Impeach

by Neal Katyal

  The role of the House is to investigate the president’s conduct and determine whether or not to charge him in the form of articles of impeachment—which means, as part of its duties as the investigatory body, the House can call witnesses.

  But the president cannot easily be compelled to testify under oath. In fact, according to Andy Wright, President Barack Obama’s associate counsel in the White House, only three sitting US presidents have ever testified before Congress, even outside the context of an impeachment inquiry: George Washington, Abraham Lincoln, and Gerald Ford. (At least one other president, Woodrow Wilson, also answered questions from Congress, but he did so at the White House, not on Capitol Hill.)

  The reason so few presidents have testified outside the impeachment context is that they can cite any number of privileges to avoid answering questions under oath, from the privilege against self-incrimination to executive privilege—and stall as those claims are litigated in court. But as I explained in response to Process Question #3, when it comes to removing a president, these arguments often don’t pass muster, since impeachment is not a criminal proceeding. And if President Trump tried to make them, he would face the very difficult political reality of looking like he is afraid to testify and incriminate himself.

  That hasn’t stopped President Trump from trying to decline to participate in the inquiry altogether, but as I explained in Chapter 3, his lawyers’ arguments simply don’t stand up to scrutiny. President Trump, like President Nixon, will ultimately be compelled to honor subpoenas—and comply with any formal requests for information from the House—or be held accountable for the lawless refusal to do so, perhaps ultimately through the impeachment process itself. After all, Article III of President Nixon’s impeachment centered on his refusal to comply with subpoenas.

  Executive privilege, like any privilege, is generally narrowly defined because our system recognizes an overwhelming need for the public to have access to information. But President Trump’s stonewalling, and in particular his invocation of executive privilege, suffers from another serious legal problem: himself.

  All privileges are subject to something called a “waiver,” the idea being that if you air confidential information in public, it’s no longer, well, confidential. In a sense, this is self-evident, but we’ve also never had a president who has so casually waived his privilege. That’s what’s ironic about President Trump’s lawyers’ claims of sweeping executive privilege: Trump endlessly tweets about the very events that are the subject of the inquiries. It was his choice, after all, to disclose the July 25 “transcript,” and it was his acting chief of staff, Mick Mulvaney, who decided to admit a quid pro quo. I understand why his team might not like the result of all his disclosures, but they can’t yell backsies now. It’s too late. And the House is going to get all the evidence related to the disclosures President Trump has made publicly.

  Once the House has conducted a comprehensive investigation, with or without the president’s participation, members draft articles of impeachment and then vote on them. Historically, the Judiciary Committee has voted on the articles first, before they have been sent to the full House for a final vote.

  The House’s role in impeachment doesn’t end there. When the Senate holds a trial on the articles, representatives of the House serve as the prosecutors, presenting the case for impeachment.

  Process Question #5: What does the Senate do? What does the trial look like?

  As soon as the House votes on the articles of impeachment, every senator must swear a special oath, promising to do “impartial justice according to the Constitution and the laws.” Only once they have done so can the Senate transform into a tribunal.

  After the senators take their oath, they hear arguments from the prosecution (“managers” appointed by the House) and from the defense (the president’s lawyers). The chief justice presides over the trial, because the vice president, who normally presides over trials in the Senate, has a clear conflict of interest. But in the end, even though the chief justice is tasked with making some decisions (like determining what evidence is admissible, as mentioned earlier), senators are the judge and jury. Indeed, they can even overrule the chief justice’s decisions by a majority vote.

  As Chief Justice William Rehnquist wrote in a letter after presiding over President Clinton’s impeachment: “On several occasions when asked what I did at the trial . . . I took a leaf out of [the opera] Iolanthe and replied, ‘I did nothing in particular, and did it very well.’”

  Once the senators and the chief justice have heard all the arguments, they vote on each of the articles of impeachment individually. If 67 senators rule the president guilty on even one of the counts, the president is immediately removed from office.

  Process Question #6: Does the Senate have to hold a trial?

  Yes, according to the Senate’s own rules.

  The rulebook reads: “Upon [articles of impeachment] being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered.”

  This language indicates that the Senate has no choice but to conduct a trial. And that’s exactly what they did when the House sent them articles of impeachment in the cases of President Johnson and President Clinton.

  But Senator Mitch McConnell, who is the majority leader of the Senate, could very well disregard this practice. After all, in defiance of precedent, he didn’t even hold a hearing for President Obama’s Supreme Court nominee, Merrick Garland. And while the Constitution says that the Senate “shall have the sole power to try” a president, it never quite specifies that the body must exercise that power. The word “shall” there modifies the word “power,” not the word “try”; in other words, it’s saying that only the Senate can hold a trial to remove a president, not that the Senate is ordered to do so.

