In the first part of this series, I concluded that the “president cannot obstruct justice when he exercises his lawful authority that is vested by Article II of the Constitution.” For purposes of either a criminal conviction or an impeachment trial, I wrote, “the question of whether the president obstructs justice will turn on whether his actions are supported by Article II itself.” That is, whether they are “lawful.” This entry will elaborate on this principle, and respond to questions raised by Benjamin Wittes’s careful and insightful analysis. Specifically, part II will address how the Constitution’s negative limitations on Congress’s powers and positive vestings of power in the president both limit the scope of what can constitute “high Crimes and Misdemeanors.”
The Negative Limits on “High Crimes and Misdemeanors”
The Constitution is often described as a charter of negative liberties. That is, the Constitution does not afford people positive rights, but merely prevents the government from infringing such pre-existing freedoms. The quintessential example is the First Amendment, which does not bestow on people the “freedom of speech,” but merely provides that “Congress shall make no law … abridging the freedom of speech.” And though framed in terms of Congress’s lawmaking powers, the First Amendment is understood to apply to all facets of state action in all three branches of government.
Another such blanket restriction on all three branches exists within Article VI, which provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This clause, which applies to all appointed and elected federal officials, concerns two possible junctures. First, Congress could not refuse to confirm a nominee an office because of his or her religious beliefs (for example, if the “dogma lives loudly” in a judicial nominee). The clause also applies on the back-end, in that the Congress could not impeach or remove an officer in the executive or judicial branches because of his or her religion. That includes the President. In no sense could Congress conclude that the free exercise of religion amounts to a “high Crime and Misdemeanor.” Because the 1789 Constitution was ratified without a free exercise clause, the religious test clause imposes a straightforward constraint on Congress’s power to remove appointed and elected officers. In this sense, the religious test clause imposes a negative limit on the scope of what can constitute a “high Crime” or a “Misdemeanor.”
Consider another hypothetical. Could the president have been impeached in 1789 for engaging in unpopular speech? We know that members of Congress could “not be questioned” for their “Speech or Debate” in the Congress (but not outside). At that time, no such protection was afforded to the president or other officers. That calculus, would change two years later with the ratification of the First Amendment. The prohibition against “abridging the freedom of speech” imposes a negative restriction on all of Congress’s authority, and not just its lawmaking authority. The president could not be removed from office for engaging in speech that is otherwise protected by the First Amendment.
For example, Wittes contends that the president could be impeached if he “showed up at the State of the Union, announced that his contempt for Congress knew no bounds and proceeded to scream obscenities for an hour in Ancient Greek.” This hypothetical is not dissimilar to the tenth article of impeachment lodged against President Johnson, which charged him with “attempt[ing] to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States … with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces.” (This is an accurate description of @RealDonaldTrump.)
As history recounts, Johnson was acquitted on this charge—as he should have been. Of course, a vote to impeach or remove a president is not subject to judicial review, but the oath that members of Congress take to the Constitution should and does mean something: They should not take actions that contravene the Constitution, including the Bill of Rights. They could no more punish the president for engaging in unpopular speech by passing a statute, then by removing him from office for doing so. Indeed, of all places—the president’s constitutionally delegated responsibility for assessing the “state of the union” would call for his candid opinion about current events. Highly inappropriate and misplaced? For sure. High crime and misdemeanor? No way.
Additional negative restrictions would also extend from the panoply of protections in the Bill of Rights. For example, an officer could not be removed from office for refusing to self-incriminate (Fifth Amendment) or seeking the assistance of counsel in a criminal prosecution (Sixth Amendment). Whatever “high crimes and Misdemeanors” means, it cannot include conduct that is itself protected by the Constitution; such would be an internal contradiction. Or, to frame it in modern doctrine, it would amount to an unconstitutional condition: punishing a person for exercising a right protected by the Constitution.
These same negative restrictions would also have to apply to Congress’s expulsion power. Article I, Section 5, provides that “Each House [of Congress] may determine the Rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds, expel a member.” Congress could not expel a member for conduct that is expressly protected by the First Amendment. (Note that the Speech or Debate clause only privileges speech that occurs within the Congress.) Whatever “disorderly behavior” means, it cannot include conduct that is itself protected by the Constitution.
