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Jeffrey Engel on impeachment and Trump

Octavian Report: Can you talk about the genesis of impeachment as an enumerated power of the legislative branch?

Jeffrey Engel: Impeachment was a critical element of the Constitutional Convention and a critical element of the basic philosophy that underlay the creation of the government, which, of course, is the notion of a separation of powers. I actually don’t like the term “separation of powers.” I think the term “contest of powers” is more accurate. That is to say that the Founders were particularly fascinated by the concept of power, and their sense of government told them that wherever power was located, it would, of its own nature, try to accumulate more power. The term that they preferred was that power “encroaches.”

They recognized that every branch of government was going to want to encroach upon the other, that this competition would itself keep anybody from encroaching too far. So impeachment is an element critical to their sense of understanding any executive, in particular: executives, by their very nature, concentrate power in one individual, and that individual will want to encroach and increase their own power.

This is not unique to the Founders in any way. This actually goes back more to the British experience and particularly the British experience after the Glorious Revolution. All of which is to say when the Founders began talking about an executive, their next question was, “Well, what do we do if we get a bad one? What do we do if we get a dangerous one? How are we going to remedy that problem?” So for many of the Founders, the obvious answer was some form of impeachment.

The main argument against impeachment was twofold. First, that it would potentially make for a tyranny of the legislature: if we allow the legislature to to remove a President, they could just do so willy-nilly. Therefore, they could essentially get rid of somebody whom they simply didn’t like, without a legitimate reason for getting rid of them.

But the second major reason why people opposed impeachment was the thinking that it was functionally unnecessary. We have to remember, of course, that we’re dealing with the 18th Century timeframe here. Time moved more slowly in many ways. They were not dealing with nuclear weapons or air travel. So as a consequence, George Mason, as I recall, made this argument particularly strongly at first: that if we have a bad executive, the easiest solution is to vote him out of office at the next election. So why do we need impeachment, which has a possibility of disrupting our functioning government? Obviously, that argument lost out in the end to those who thought that the dangers of a dangerous President were not ones that could be sustained till the end of the next election cycle.

The really interesting question comes down to what makes for an impeachable President. And I should point out that most of the state constitutions that are written during and after the Revolution allow for impeachment of an executive for some reason akin to the word “maladministration,” which is a word that appears frequently in these discussions. If you break it down, it’s a word that makes all the sense in the world. If somebody is a bad administrator, if somebody’s doing a bad job, if somebody is incompetent, then that would be a reason to get rid of them (in addition to the reasons I’ll talk about in a moment, which are if they are actively dangerous).

Ultimately James Madison pushes back against this notion. You must remember that everything that we know about the Constitutional Convention largely comes from Madison’s own notes, so he always looks particularly good in these stories. He argued that maladministration is a terrible term because it’s so subjective that it would essentially allow the legislature to decide that any President at any time is a terrible administrator, just because he or she is doing something against what the legislature desires.

So he argues very vigorously, and others come to his side, that we have to get rid of all the subjective nature of this. It can’t be about politics. It can’t be a political question in any way. There has to be something deeper to require us to remove a President, because they do recognize that the President is there by the will of the people. So if the people made a stupid decision, then they should be stuck with their stupid decision unless that President is actively dangerous and harming the country — and not harming by bad policies; that would be maladministration — by conspiring or desiring to benefit himself or some foreign power instead of the American people.

The examples that the Founders gave at this point are really quite striking for our own day. I’m going to paraphrase them here, but it’s only a slight paraphrase. “What if we had a President who won an election through the aid of a foreign power?” And they said, “Of course you should impeach him; he’s somebody who’s more beholden to a foreign power than to his own country.” They said, “What if somebody had cheated in the election and they wanted to pardon people in order to cover up the crime?” They said, “Then you have to get rid of that person.” “What if somebody had financial ties to a foreign power that made the foreign power have leverage over them?” “Then you should impeach them.” All these things are strikingly similar to what we’re debating today in the accusation phase against President Trump.

The bottom line is that they wound up employing this term “high crimes and misdemeanors,” which, I argue, was absolutely clear to the people in the room, which is one of the reasons why it sounds weird to us. They didn’t elaborate. Why would you elaborate on something that was absolutely obvious? “High crimes and misdemeanors” — a term that was used in British common law at the time — meant essentially crimes against the state or crimes against the people or crimes against a legitimate authority.

