By Reginald Oh
In the fierce debate over whether President Donald Trump should be impeached, much of the rhetoric has centered around the criminal nature of his conduct during the 2016 presidential campaign and during his tenure as president. I contend, however, we should think of impeachment less as a process to hold Trump accountable for his crimes, and more of a process to determine if Trump is substantially unfit to be president.
The impeachment discourse has focused like a laser beam on the question of whether Trump committed federal crimes such as criminal conspiracy or obstruction of justice. Debate about the Mueller Report focused on whether the report “exonerated” Trump from criminal charges. Legal commentators have weighed in on such constitutional questions as whether a sitting president can be criminally indicted.
The underlying belief in this debate is that if Trump did commit federal crimes, then he should be impeached. If he did not, then he should not. Under this view, impeachment turns entirely on whether Trump could be indicted and/or convicted of federal crimes.
There’s a problem with using criminal law as the primary frame to understand impeachment: Impeachment is NOT a criminal process.
Admittedly, it’s easy to conflate impeachment with the criminal process because the Constitution uses the language of criminal law and proceedings to describe impeachment. Article II, Section 4 of the Constitution states that a president can be impeached and removed from office upon “conviction” for committing “treason, bribery or other high crimes and misdemeanors.” Article I, Section 3, Clause 6 states that the “Senate shall have the sole power to try all impeachments” and that “conviction” requires “concurrence of two-thirds of the members present.” (emphasis added).
Based on this language, some people reasonably may think that, upon conviction after a Senate trial, the president will not only be removed from office, but will most certainly be going to prison. But, that is incorrect. If Trump is impeached by the House and then convicted by the Senate, he will not receive a criminal record, he will not be sentenced before a judge, and he will not face incarceration in a federal penitentiary. He will still be a free man.
If impeachment is not a criminal process, then what kind of process is it?
It’s a process concerned solely with removing a president from office. Another way to think about it is as an employment decision.
Reduced to its core, impeachment is about whether the president should be fired from his job. And that is all it’s about.
To make this crystal clear, the Constitution states, “Judgment in cases of impeachment shall not extend further than to remove from office….” This is entirely logical given that impeachment is a legislative, not judicial, process. The only actors involved in impeachment are Congressional representatives and senators, and the Senate “trial” is nothing like a criminal trial.
And because impeachment is not a criminal process, it’s really not about punishment or holding someone accountable for his crimes. As Professor Laurence Tribe contends in his book, To End A Presidency, impeachment “is not a process through which Congress decides whether a particular statutory crime occurred and whether removal is warranted as punishment.” It is not about assigning blameworthiness or rendering a legal and/or moral judgment about a person’s past conduct.
Impeachment is not a backward looking process. Rather. impeachment is “forward looking and preventive.” (Tribe, p. 47) The process is about preventing the President from continuing to abuse his powers in ways that subvert “core tenets of the U.S. governmental system.” (Tribe, p. 42). Past misconduct by a president may rise to the level of an impeachable offense if it strongly suggests that “the president poses a continuing risk” to this nation. (Tribe, p. 42). If continuing to be in office poses serious dangers to this nation, its institutions, and its people, that is when a president may justifiably be impeached, convicted, and removed from office.
Focusing on the preventive nature of impeachment means that the end goal is not to render a verdict on Trump’s guilt or innocence. Rather, impeachment is a vehicle for evaluating a president’s fitness to hold office. The critical question in an impeachment inquiry ought to be this: Is there evidence showing that the president abused and abuses his powers in ways that make him substantially unfit to wield executive power? Evidence that a president committed federal crimes would certainly be relevant to an impeachment inquiry to the extent it can help discern the dangers he poses to this nation. We examine what he did in the past so that we can make a determination of what he is doing in the present and could do in the future.
So, regarding Trump’s attempt to fire Mueller, we should ask:
- Does it reflect poorly on his temperament and ability to abide by rules & procedures?
- Does that conduct suggest he may inappropriately interfere with other investigations?
- Does it establish a pattern and practice of abuse of executive power that makes him unfit to be President?
If the answers are yes, then the president ought to be removed from office so that he can do no more damage. These kinds of questions are fundamentally concerned about discerning how a president uses his executive powers, and is not concerned about determining what sort of punishment a president deserves for having committed crimes.
Regarding evidence that Trump ordered the White House counsel to lie to the special counsel, we would ask:
- If true, what light does that act shed on Trump’s ability to oversee & direct the executive officers under his authority?
- Does it suggest a tendency to abuse his authority over subordinates?
- Is there a danger that in the future, he will order other subordinates to commit lie or commit crimes on his behalf?
If the answers are yes, then, that would make him substantially unfit to be president. These are the kinds of questions that should be posed and deliberated upon in an impeachment inquiry.
Moreover, a focus on whether the president committed federal crimes makes us lose sight of the fact that the president may be unfit to hold office for misconduct that is not criminal in nature.
High crimes and misdemeanors are not synonymous with federal crimes. That term refers to any conduct, criminal or otherwise, that makes a president a danger to the nation.
For example, abusing the pardon power may not be a federal crime, but it can constitute a high crime and the basis for impeachment. His use of racist rhetoric inciting people to commit violent acts may be considered an abuse of executive power, an abuse of the bully pulpit.
Not only are these kinds of forward-looking questions more consistent with the core purpose of impeachment, these questions could be very useful given a key reality: Even if Trump is impeached by the House, the GOP controlled Senate is highly unlikely to convict and remove Trump. It takes 2/3rds of the Senate to vote to convict in order for a president to be removed from office. That equates to 67 senators, which means, currently, 20 GOP senators would need to join all Democratic senators in voting to convict. In this polarized political environment, that is highly unlikely.
If, then, impeachment is not likely to remove Trump from office, what’s the point of thinking of impeachment in terms of fitness to hold office? Because that focus aligns with the presidential election in 2020.
Imagine that it’s the summer of 2020, and as the presidential campaign kicks into high gear, impeachment hearings are simultaneously being held in which Congress hears testimony about how Trump has abused and is likely continuing to abuse his powers in various, numerous ways. Impeachment would function to help inform voters about the possible dangers to this nation posed by the president were he to win another term. That would then help voters make their decision about whether to re-elect Trump or not, whether he is fit to wield executive powers for another four years. That kind of inquiry would be more helpful to the electorate than an inquiry focused narrowly on technical legal questions such as whether there is evidence supporting each element of obstruction of justice beyond a reasonable doubt.
Impeachment would serve an educational function, not a criminal one. Understood in this way, the benefits of an impeachment inquiry are derived primarily from the investigations and hearings, not from the final outcome. Timing, therefore, is crucial. As a process to help the American people make a decision about who should be president in November, 2020, ideally, the hearings would be taking place as close as possible to election day.
So, no, impeachment will not put Trump in prison. But, an impeachment inquiry could help to remove him through the electoral process by providing a platform to publicly deliberate about the dangers he as president may pose to this nation.