The negative restrictions also operate in a different way: If the president acts to violate someone else’s constitutional rights, such actions are not within his Article II powers. Thus, it is not a “lawful” exercise of his authority. Consider another example offered by Wittes: “if the President publicly ordered the FBI to only investigate Jim Comey and Hillary Clinton and Rosie O’Donnell from now on.” Such a malicious prosecution would deprive this trio of their life, liberty, and property, without due process of law. It is true that the president has ultimate supervision over federal law enforcement and can direct the husbandry of resources within the Justice Department, but such a selective persecution cannot comport with the law of the land. This action would amount to a “high crime and misdemeanor.” For the president, at least, the violation of someone’s constitutional right runs afoul of his oath to “preserve, protect and defend the Constitution of the United States”—a per se ground for impeachment.
The Positive Limits on “High Crimes and Misdemeanors”
The impeachment clause applies to “The President, Vice President and all civil Officers of the United States.” As I’ve discussed elsewhere, the phrase “civil Officers of the United States” refers only to appointed officials in the executive or judicial branches. Such “civil Officers of the United States” can only seek refuge in the Constitution’s negative restrictions on the impeachment power. Only the president and vice president are afforded additional safe harbors due to the Constitution’s positive vestings of authority in their offices. These additional fonts of authority further contract the scope of “high Crimes and misdemeanors.” That is, if the Constitution expressly grants the (vice) president the power to do X, then X cannot be a ground for removal. Stated differently, by vesting the president or vice president with the power to take a certain action, the Constitution necessarily removes that same action from the universe of possible “high Crimes and Misdemeanors.”
This principle, however, does not mean that the president or vice president is immune from removal for taking some action that is authorized by Article II, even absent allegations of treason or bribery. Rather, as I explained in my first point, “the lawful exercise of an Article II power—whether signing an executive agreement or vetoing a bill—does not give rise to an impeachable offense.” The key word is “lawful.” The question of impeachability thus turns on whether in fact Article II affords the president the authority to take some sort of action—that is, has the president acted lawfully.
Consider an example: Congress passes a law requiring the president to receive the ambassador from a newly-declared republic. The president refuses to do so, citing his Article II authority to “receive Ambassadors and other public Ministers.” The duty to “take Care that the Laws be faithfully executed” presumes that the “Laws” themselves are constitutional. Unconstitutional laws do not need to be, and indeed, cannot be executed, consistent with the president’s oath of office. In this hypothetical, the president determined that the reception law was not lawful—this is an easy call—and declined to execute it. The president cannot be impeached for doing so, because this would be a lawful exercise of his enumerated Article II powers.
This analysis becomes much tougher when it is debatable whether the action itself is “lawful.” Consider the most famous such conflict. Through the Tenure of Office Act, Congress required the president to seek senatorial consent before removing the secretary of war. President Johnson, citing the “power and authority vested in the President by the constitution and laws of the United States,” removed Edwin M. Stanton—Lincoln’s holdover secretary of war—without seeking the Senate’s consent. In effect, he disregarded the Tenure of Office Act because he found it to be an unconstitutional interference with this executive power of removal. (A power that is not actually enumerated in the Constitution; it is understood to derive from the appointment power and the take-care clause.)
While Johnson cited his authority under the Constitution as the basis for Stanton’s removal, the House cited the same Constitution as the basis for his removal. The first article of impeachment provided that Johnson, “unmindful of the high duties of his oath of office and of the requirements of the Constitution, that he should take care that the laws be faithfully executed, did unlawfully, in violation of the Constitution and laws of the United States, issue an order in writing for the removal of Edwin M. Stanton.” Doing so, the article concluded, rendered Johnson “guilty of a high misdemeanor in office.” Johnson’s suspension order, and Congress’s first article, are thus mirror images of each other.
Who had the correct interpretation of the Constitution? In 1926, the Supreme Court ruled in Myers v. United States that President Johnson was correct, and the Radical Republicans in Congress were wrong: The Senate could not impose this restraint on the president’s removal power. From a departmentalist perspective, Chief Justice William H. Taft’s unanimous opinion does not provide a definitive resolution, but, by virtue of the Johnson’s narrow-acquittal, the Senate’s practice confirms that holding.
Here Article II imposed a positive constraint on what constitutes a “high misdemeanor,” notwithstanding the Tenure of Office Act. (Note that in 1868, the Senate use different terminology, distinguishing between a “high misdemeanor” in the first article—one of a purely constitutional nature—from a “high crime” in the sixth article, which consisted of “possess[ing] the property of the United States at the War Department.”) Despite the presence of a statute which prohibited the president from taking certain actions, the president’s vested authority, which was exercised lawfully, prevailed over that statute for purposes of an impeachment trial.
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Part III of this series will consider whether the crime of “obstruction of justice” was constrained by the Constitution’s negative and affirmative limits, as applied to Presidents Richard Nixon, Bill Clinton, and Donald Trump.
Cross-Posted at Lawfare