  The good news is: Senator McConnell has stated that if the House voted to impeach President Trump, he “would have no choice but to take it up.” But he added, “How long you’re on it is a whole different matter.” With this statement, Senator McConnell seems to be implying that he might rush the impeachment process—and I wouldn’t rule out the possibility of his trying to change the Senate rules to avoid taking up impeachment entirely.

  As McConnell wrote in a fundraising pitch, “The way that impeachment stops is a Senate majority with me as majority leader.”

  He concluded: “Please contribute before the deadline.”

  For Senator McConnell to try to block the evidence from being carefully heard and considered would be a profound dereliction of his job. He would go down in history as one of the most antidemocratic people ever to have served in the United States government. Our founders put the two-thirds voting requirement for removal from office in the Constitution precisely to avoid stunts like this, because they assumed that leaders like Senator McConnell would trust the process and accept that if, after a trial, 67 senators believed the president committed a high crime, then the evidence must be strong enough to prove him guilty. Senator McConnell should let the process unfold and see where the evidence leads. It is his constitutional duty to do no less.

  Process Question #7: What level of certainty is needed for the Senate to convict the president?

  In criminal cases, a defendant can be convicted only if there’s evidence “beyond a reasonable doubt.” That means the jury has to be very sure, far more than 50 percent, that a defendant is guilty.

  In civil cases, by contrast, a defendant can be convicted with a “preponderance of evidence,” which is interpreted to be any level of certainty greater than 50 percent.

  Impeachment is a difficult case because it’s neither a criminal nor a civil trial—and nowhere in the Constitution can senators find guidance on what level of certa
inty they need to convict.

  As law professor Charles Black argues, “Overwhelming preponderance of the evidence . . . comes as close as present legal language can to denoting the desired standard.” But ultimately this is a choice left to each and every senator to decide for themselves.

  Process Question #8: What happens after a president is removed?

  Once the president is removed, the Senate has to decide whether to take a separate vote to disqualify him from holding office again.

  The immediate consequence of the president’s removal, whether a disqualification vote takes place or not, is that the vice president then swears an oath of office and assumes the role of president of the United States. He is also entitled to appoint a vice president of his own, who becomes next in line to the presidency.

  After he completes the prior president’s term, he can choose to run for reelection, and if he wins, he can run for reelection once again. He can also, of course, decline to seek another term.

  If for some reason the vice president is impeached alongside the president, the next person in line to the presidency is the Speaker of the House.

  Process Question #9: How long does impeachment take?

  Who knows? There are no requirements for how long impeachment takes (except of course for the implied deadline of the next presidential election). In the past, impeachment inquiries have ranged in length from Johnson’s impeachment, which took only three days, to Nixon’s, which lasted a full eight months.

  Speaker Pelosi and congressional leadership have reportedly indicated that they would like to move this process along in as efficient a manner as possible, especially given how soon the 2020 presidential election will take place.

  Process Question #10: Can federal courts block an unfair impeachment?

  No, Congress has the final word.

  Walter Nixon was a federal judge in the 1980s with an unfortunate last name. This became especially true when he was impeached and convicted in 1989 for lying to a grand jury and for bringing disrepute on the federal judiciary. Nixon, believing that he hadn’t been tried fairly, attempted to challenge his impeachment in court. His case ended up in the highest court in the land—where the Supreme Court ruled that “the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments.”

  This is in line with what’s in the Constitution, but it’s also simple common sense. Imagine if a president, after being impeached and convicted, brought an appeal of sorts to the Supreme Court, which then put “the impeached and convicted president back in for the rest of his term,” wrote law professor Charles Black. “I don’t think I possess the resources of rhetoric adequate to characterizing the absurdity of that position.”

  Of course, if a president is indicted after he leaves office, courts, including federal courts, are charged with making the final determination as to whether he is guilty of whatever crimes are laid out in his indictment. That’s another reason that the Supreme Court in the Walter Nixon case found federal courts could not have a role in impeachment: “The Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses: the impeachment trial and a separate criminal trial,” the Court wrote. “In fact, the Constitution explicitly provides for two separate proceedings . . . The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments.”

  Process Question #11: What is an impeachable offense?

  As discussed at length in Chapter 1, an impeachable offense is defined by our Constitution as “treason, bribery, or other high crimes and misdemeanors.” Simple, right?

  Well, no, because the precise definition of “high crimes and misdemeanors” was never determined by our founders. And the two most commonsense understandings of the phrase are wrong. High crimes and misdemeanors are not necessarily crimes as defined by criminal codes (after all, if the president decided to nuke Canada unprovoked, that would technically be within his rights as commander in chief but would nonetheless be grounds for impeachment). Nor do all crimes listed in criminal codes qualify as high crimes and misdemeanors (one of the two high crimes enumerated by our founders, bribery, wasn’t even in criminal codes when the Constitution was written).