And the key word there is “high crime.” A regular crime is against someone else or against the nature of state law, but not against the authority of state law. A high crime is one that’s designed to damage the people, the sovereign authority — which is to say that a high crime need not be a crime in a technical sense. It need not be illegal in order to be a high crime. A high crime doesn’t have to be on the books. By the same token, if a President were to commit a regular crime, that would not be an impeachable offense according to the Founders either. The example I like to give is jaywalking. A President could jaywalk, which is a crime, and could be guilty of it, and could be found guilty of it. But nobody in their right mind would think that jaywalking is a reason to make somebody leave office. It has to be something that is broader, that’s an assault against the sovereign nature of the state.

OR: What about the history of impeachments themselves?

Engel: There are really three major cases: Andrew Johnson, Richard Nixon, and Bill Clinton. I actually think a fourth one is almost as illustrative: John Tyler, who’s a really fascinating President. He’s the first President to come into power because of the death of a President, the first vice President to assume because of death. Tyler took over from William Henry Harrison, who famously died after three weeks in office. Tyler’s case is really fascinating. He was not a natural political ally of Harrison. Harrison’s Cabinet had been selected by Harrison, obviously, and included all of the major players in his party. This Cabinet essentially proposed to Tyler that his job as Vice President, having become President, was to be the acting President. That he was supposed to execute the policies of the President, i.e., the policies the people voted for, and that that was his Constitutional duty.

Tyler told them to stick that argument where the sun doesn’t shine and said, “I am the President, and I have a moral and legal and constitutional authority to act in the best interests of the country as I see it, not as I imagine a dead President might have seen it.” And you can imagine this made him very unpopular within his Cabinet and his own party, and there was a lot of discussion of impeachment at that time. It didn’t get beyond the discussion stage but it raised a real and important philosophical point in American circles: that the man or woman who holds the office is the President, period. There is no “acting” involved. There is no sense of office place-holding involved. President Tyler, in fact, refused to open any mail that was addressed to the Acting President.

This raises a broader point. The few times where we’ve had a Vice President assume the presidency, people make a big deal of the fact that he has to take the oath of office. He doesn’t actually have to take the oath of office. The vice President is the President the moment that the President is no longer the President (if that makes sense). The moment Kennedy is shot, Lyndon Johnson is the President. Now, for legitimacy reasons and for a good photo op, they have always traditionally taken the oath of office. But in a legal sense it is unnecessary, and Tyler’s reign demonstrates that point.

The first time impeachment becomes legislatively critical is with Andrew Johnson, who, of course, is the President who assumed power after Abraham Lincoln was killed. Johnson, we should remember, was never a member of Lincoln’s party. Johnson was a Democrat who Lincoln had reached out to in 1864 to try to create a bipartisan ticket. He was the only Southern Democrat Senator to remain in the Senate. He didn’t leave when his home state seceded.

He was a Southerner with Southern leanings: he was in favor of the Union, but he certainly was functionally pro-slavery and functionally anti civil-rights — and he becomes the person in charge during a time when the Republican Party has a complete hold on Congress. He proves to be really frustrating to Congressional leaders, who want to be radical in their reconstruction of the South. They want to push forward all kinds of civil rights legislation and electoral legislation that would have really upended the social structure of the South. Johnson refused to sign onto that.

Johnson may be the most racist person to ever hold the office. It’s hard to quantify that, but he would have to be in the discussion. He was also a jerk to everyone. He had no political friends or constituency willing to lay down for him on either side of the aisle. So by the end of his term, enough enthusiasm had risen among Republicans to remove him that they get into a brouhaha over whether or not Johnson has the legal authority to fire a Cabinet member who has been approved by Congress. Congress passes legislation that says the President does not have the authority. Johnson claims he does have the authority. Johnson fires the Secretary of War, Edwin Stanton, and violates Congressional will in a manner that appears to be unconstitutional, which is ultimately why he is brought up on charges and impeached in the House. It should be noted that the Supreme Court subsequently, in the 1880’s, ruled that legislation itself unconstitutional, so Johnson was right in that narrow sense. He was impeached but not convicted for two reasons. First, because there were enough Republican Senators who thought it was wrong to remove a President who, again, was doing his job as he saw fit. Just because he was wrong doesn’t mean that he should be impeached. The second thing is Johnson and his allies bribed the hell out of the Senate, and several of the Senators voted to acquit him wound up becoming very rich or well-positioned immediately afterwards. If you were on the fence and you let Johnson’s people know that you could be bought, they were more than willing to buy you.

