supposedly it’s in Ukraine. There doesn’t appear to be any basis for any of that. In any case, he talks about having the official law enforcement agencies of the United States to get involved with Ukraine to get dirt on both his former and potential future presidential electoral opponents. That’s abuse of power number one.
The other one, of course, that everyone’s talking about has to do with the second power, foreign policy matters — also military. The president is the commander-in-chief and he is the principal diplomat. And both of those authorities are given to him expressly or impliedly by the Constitution. But what he’s saying to the president of this other country is: We provide a lot of aid to you, some of it military, some of it diplomatic support. And we have the context of Ukraine being on the border of a very aggressive Russia, which has already gobbled up its territory in Crimea. And the obvious demand is, We give you all of stuff, but I need a favor. He says, We give you all this stuff but it’s not “reciprocal.” Trump thinks in terms of bilateral transactions. He’s a very transactional guy. He’s saying, We need something in return. But the thing he wants in return is not something that benefits the United States. It’s something of private benefit to him, electorally. You have classic abuses of two core powers that a president gets by virtue of his office. It’s as plain a case of abuse of power as one can easily imagine.
So abuse of power is a high crime?
Classically, abuses of power are impeachable. It depends on the severity. In the phrase high crimes and misdemeanors, the word “high” was intended to signal that things need to be serious. We don’t remove presidents, in particular, for any misdeed or mistake they may make. There has to be a seriousness. That’s the lesson of the Clinton impeachment. Clinton plainly did commit a crime, multiple felonies. But they weren’t high — they weren’t constitutionally connected to the duties of his office, constitutionally so serious to merit removing him from office.
In Trump’s case, as a categorical matter, the kind of thing that he’s doing in this Ukraine exchange is certainly an impeachable abuse of power. Given who Ukraine is. Given the danger that Ukraine is facing for its very existence. And the crass use of American authority, American power to really threaten our support of a country in that position. It certainly seems to me “high” by any reasonable definition.
You’ve written, in reference to the last president to leave office under an impeachment cloud, that Trump’s conduct makes Nixon’s conduct look “penny ante.” Can you expand on that, comparing Nixon’s predicament to Trump’s.
The “penny ante” line may have been hyperbole. But Nixon’s abuses of authority were smaller than what Trump is doing here. He was doing things like organizing the “plumbers” to go out and commit burglary of Democratic National Committee headquarters at Watergate, to try to rifle their files to get intelligence he could use to the political disadvantage of the Democrats. This is horrible. But all very small and mean, in a sense. There isn’t really an instance where Nixon tries to marshal all of the authority of the United States to essentially extort the government of another country to do his personal bidding. With the implied threat that if they don’t do it, he’s going to be willing to let them fall under foreign domination. That’s like another order of magnitude to most of what Nixon did.
What happened between Trump and Ukraine lacked any justification that it was in America’s national interest. It was just about me. It was just about Trump’s personal obsession about his need to get dirt on his enemies. There was no other policy purpose that was served there. It was not only the phone call. This needs to be investigated further, but it certainly appears that $400 million of potential aid was stalled for reasons that nobody has been able to explain. The reporting is that the order came out of the Office of Management and Budget or someplace with no real explanation — certainly no military or foreign staffing on this thing. And there seems to have been an order that there would be no security cooperation between the U.S. and Ukraine. It stopped. On what conceivable basis? How do either of those choices advance the foreign policy interests of the United States? The most plausible inference from that series of events is that our entire foreign policy, and aid and security cooperation with Ukraine, were being hijacked for the purpose of allowing Trump to get Ukraine to do his bidding, in a private political matter. It’s unprecedented. I can’t think of any parallel example
To the extent that Trump’s GOP allies are saying, This is troubling but I don’t see a crime here, you’re arguing that we shouldn’t get hung up on whether this abuse of power is actually a criminal act. That this kind of abuse of power is what impeachment has always been used for?
