That didn’t take long. It’s time to impeach President Trump. So says California Congresswoman Maxine Waters. She is ready for articles of impeachment barely three weeks into his presidency. Now we may or may not be fans of the President. Staying faithful to the rules of our blog, we take no side on this one. At least not yet. But Congresswoman Waters does a disservice to herself, her constituents, and the country, with talk of impeachment. There is no constitutional basis for it. The Congresswoman would do well to bury herself in the constitution that she took an oath to uphold.
So we will take a look at the impeachable offenses, according to Congresswoman Waters. We see four possible counts, according to the Congresswoman. And we also turn to the Constitution, and history, for a little guidance on what’s required to impeach a president. Is Ms. Waters right? It is already time to impeach President Trump?
Impeach President Trump! Congresswoman Waters’ Articles of Impeachment
We first invite Ms. Waters to the floor of the House of Representatives to bring her indictment against President Trump. For the bill of particulars we draw on her public comments to date:
These are not normal times. We have a president who is creating chaos and division.
[Count 1] – There are so many questions about his conflict of interests. Lies about whether or not he’s separated himself from the businesses he claimed he separated himself from.
[Count 2] – Not showing his tax returns.
[Count 3] – Putting his arms around Putin, defending Putin, working with the Kremlin.
[Count 4] – I want to know was their collusion between Putin, the Kremlin and this president as they hacked our Democratic National Committee.
Now, for the evidence to support these counts:
We have investigations that have already started. This man is questionable. Because we are suspicious, many of us, who he is, where he came from, what his actions are, all of his conflicts. This business of loving Putin and the Kremlin. . . We have to find out more about him. Some of that I think leads to the possibility of impeachment, and I think that’s legitimate to say, given what we know at this point.
Let’s try to avoid cynicism here. Did the Congresswoman nail it? Is it time to impeach President Trump? Let’s take a look.
Constitutional Requirements for Impeachment
Article II, Section 4 of the Constitution provides that the President “shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” There are substantive requirements here. The Senate may only convict for impeachment in three instances: (1) treason, (2) bribery, and (3) “high” misconduct.
The Senate, and only the Senate, defines what a “high” crime is. The Supreme Court has no role here (other than the Chief Justice presiding over the Senate trial). There is little direct precedent, as there have only been two impeachment trials of presidents in our history (Andrew Johnson and Bill Clinton), both resulting in acquittal. The House Committee on the Judiciary approved articles of impeachment on President Nixon, but he resigned before the articles came to a full House vote.
It is clear from the textual language of Article II, Section 4 that not just any old crime will do for impeachment. Treason is self-evidently a “high” crime. It involves action by the President that is essentially war against the country. Bribery involves corruption that goes to the core of our democratic process. It is also self-evidently a “high” crime.
But what else qualifies as a “high” crime? The Senate, of course, must be quite careful here, as impeachment involves the rather critical matter of removal of the people’s president. Removal cannot and should not occur but for serious criminal conduct by the President. A traffic ticket won’t do. Nor will beating his dog. Nor, for that matter in the case of President Clinton, will the crime of perjury do (lying under oath), at least not with respect to a matter that does not involve the office of the presidency. This, the Senate concluded, was not a “high” crime.
Impeach President Trump? – A Little History of Impeachment
President Andrew Jackson was not impeached. And he had killed a man in a duel, which even in his day was a crime (though typically it was not prosecuted).
President Andrew Johnson, who took office on the death of President Lincoln, was impeached. Johnson implemented policies that were feared to favor the defeated Confederacy, and certainly counter to President Lincoln’s policies. Some viewed his actions as treasonous. Yet he, too, was acquitted.
The draft articles of impeachment against President Nixon involved serious allegations in his conduct as President. They included obstruction of justice, abuse of his presidential powers in violation of his constitutional oath, and his defiance of Congressional subpoenas. At least the first two of these three articles involved allegations or legal violations that occurred in the office of the presidency and, if proven, would fairly be seen as “high” misconduct.
Impeachment is obvious a grave affair. A conviction constitutes a nullification of a national election where the people have selected their leader. Whatever the misdeeds are, they’d better be serious – really serious. They must threaten our democracy or the survival of our nation. Articles of impeachment, and an impeachment trial in the Senate, weaken our country and embolden our enemies. Impeachment must not be simply a political tool to remove an unpopular president. Tread carefully, Congresswoman.
So shall we impeach President Trump? Has Congresswoman Waters made her case?
Count One – Conflicts of Interest
Perhaps there are conflicts of interest between the President’s business interests and his role as president. Unfortunately for Congresswoman Waters, this count of the indictment fails as a matter of law. The President of the United States (and the Vice President) is exempt from federal rules that prohibit employees of the executive branch from participating in their official capacities in matters in which they have financial interests. The Congress reached the conclusion long ago that there should be no impediment to the President’s carrying out of his constitutional duties. As a result, the President was freed from legal restraints relating to conflicts with his business interests.1
The Congressional Research Service has described the reasoning as follows:
Because of concerns regarding interference with the exercise of constitutional duties, Congress has not applied these [conflict of interest] restrictions to the President. Consequently, there is no current legal requirement that would compel the President to relinquish financial interests because of a conflict of interest.
Count one fails, as a matter of statutory law.2
Count Two – Failure to Disclose Tax Returns
There is no statutory or other legal obligation that requires the President to disclose his income tax returns. Beginning in the early 1970s, Presidents have released their tax returns to the public, without legal obligation to do so. Count two fails, as the failure to disclose tax returns is not a crime.
Count Three – Working With the Kremlin
We seem to recall another American president who worked quite closely with the Kremlin during World War II. You see, Congresswoman Waters, President’s get to conduct the foreign policy of the United States, and sometimes they have reasons, significant strategic reasons, for the agreements, arrangements, and even alliances they make. FDR thought it was in America’s best interests to align the nation with a man who murdered millions of his own citizens. Stalin was a tyrant by any western standard. But the alliance with him won World War II.
Perhaps President Trump is thinking about working with the Russians in areas of common interest. We think Iran. Maybe he is focused on competition with the Chinese and how to contain them. Conceivably, he may accept President Putin’s many flaws to co-opt Mr. Putin in American efforts vis-a-vis the Chinese. We don’t know. But if he is, it would certainly make sense to use diplomacy to entice Mr. Putin, and diplomacy begins with words.
But whatever it is, the President’s decision to find common ground with Russia is within his constitutional prerogative, at least at this point. Other President’s have worked with more sinister world leaders all throughout American history. We won’t recite the list here.
Sorry, no high crime here either, Ms. Waters.
Count Four – Collusion
On this one, it’s time to get to work, Congresswoman. Develop credible and conclusive evidence that the President conspired with the Kremlin to impact our national election. That would be a “high” crime indeed, going right to the heart of our democracy. Impeach President Trump under those circumstances. We will fully support an article of impeachment if you can prove a conspiracy with the Kremlin. And so will the rest of the country, including Republicans.
Which really gets to the heart of things, doesn’t it. Because the crime alleged must be so “high” that Republicans will go along too. And that’s precisely what the founding fathers intended.