Gene Healy on Impeachment

Studying the founders is a good antidote to hysteria

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Bob Zadek: Whenever I have a conversation with anybody about anything, I want to rush past what you think, to why you think it. That is juicy stuff. Well this morning, if I hold myself to the test about why I think what I do on the subject of impeachment — I don’t have a clue. Impeachment has me stumped.

I don’t know if impeachment should be hard or if impeachment should be easy. I don’t know what the phrase, “bribery, treason or other high crimes and misdemeanors” means. I have a vague sense from studying history, but I’m not positive that I’m right.

Once I nail down what it means, I don’t know if Donald Trump committed an impeachable offense. I don’t know if the Senate should call witnesses or just have a speedy discussion and a vote. In short, I don’t know why I think anything or even what I think.

Well, when I can’t figure out the answers, I do what anybody would do. I go to the mount and invite somebody on the show who can help me (and hopefully all of us) figure out what’s right and what’s wrong, what should happen, who are the heroes, who are the villains. I’m happy to welcome back my good friend and colleague Gene Healy.

Gene is vice president of the Cato Institute, the premiere libertarian free market think tank in America — an organization that I support as very best that I can. I love the work of Cato. Gene has been on the show several months ago when he published his new report, Impeachment: The Indispensable Remedy, which kind of tells us how he feels. I invited Gene back this morning because he published a fascinating and wonderful article — a must read — which I can summarize as “don’t freak out about impeachment — it’s no big deal.”

So Gene, gives us a hint about how you feel about impeachment. Welcome back to the show this Sunday morning.

Gene Healy: Thanks for having me on again, Bob.

Rethinking Impeachment Doom and Gloom

Bob Zadek: Gene, your most recent article a must-read. It’s wonderful, it’s humorous, it’s insightful, it’s historically accurate and I dare say it puts impeachment into its proper perspective. What is the premise of the article which I entitled “don’t freak out?” What is the point you wished to make in the article why do you wish to make it?

Gene Healy: I guess I wanted to throw cold water on all the hysteria over impeachment. You see it on both sides of the aisle. Pelosi has her caucus wearing black. It’s a somber, sad day. The Republicans act as though the sky is going to fall because we’ve taken this step. The “grievous step,” some of them called it, to put the President on trial. On the rare occasions when we do have a serious debate about this, and the last time was over 20 years ago, you get all of this agonizing over the process. People act like the framers wired the doomsday device into the Constitution. If you look at our historical experience with presidential impeachment, none of these scare stories turn out to be true.

It is not that disruptive.

It doesn’t, unfortunately, paralyze government.

It doesn’t wreck the economy.

It’s really not a national trauma.

It’s rarely done any serious harm. On at least one occasion, in 1974, it’s done a lot of good. If anything, we should be less angsty and emotional about this process. I think the extent to which we treated as a world historical earth-shaking and emotional event is itself a reflection of the cult of the presidency and the outsized importance that we place on that office.

Bob Zadek: A lot of Republicans and pundits have been using the phrase “coup d’état” — like somebody’s head is going to be on a pike in Paris somewhere.

It struck me that a coup d’état is kind of ineffective if somebody picked by the President and of the same party then becomes president. I’m not sure a lot changes would happen if Donald Trump is replaced by Mike Pence. But there has been a lot of discussion about impeachment as a political process, not a criminal law process and that impeachment is undoing the will of the people manifested by an election.

Should impeachment be looked at as a political process? Nothing other than another notch up from the House or the Senate censuring the president? Is it political? What frame of mind should we have? Political, or criminal?

Gene Healy: It is part legal and part political. It is partly legal because the Constitution doesn’t say you can remove a president every time you have a majority in the House and a super majority of the Senate.

It sets out the standard in Article II Section four, which is “treason, bribery or other high crimes and misdemeanors.”

Article II, Section 4.

“The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

You need a theory of what that phrase means. Even if the Supreme Court, despite what President Trump and Alan Dershowitz seem to think, is never going to rule on whether something was a high crime or misdemeanor or not, it’s still important to try to figure out what that means. So that’s the legal part. The political part is that once you’ve decided that something is an impeachable offense within the meaning of the constitutional language, it doesn’t solve all your problems.

The legal part can tell you what is an impeachable offense. Would obstruction of justice be an impeachable offense? I think the answer would be “yes.”

Richard Nixon had articles of impeachment about obstruction of justice. He was driven from office.