OR: Does the Trump situation remind you of other impeachments we have seen, or does it feel more like its own unique case? Do you think Trump is a likely candidate for it?

Engel: Each of them is unique. And one of the problems that we have, as human beings and as a political society, is that we constantly are looking to the past for not so much guidance but for patterns, so we can try to predict what comes next. It’s extraordinarily natural, and every human being does it, to say, “Okay, this reminds us of Watergate in the following ways. Therefore, we expect the next step will be what the next step was in Watergate.” It just doesn’t happen that way. Each of these cases — and we only have four, obviously, if Trump gets impeached — will be sui generis.

Yet there are some broad lessons that I draw from the previous impeachment cases. I’ll give you one that I think is actually particularly pertinent. When Nixon’s support among Republicans eroded, it eroded basically overnight. People were willing to stand with him until the evidence became irrefutable, and then within 48 hours, it was clear that far too few Republicans were going to stand with him. It wasn’t a drip, drip, drip erosion. It was a cascade when it actually happened. I think that’s an important lesson. I can see that happening with Trump.

As to whether or not we should expect him to be impeached, let me give you the historian’s answer. The historian’s answer is: there is no doubt in my mind — not an iota of doubt — that the people who wrote the Constitution would ask us today why we have not already impeached him. They would look at us and shake their heads and say, “What is wrong with you people?” The reason being that President Trump has consistently demonstrated an absence of the one thing that the Founders thought most critical for a President: virtue. And virtue as they understood it — and they defined it very clearly — was an ability to put the needs of the nation above one’s own and to sacrifice for the nation. President Trump, in my opinion, has demonstrably made it clear that he doesn’t think that’s part of his job.

In January the President noted that he actually had, in fact, been dealing with the Russians during and up through the Election Day on a tower in Moscow. Something, of course, which he had previously denied doing. He followed up by saying, “And you know that it’s perfectly legal. There’s nothing wrong with doing it.” The Founders would have turned over in their graves at that notion. Even though it was perfectly legal, it’s ridiculously unwise and immoral. They would think anybody who would aspire to be President should, of course, be willing to sacrifice the possibility of future business deals for the possibility of being President, and if you didn’t understand that, then you shouldn’t be President.

So I am one-thousand-percent convinced that they would have wanted us to have impeached him, which is a different question, to be honest, than saying, “Would they have had the guts to do it themselves?” It’s much easier to tell somebody else to do the right thing than to do it yourself. And the Founders, we know, made all kinds of political compromises during their own time in power. But at the very least, given the way they understood the role of the President and the responsibilities of the President and the reasons for impeaching a President, they would have already wanted him impeached.

OR: How might an impeachment fit into the long history of contests between the executive and the legislative branches?

Engel:  There are individual examples that we could come up with of Congress puffing up its chest against the President and vice versa, but I think it’s important to take the really broad view. We use the concept of the “imperial Presidency.” Arthur Schlesinger first coined that phrase, and we usually ascribe it to McKinley or Theodore Roosevelt as the place that it really begins: the idea that as America’s international sway and, frankly, empire grew, so too did the President’s need to appear and act more like an emperor. More and more power accumulated to the President. Especially as foreign affairs became more important and as the chronological time that a President had to deal with crises got smaller and smaller and smaller.

In the case of nuclear war, for example, the President was never supposed to ask Congress’s permission to launch a counterstrike. That’s one of the reasons that you get Presidents having their power restrained in small ways — like the War Powers Act of 1974, where Congress tries to reassert its authority. But when we look at Congress trying to reassert its authority, they’ve essentially already ceded that they’re playing on the President’s turf. They’re trying to pull back power that the President has accumulated.

I think it’s entirely possible that Congress will, and perhaps should, try to reclaim more in this competition of power. But the field is so tilted that Congress could make great strides in reeling back in the power of the Presidency and still, at the end of that contest, the President would remain far more powerful than Congress.

OR: What is the one misconception about impeachment that you want to demolish?

Engel:  That’s the easiest question of all. Every single day, I read in the newspapers or I watch on TV someone suggesting that we have to wait for evidence of a crime for the President to be impeached. Or that we have to wait for proof of a crime for the President to be impeached. If there is one thing I want the American people to appreciate it’s that, at least insofar as the Constitution’s authors designed the mechanism, you do not need to have a criminal act in order to commit a high crime or misdemeanor. It is handy in some ways, but hardly necessary. The whole purpose is that you are harming the body politic, and you can do that without breaking any laws.