  But based on discussions at the Constitutional Convention, based on the legal usage of the word “high,” and based on precedent, constitutional scholars have come to something of a consensus as to the definition of high crimes and misdemeanors, which I’ve summarized as follows:

  High crimes and misdemeanors are abuses of public trust, in which the president wields the powers of his office to serve himself at the expense of the people he represents.

  To quote Vice President Mike Pence, “This business of high crimes and misdemeanors goes to the question of whether or not the person serving as President of the United States put their own interests, their personal interests, ahead of public service.”

  In Federalist No. 65, Alexander Hamilton provided a similar definition for impeachable offenses, defining them as “those offenses which proceed from . . . the abuse or violation of some public trust . . . as they relate chiefly to injuries done immediately to the society itself.” This is the definition I’ve adopted throughout this book.

  Process Question #12: What does it mean to be a whistleblower? What rights and protections are they afforded?

  Whistleblowers are members of an organization who observe wrongdoing and receive protection in exchange for revealing it.

  As I wrote in Chapter 2, inspired by America’s first whistleblowers, Samuel Shaw and Richard Marven, our country has had protections for whistleblowers in place since 1778—nearly a decade before the Constitution was written. Throughout the more than 240 years since, whistleblowers have enjoyed largely bipartisan support.

  When I was fighting the MacLean whistleblower case, as I noted in Chapter 2, a bipartisan group in Congress, including Senator Chuck Grassley and Representative Darrell Issa, came together to tell the Supreme Court that “whistleblowers play a vital role in Congressional oversight of the federal bureaucracy.” They concluded: “Congress thus relies on individuals working within agencies to supply the information it needs to guard the public purse and give effect to the checks and balances that are essential to the separation of powers. By blowing the whistle, those individuals perform an invaluable public service.”

  President Obama and Congress built on existing whistleblower protections to devise policies designed specifically to protect executive-branch whistleblowers in the intelligence community and ensure they would not become victims of retaliation for disclosing information. That way, if anyone saw misconduct in the executive branch, they would feel free to report it.

  By contrast, President Trump called the whistleblower in the Ukraine matter “close to a spy” and suggested that “in the old days” spies were “handled” differently. (For context, as I’ve noted, they were executed.)

  Process Question #13: Should we expect the whistleblower to come forward and reveal their identity if they want us to take their allegations seriously?

  No. Whistleblowing is designed to be an anonymous process—which is why, under existing laws, the inspector general may not disclose a whistleblower’s identity without that person’s consent. In fact, the director of national intelligence revealed during his testimony before the House Intelligence Committee that even he does not know the identity of the whistleblower.

  There’s a clear reason for this: even with the legal protections in place, whistleblowers are often punished when their identities are revealed. In some cases, they are fired or demoted. In others, they are forced out of government entirely. I can tell you from defending whistleblowers that it is a lonely existence. You lose some of your friends and possibly even your family. It’s typically much easier to keep your head down and mind your own business.

  This whistleblower, in particular, has special reasons to fear being outed, since the president has launc
hed a series of personal attacks against him, saying that he should be “exposed” and “questioned,” accusing him of being a partisan, labeling him a “spy,” and saying that we should “handle” him “like we did in the old days,” a comment many, as I’ve noted, believed was a reference to execution.

  The whistleblower may very well reveal who they are, but with attacks like these coming from the most powerful human being on earth, I understand why the individual would feel safer without being identified and exposed on television, in newspapers, and on social media.

  Process Question #14: Can the president be sent to prison through impeachment?

  Yes and no. The Senate cannot issue any sentence other than removing the president from office, but once he has been removed, he is just a regular citizen of the United States and subject to the same laws as everyone else. So if he is charged with a crime and convicted of it after leaving office, he can indeed go to prison. In fact, the Department of Justice memos that preclude the indictment of a sitting president, mentioned in Chapter 3, expressly say that once a president has been impeached, he is subject to criminal prosecution. This could come in the form of a federal criminal prosecution or even a state criminal prosecution, and reporting indicates that various state governments are already investigating individuals and entities associated with Trump. (For instance: Trump seems to be an unindicted co-conspirator, aka “Individual No. 1,” in the Southern District of New York’s campaign finance charges against the president’s former lawyer Michael Cohen.)

  There is a caveat, however: the pardon power. A president can’t pardon himself if the Senate rules him guilty of an impeachable offense, because Article II forbids pardons in cases of impeachment. But his successor can pardon him with respect to criminal activity, and we have an example of that. In an attempt to bring about unity after President Nixon’s impeachment, President Ford pardoned his predecessor. That means that President Trump could very well be pardoned for any crimes he’s guilty of by a subsequent president—perhaps even before he’s been charged with such crimes. Of course, that would not inure him to prosecution for any crimes he may commit after the pardon.