Bill Clinton was impeached for obstruction of justice. But that doesn’t answer whether it’s necessary, prudent, or good idea, to remove the President and in the Clinton case the Senate decided it wasn’t. There were all sorts of prudential judgements and frankly partisan political judgements that go into answering the politics part of it. So it’s a mixed operation of law and politics.

One thing I think it is not though, and this is pretty clear from the historical record, it’s not a criminal process. It doesn’t require a crime. Crimes are neither necessary nor sufficient to making out an impeachable offense. So long winded answer there, sorry, but I would say it’s a mix of law and politics. The law part doesn’t answer everything. But in the main, it’s not a criminal law analysis.

Impeachment from a Historical Perspective

Bob Zadek: History shows us that it’s not limited at all to a crime. The first federal official to be impeached, Pickering, was impeached because he was drunk a lot and kind of just a loser as a judge. But mostly he was drunk and abusive to those who appeared before him. And in 1804, our young country decided that was sufficient to impeach. And since it was pre-prohibition being drunk was not a crime, but he was impeached nevertheless. Our founders were all around in 1804, except Washington, who died 1799, but our Founders were around. If they felt that that was not sufficient grounds for impeachment, they sure kept it to themselves.

So, I think that is a hundred percent correct. But on the issue of an impeachable offense, there is a word that is kind of slurred over. It is passed by in the constitutional phrase. “Treason, bribery, and “other” high crimes and misdemeanors. Some observers believe that “other” means whatever follows high crimes and misdemeanors have to be at the same level as treason and bribery because it says treason, bribery or other, which means “more like that,” meaning other high crimes and misdemeanors. It’s not a big point, but I just wanted to mention it. Any thoughts on that Gene?

Gene Healy: Sure. I don’t disagree with that. It’s an old Canon of construction. I can never pronounce the Latin for it. But yes, whatever follows treason and bribery has to be at that has to be like reason or bribery, but you have to decide what it means to be like treason or bribery. Does it have to be as if the president was in the pay of a foreign government? It doesn’t seem that the framers interpreted the language like that because a treason, bribery etc, is different from showing up to work drunk and ranting like a maniac from the bench in the case of judge Pickering, which was considered an impeachable offense. I think that high crimes and misdemeanors, like treason or bribery, are behaviors that demonstrate the person’s unfitness for office.

It’s not that high crimes and misdemeanors have to be grave betrayals in the sense that a conviction for treason would require, but they have to be behaviors that demonstrate the person has violated the public trust and cannot be trusted with high office. If you look at the first few impeachments attempts contemporaneous with the founding, the one after the shortly after judge Pickering involved the Jeffersonian trying to impeach a Supreme Court justice, justice Chase. Justice Chase’s offenses were essentially being an extreme partisan Federalist as a sitting Supreme Court justice.

IMPEACHMENT HALL OF FAME: The three presidents to be impeached in the modern era.

So, you look at the early cases and you don’t get any kind of a pattern where the framers are interpreting that language to mean only things that are like treason in that the President is in the pay of a foreign government. It is a much broader range of offenses and that is also consistent with the English practice where the framers borrowed that phrase “high crimes and misdemeanors” from.

Bob Zadek: In your article “Don’t freak Out About Impeachment,” you make the point that chief executives of major corporations are routinely fired. They have enormous power, they control lots of wealth, they affect the lives of lots of people, and they get fired routinely. The enterprise moves ahead smartly as if nothing dramatic has happened.

You make that analogy to firing somebody, and point out that it is no big deal:

Donald Trump became famous and maybe wouldn’t even have become President, but for the two words in the apprentice, “You’re fired.”

So if ever there was a case of being hung on your own petards, whatever the heck a petard is, this is it.

Gene Healy: That’s how we should look at it. It is an imperfect analogy, but it’s closer than the others that have been offered. Former UN ambassador Nikki Haley called the impeachment the “death penalty” for a public official — as if he is taken out and shot in the head instead of just losing his job.

America, more than practically any other developed democracy, has employment at will. We’re comfortable with the idea of firing people. We read the business section sometimes about CEO firings and we enjoy them. We’ve made this a show that Donald Trump hosted for 14 seasons that was based on the idea of firing people as entertainment.

But when we get up to the most important job in the country, one where you are able to do an enormous amount of destruction, the rule we’ve adopted implicitly is that a person only gets fired if they get caught in the middle of committing a felony with a smoking gun.

That’s not what the Constitution requires and I think it is really unhealthy to make this — the most dangerous job in terms of the destruction that it can do in America — into a job with the most job protection.

