Impeachment myths

As the House Intelligence Committee begins impeachment hearings on Wednesday, I am struck by how many falsehoods are being uttered about what the Constitution requires.

The Constitution does not require that there be a criminal act in order for the president to be impeached. The Constitution provides that the president may be impeached for "treason, bribery, or other high crimes and misdemeanors." Although "treason" is defined in the Constitution and "bribery" by federal law, there is no legal definition of "high crimes and misdemeanors." Then-Congressman Gerald Ford said that high crimes and misdemeanors means whatever a majority of the House of Representatives and two-thirds of the Senate says it means.

Of course, this is true, but it also is possible to interpret this language in the same way as any other words in the Constitution. It is clear from its context and from its history that "high crimes and misdemeanors" was meant to refer to a serious abuse of power. Alexander Hamilton, for example, said that this was about "the misconduct of public men, or, in other words, from the abuse or violation of some public trust."

In other words, an illegal act is neither necessary nor sufficient to be a high crime and misdemeanor. A crime that does not involve abuse of public trust should not be regarded as an impeachable offense. But an abuse of public trust, even if it is not a crime, would be a "high crime or misdemeanor."

There have been three serious efforts to impeach a president. Andrew Johnson was the first president to be impeached. He was impeached in 1867 for firing Secretary of War Edwin Stanton in violation of the Tenure in Office Act. After the end of the Civil War, Congress became increasingly frustrated with Johnson, a Southerner from Tennessee, presiding over Reconstruction.

Congress adopted the Tenure in Office Act of 1867 to keep Johnson from firing Lincoln's cabinet. The act declared that such a firing would be deemed a "high misdemeanor." The Supreme Court subsequently indicated that the Tenure in Office Act violated separation of powers. Nonetheless, the House impeached and Johnson avoided removal by just one vote in the Senate.

The second serious attempt to impeach a president occurred in 1974 and was directed against Richard Nixon. The House Judiciary Committee voted three articles of impeachment. One was for obstruction of justice in connection with the Watergate cover-up; one was for using government agencies, such as the FBI and the IRS, for political advantages; and the final article was for failing to comply with subpoenas. Before the matter could be considered by the entire House, Nixon resigned.

President Bill Clinton was impeached by the House of Representatives in 1998, but the Senate did not convict him. President Clinton lied under oath during a deposition when he said: "I have never had sexual relations with Monica Lewinsky. I've never had an affair with her." The House of Representatives, voting almost entirely on party lines, impeached Clinton for perjury before a grand jury and for impeding the administration of justice. The Senate did not convict on either count and President Clinton finished his term in office.

Perhaps most of all, these incidents show that there is no legal definition of what constitutes a high crime or misdemeanor, and the answer in Congress always is likely to be political.

There does not have to be a "quid pro quo" for it to be a serious abuse of power. There is little factual dispute over the primary focus of the impeachment inquiry. In a conversation with Ukrainian President Volodymyr Zelensky about the United States giving Ukraine $400 million in military aid, President Trump said, "I would like you to do us a favor though." According to the testimony received in the first phase of the House hearings, this was part of a larger plan to pish Ukraine to investigate Joe Biden and his son, Hunter Biden.

Repeatedly, the president and his supporters have said that there was no quid pro quo. But none is needed for it to be an impeachable offense. The question is whether the president using the powers of the office for his political gain should be regarded as a serious abuse of power, regardless of whether one concludes that this constitutes a quid pro quo.

But it should be remembered that none other than White House Chief of Staff Mick Mulvaney said that this was a quid pro quo and said everyone should "get over it." Subsequently, Mulvaney tried to back away from this statement, but many witnesses at the first phase of the impeachment hearings made clear that they perceived a quid pro quo.

It is hard not to see it that way. If an employee came to my office seeking a raise and I said I would consider it, but "I need a favor though", any court would perceive that request as a quid pro quo.

The president is not entitled to due process in the impeachment process. A favorite claim of President Donald Trump and his supporters is that he is being denied due process. There is no basis for such a claim. To begin with, due process applies only if a person is being deprived of life, liberty, or property. It is dubious that "life, liberty, or property" is involved, but even if there is, House impeachment hearings certainly don't deprive President Trump of any of those interests. No matter what the House Judiciary Committee and even the House of Representatives decide, nothing is taken away from President Trump.

In many ways, the House of Representatives functions likes a grand jury in a criminal case. An impeachment often has been liked to an indictment. As with the grand jury, the House is deciding whether there should be a trial. But the usual requirements of due process never have been found to apply at the grand jury stage precisely because there is no deprivation at that point. In fact, grand jury proceedings in many ways are the antithesis of due process: only the prosecution is present; the defendant is not allowed to call witnesses or present evidence; everything is done in secret.

The resolution passed by the House of Representatives actually does provide procedures that would meet the requirements for due process. The proceedings will be in public. Both Democrats and Republicans will ask questions of every witness. Of course, the House and its committees should treat President Trump fairly, but the constitutional requirement of due process of law has no application.

The president has no right to confront his accusers and to know the identity of the whistleblower. This, too, has been heard from the president and his supporters: that the confrontation clause of the Constitution applies and that this gives a right to know the identity of the whistleblower who first came forward.

But the confrontation clause applies only in criminal proceedings. Impeachment and removal proceedings are not criminal proceedings in any way. The Constitution is clear about this: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

Federal law protects the secrecy of the identity of whistleblowers precisely so as to encourage them to come forward. From all we know, this whistleblower exactly followed the procedures created by federal statutes and is entitled to the anonymity assured by the law. Although Republicans are claiming that the proceedings are illegitimate without the appearance of the whistleblower, there is no legal basis for this claim.

Conclusion: The Constitution says remarkably little about the proceedings to be followed with regard to impeachment. It says that the House has the sole power to impeach and that impeachment by it requires a majority vote. If there is an impeachment, there is a trial in the Senate. If the president has been impeached, the chief justice of the United States presides over the Senate trial. It takes a two-thirds vote of the Senate to remove a person from office.

But that's it. The procedures to be followed are very much left to the House and the Senate. We thus all should be skeptical as pundits and the president opine on what the Constitution requires in impeachments. 