White House Counsel Pat Cipollone has concluded that the partisan Democrat effort to impeach President Donald Trump for committing “high crimes and misdemeanors” is “unconstitutional.” He most likely is correct.
The constitutional power to impeach and convict any person holding the office of president does not give the Congress policy or personal oversight of the president. Congressional oversight is justified only by the need to write legislation and to monitor the implementation of duly enacted laws.
The Congress does not have power to discipline a president in the exercise of the discretion granted to the office by the Constitution, unless such discretion has been used as an abuse of trust. There is no congressional review of presidential thinking, speaking or acting unless a red line is crossed.
Thinking that a president is vulgar, stupid, too smart for his own good, inarticulate, chaotic in decisionmaking, dimwitted, asinine, living in la-la land, etc., does not give a representative or a senator the privilege of impeaching such an unpleasant or “deplorable” person on any of those grounds.
Years ago now, when I was in Harvard Law School, I came across the then-obscure legal history behind our constitutional process of impeachment. With help from Prof. Vern Countryman, I wrote it up and he sent it to his friend John Doar, then counsel to the U.S. House of Representatives during its consideration of articles of impeachment against President Richard Nixon. Doar included wording I had suggested about abuse of trust in the three articles of impeachment against Nixon for violation of his oath of office.
Our constitutional provision for impeachment comes from English parliamentary practice. It was used as a check on executive discretion, drawing a line between just and tolerable discretion and a personal prerogative that threatened the legitimacy of the state.
In 1787, the framers of the U.S. Constitution took this English legal history and wrote it into the charter they were proposing for the former British colonies in North America. They took the words “high crimes and misdemeanors” from English parliamentary practice where Parliament had disciplined executive officials working for the Crown for abuses of prerogative.
The case that caught the attention of the Framers was the 1787 impeachment of Warren Hastings, governor of the British East India Company for his imperious, cruel and corrupt acts of rule over Indians. The prosecution was led by noted conservative thinker Edmund Burke.
But drawing the line between a valid use of discretion and its misuse is not easy. There is no law or rule clearly dividing one from the other.
In private affairs, agents are hired, just as public officials are placed in office, to take action and accomplish works on their own authority, without asking permission at each step. The law gives them a reasonable scope of freedom to do as only they see fit, with one condition: their judgments must not stray too far from what a reasonable person given that same responsibility would do.
In the law, this is called taking “due care,” a concept in the definition of negligence. In agency and fiduciary law it creates a safe-haven called “business judgment” — a person is not liable for acts that some may not like but which others may find reasonable. What is reasonable is any action taken to further the best interests of those who are to benefit from decisions taken by the person entrusted with the position.
Just so with a president. President Trump took an oath to “faithfully execute the office...” As long as he uses his discretion within the bounds of due care and loyalty to his office, he is not subject to removal.
Democrats and their media allies allege that Trump’s phone conversation with a foreign head of state was an abuse of his discretionary presidential powers. There is a big legal problem with this conclusion. In foreign affairs, a president has unusually broad discretion.
Under the Supreme Court opinion in the 1936 U.S. vs. Curtiss-Wright case, the court held that the president, not the Congress or the courts, has preeminent prerogative in the conduct of the nation’s foreign affairs. He has great latitude in foreign affairs to speak and do as he alone sees fit.
Whether a president’s remarks or actions in conducting our foreign affairs are seemly or disgusting, wise or foolish, short-sighted or supremely strategic, are never matters for second-guessing under the impeachment power. The power to discipline a president wayward in foreign affairs is to influence him through political action, mostly to campaign and vote against his or her party and to employ the congressional power of the purse to force him to modify his policies.
Thus, Democrats opposing Richard Nixon’s Vietnam policy forced his assent to a war powers bill, a bill limiting funds for military use in Southeast Asia, and a cut in military assistance to South Vietnam. But Nixon was not impeached over partisan disagreements with his foreign policy.
The fact that the whistleblower whose accusations triggered today’s impeachment effort disagrees with Trump’s Ukraine policies and actions is irrelevant. A subordinate official who acts on hearsay and personal contempt of a president has no claim to have his or her views supersede presidential discretion.
The only issue of the moment is whether a president can seek information from foreign sources rationally related to American decisionmaking. Of course he can. Our intelligence agencies and our Department of State are charged with doing just that every day.
Stephen B. Young, of St. Paul, is a former assistant dean at Harvard Law School and former dean of Hamline University School of Law.