The Constitution, unlike in England where you could, as a result of an impeachment process, be imprisoned or even executed, the Constitution limits the punishment resulting from impeachment to a removal of office and possibly disqualification of future office. So yeah, we should look at this more as a high-profile firing.

Impeachment: A Lower Bar than Criminality?

Bob Zadek: Another way to put the process in context is that one can accurately conclude that impeachment is not primarily punitive to the office holder, the President. It is an act to protect the country. Most of the founders concluded the bottom line, if you will, is that the impeachable offense ought to be a breach of the public trust: The President did something to harm the country, and the country, for its own protection, needs to be insulated from more harm from the miscreant, the President, who breached the trust.

So if we look at it as “what is good for the country?,” rather than “let’s punish the son of a gun!” it puts it in a healthier context. The impeachment is what is good for the country with the reason for the impeachment being some discernible act, not just a general unhappiness with the President. I don’t like the analogy to criminal law because the primary focus is to punish a bad actor.

Gene Healy: The reason that you have to meticulously prove every element of a statutory offense in a criminal trial is because that ends with the person’s loss of liberty — in the extreme, maybe even their life. So they get a lot of due process there.

Impeachment is a broader inquiry that results in loss of a job. So, the arguments that we’ve seen from the Republicans about Constitutional due process, particularly at the house inquiry stage are just plain wrong.

In fact, even if you treat the impeachment stage, the House stage as analogous to a grand jury in some sense, grand jury defendants do not get the right to call witnesses or confront their accuser or anything like that. That comes in during the trial. I think there’s something to the idea that the point is not condemning an individual bad actor and punishing him by loss of liberty. The point is identifying someone that is unfit for office and removing them from power.

Bob Zadek: The premise in both your book and in your article is of course that impeachment perhaps wasn’t used enough, and in your article you claim it is no big deal. Are you in favor of George Mason’s idea that maladministration can result in impeachment? George Mason proposed this lower standard but Madison rejected it.

Gene Healy: On the maladministration issue, yes there is this exchange between George Mason and James Madison at the Constitutional Convention, where Mason is talking about the Warren Hastings trial that had just begun in England. He thought we should add and maladministration to treason and bribery. Madison objected, and said it was too broad a standard. They end up with high crimes and misdemeanors and that’s what we have now.

I think people make much too much out of that exchange. The framers rejected maladministration as a ground for impeachment. No, here’s this exchange that nobody who ever ratified the Constitution saw, because Madison’s diaries and notes on the Convention weren’t revealed for at least 50 years after that. There’s this language, high crimes and misdemeanors, which in British practice included maladministration.

Then there’s the fact that James Madison himself, after the Constitution is ratified, says several times that certain kinds of maladministration are impeachable. I wouldn’t put it in terms of lowering the standard. I think the Constitutional standard includes, properly understood, forms of gross mismanagement. Now it’s not an ordinary run of the mill negligence, or not being able to do a great job because, in fact, it’s an impossible office because it’s too big for any one person. But I think some forms of maladministration or gross negligence are included in high crimes and misdemeanors.

I think we should be less emotional about the prospect of impeaching the president. In parliamentary systems, maybe because we combined head of state and head of government, but the British do not undergo a national trauma if Theresa May has to quit or David Cameron has to quit or Margaret Thatcher is forced out by her own party over a long weekend. In parliamentary systems, people tend to look at the head of government as more of a public servant, not some living God-Emperor who embodies the national spirit. I think we should look at it more like that. It’s not a tragedy for the company if the CEO is replaced. It’s not a tragedy for the country.

“Now it’s not an ordinary run of the mill negligence, or not being able to do a great job because, in fact, it’s an impossible office because it’s too big for any one person …In parliamentary systems, people tend to look at the head of government as more of a public servant, not some living God-Emperor who embodies the national spirit.”

Bob Zadek: I admit, I ache for that aspect of a parliamentary system. The only difference is the Prime Minister is not directly elected by the people like our President is, so it’s one branch of government undoing the will of the people –that may be the major distinction.

Now, Gene, we discussed the exchange between George Mason and James Madison at the Constitutional Convention. But there is a question: I wonder if a discussion of impeachment with reference to the founders in 1787 and 1788 is not that relevant.

Here is my point:

The presidency, as drafted, created a chief executive, which had specific powers in the Constitution. They were very few in number. The President didn’t have anywhere near the power the imperial presidency has today. To what extent was the founders’ view of impeachment affected by the relatively lessened power of the president? Would the founders have felt the same about impeachment if the President was as powerful as it is today?