Exactly. The it’s-not-a-crime argument is raised every time there’s a significant impeachment controversy involving a public official, throughout our history. The defenders of the official will always make this argument, Oh, this isn’t a crime. And every time, we have to do this process of constitutional education and tell people that it doesn’t have to be a crime. This same argument was raised in the Andrew Johnson case. The same argument was raised with Nixon. The House Judiciary Committee put out a nice freestanding report with Nixon; they address this question squarely and concluded, as pretty much every respectable constitutional observer agrees, that a crime is not required.
Consider it. It would be pretty crazy to suggest that a crime is required. Because if you imagine all kinds of bad things that a president might do that we would want to remove them for, an awful lot of them aren’t necessarily criminal.
I suppose you could easily imagine a scenario where the exercise of military power becomes impeachable. Marshaling U.S. forces is obviously part of the commander-in-chief’s purview. But if that’s done with corrupt intent or to create a political distraction, that could be impeachable. It’s the abuse of legitimate authority that makes it impeachable?
Yes. So there are concerns about the way Trump has used the pardon power. This came up with [former Maricopa County, Arizona sheriff] Joe Arpaio. And folks say, Well, the power to pardon is absolute in the president. That’s true. It is. If the president pardons someone, they stay pardoned. It’s not subject to judicial review. The subject stays pardoned no matter how disturbing the pardon was.
But that doesn’t mean that the misuse of the pardon power is not impeachable. All that tells us is whether we’re in the “abuse of power” category. Because all abuses of power start with the question of whether the president is using a power he has by virtue of his office. The second question is: Is it being used properly. And not all of the abuses of power that are improper are necessarily criminal.
With Nixon, a pattern of activity gave rise to impeachment. There seems to be an impulse among Democrats in the House today to tailor impeachment just to the offense on this Ukraine call. But there’s clearly a pattern of behavior with Trump. The call to Ukraine escalated the kind of behavior with Russia that gave rise to the Mueller report. Mueller also teed up obstruction of justice charges that could be impeachable. Now Trump’s alleged abuse of classification standards for transcripts of his calls with foreign leaders is being called a “cover up.” For impeachment, is it important to show a recurring series of bad behavior, or is best to focus on one episode that is really bad?
Very good question. The existence of a pattern of behavior is certainly something to consider. You look at the first two Nixon articles of impeachment. Both of them are basically pattern-and-practice cases. They just recite instance after instance of Nixon doing things to obstruct justice or doing things that are abuses of his presidential purview. So what the articles of impeachment are saying is that this isn’t just a one-off. This is a guy who is obstructing justice and abusing power over and over again. While any one of these things, though wrong, might not merit removal, the pattern does. It’s entirely appropriate, and certainly there’s precedent, to proceed that way.
Indeed there’s some danger, if you want to impeach somebody, of doing it the other way. In the Johnson case, the real case for impeaching Johnson was a long pattern of obstructing and resisting Congress’ view of how Reconstruction should occur, and how the freed black population should be treated. But what Congress does at the end, because that’s a difficult case in some ways to articulate, is they decided to focus impeachment on a singular issue: That he violated the Tenure of Office Act that required senatorial permission to remove the secretary of war.
He did it. He fired Secretary of War Stanton, so Congress said, “OK, now we’ve got him!” But because the case against him was so narrow, the president was able to mount a lot of defenses against this. And for that reason, and lots of others, impeachment failed.
So while it’s perfectly appropriate to impeach somebody for sufficiently egregious single conduct, it’s often desirable to impeach them for a pattern — because, among other things, we realize that presidents are human. Sometimes they make mistakes. Sometimes they make awful judgments. And particularly for an elected president, with whatever democratic mandate that gives him, we ought to be pretty reluctant to remove somebody. We should be reluctant if it’s just a single error. But we should be less reluctant if what we’ve got is a pattern of flouting law or basic understandings of the way a president ought to exercise his authority.
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