Gene Healy: It is tough to put yourself inside the mentality of the framers and decide what they would conclude, but I can say that as limited as the office was, they were still particularly concerned about impeachment as a remedy for a presidency that goes wrong.

The bulk of the discussion at the Constitutional Convention about impeachment is with reference to the presidency. The longest debate on the impeachment power is entirely with reference to the impeachment of the presidency. Madison addresses this at least obliquely in that he talks at that debate about how important it is to have an impeachment remedy for the presidency. One of the reasons he says it’s indispensable is that the presidency is the one office that they have set up that is headed by one man.

He says that if a judge goes wrong or a congressman or two are corrupt, they can be drowned out by the multiplicity of members. When it comes to the office of the presidency, however, it’s run by a singular individual. So he says that incapacity or negligence in that office could be fatal to the Republic.

So it seems to me that this view of the office being uniquely dangerous because it’s headed up by one person, then it only becomes even more compelling when the office gains all the vast new powers it’s gained over the course of more than a century. This is also something that crops up in impeachment debates now. I’ve seen law professors say, “Too much depends on the office of the presidency. You can’t remove the President because the presidency itself has become so indispensable and so important.”

It seems to me that that cuts the other way. We can survive a crooked federal judge. We can survive even a crooked cabinet secretary or an underperforming one. But with one official that has nuclear weapons and in control of the federal law enforcement apparatus, if that person is unfit it’s a continuing danger.

Bob Zadek: You mentioned the discussion at the time of our founding and most of the impeachment discussion was about the President. I think that’s because there weren’t that many federal officials other than the House and Senate, and they can’t be impeached because each body runs itself.

Gene Healy: They were envisioning a judiciary. The only thing is in that discussion, Madison at least is not clear on the fact that impeachment doesn’t apply to Congressman and senators. That’s something that was decided pretty much in the first impeachment. The first impeachment in 1797 was Senator William Blount. In the Senate trial, there is no vote of conviction basically because they said they didn’t have jurisdiction because a Senator is not one of the civil officers in the United States who can be impeached.

But at the time Madison didn’t seem crystal clear on that. Madison mentions the possibility of impeaching Congressmen. Federal judges were certainly in, in the mix. So it is a remedy that they extended further than just the President. It seems to me a little bit odd that there is so little discussion of other civil officers. It seems to me that even with the weak presidency they designed, some of them were aware that it could be a source of mischief.

Bob Zadek: In extrapolating the views of the founder, and applying those views today, the President was not popularly elected. Impeachment, in the eyes of the founders, was not undoing the will of the people. The President was elected by a truly independent body, although it never really worked. The theory was the electoral college was kind of an independent body, much like the Senate is independent or the House. When the Senate passed legislation it was voted on by the state Houses.

So impeaching the president was not undoing the will of the people at the time of the founding. It was undoing the will of the electoral college, which is a very different deal.

We look to the founders for guidance, but the country that existed when they wrote the Constitution is different than the country we have today, politically. Sometimes I wonder whether those views really translate from 1787 to 2019.

Gene Healy: That’s right. At the time, the body with the clearest democratic pedigree was the House. There was at least the hope that the electoral college would be a filtering mechanism that would elevate the best characters.

I would point to something else though: The President picks his running-mate and they run on the same ticket. So it is absolutely not a coup because the President is replaced by Mike Pence, not Hillary Clinton.

On the other hand, before the 12th Amendment, the vice president was the runner up in the Presidential election, then it really did reverse an election. If you were to have an impeachment of John Adams you would replace him with Thomas Jefferson. So at the time that they ratified this system, they seem to be a little more tolerant of the idea that an impeachment could result in major policy changes. They were hoping there weren’t political parties and that wouldn’t emerge as quickly as they did. But it strikes me that prior to the 12th Amendment, you could really have sweeping policy changes as the result of a presidential impeachment.

The Trump Impeachment Case

Bob Zadek: Now Gene, we’re going to design a voter information pamphlet as if we are asked by plebiscite. We, the voters of our country are asked to vote by plebiscite whether it is proper to impeach and convict President Trump. Let’s imagine the voters are asked to decide. Let’s look at this as a public service to all listeners, focusing on the specific charges. The beauty of this is that you have all the luxury in the world to be wrong, to be a terrible predictor, and nobody’s going to impeach you if you are wrong. So you have free intellectual reign to voice whatever opinion you want, and to take the principles from your report.

“Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?” — George Mason

Let’s help the audience follow along like a little impeachment Libretto so they can follow what’s going because for sure it’s not happening in English. First of all, you mentioned earlier in the show, and I didn’t comment at the time that one of the two Articles of Impeachment you made reference to was obstruction of justice. Of course the Article of Impeachment in this instance is “obstruction of Congress,” a phrase I had never really heard before.

Gene Healy: Earlier I was talking about Article I of the Nixon impeachment (or near impeachment) and Article II of the Clinton impeachment. So more obstruction of justice in the criminal process sense than obstruction of Congress. The second article of impeachment that has just passed against Trump is obstruction of Congress. That is based also on an article of impeachment that has a judiciary committee against Nixon in 1974.

It was based on this idea that in an impeachment inquiry, the House’s entitlement to information from the president is at its height and the President can’t just decide for himself what he’s going to provide. That was certainly the most controversial of the three articles of impeachment that the judiciary committee passed against Nixon. He got the fewest votes, with only one Republican vote.

On the other hand, the Trump article of impeachment, based on Trump’s obstruction of Congress –Trump’s behavior has been more sweeping and categorical than Nixon’s ever was in this regard. In other words, Nixon partially complies by releasing edited transcripts of the tapes that Congress wanted.

He tried to do as little as possible, but not until the very end did Nixon just say “I’m not cooperating at all.” Trump from the very beginning of the impeachment inquiries just said, “I think you guys are biased and this is illegitimate, so I’m not giving you anything.” That is the second article. Your mileage may vary but I think it is pretty well-grounded.

Bob Zadek: Now, Trump said he was asserting executive privilege. So Trump asserted some very vague in not well articulated principle by which he claimed he had no duty to comply. He said “take me to court.”

So what’s wrong with Trump just saying “If the court tells me to do it, I will do it.?”

All Trump has done is delay the process. He’s not being charged with delaying Congress. He’s being charged with obstruction, but it’s not obstruction until a court, the third branch of government, says “do it,” and he then he doesn’t do it.

There are some really smart observers who I read rigorously and there is profound disagreement even at that high level of scholarship about this significance. Any thoughts on the President merely saying, “I’m just asserting my rights, if you will, or my prerogatives as chief executive”?

Gene Healy: I think we’re kind of interpolating an executive privilege claim here. In the most public documents about non-cooperation with the impeachment inquiry is the letter from the white house council, which, if it mentions executive privilege, it’s not a real claim of privilege. The bulk of the letter is just that this is unfair. Congress wanted to impeach me from day one. I’m not going to cooperate. This is not a claim of privilege. Nixon at least made up the idea that the Watergate tapes contained some confidential communications and possibly national security information and made formal claims of executive privilege. And unless one of the subpoenaed officials has made that formerly in court, the main argument that Trump has been making is, “I don’t like what’s going on here. This is a coup. You guys are partisan and biased. This is not a claim of privilege. We can do this process through the courts.”

Excerpt from Trump’s 6-page letter

Congress also has an impeachment remedy that doesn’t have to wait.

Bob Zadek: The second question I have that I want to discuss is the phone call that could bring down a President — the world’s most perfect phone call – the Zelensky phone call. The issue is that Trump’s motive during the phone call was to benefit himself by having Zelensky investigate the Bidens.

The argument is that his motives were bad.

Gene, I’d like you to examine that and apply that to the following hypothetical hypothetical. Let us assume that Donald Trump has some evidence that Vice President Biden was guilty of treason, pure treason, nobody would disagree. And Biden is also a possible candidate for the President as a Democrat. And Donald Trump says, “I got this son of a gun,” and Donald Trump asks Zelensky to “investigate and tell me what you can tell me about the possible treasonous act of Biden.”

By the way, in my hypothetical, Biden is also a possible presidential opponent. Trump is compelled to ask Zelensky for help. So compare those hypotheticals.

Gene Healy: Take Biden out of it. An investigation would not go on at that level. It would be done by the Justice Department or prosecutors. Let me create another hypothetical for you.

Let’s say Trump asked Zelensky to do a favor for him. He needs Zelensky to license a Trump Tower in Ukraine and that is what the military aid is held up for. The question is which of these two hypotheticals is closer to what we think actually happened on that phone call and the surrounding events, Biden committing treason or a Trump asking for a Trump Tower.

Bob Zadek: I see. So, we’re trying to help our listeners and we give them two impossible-to-reconcile hypotheticals which will make them walk confused than ever. That’s not my version of a public service, Thank you Gene.

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