Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School and a former official in the Obama administration, is coming to the National Constitution Center at 6:30 p.m. Monday to discuss his new book, “Impeachment: A Citizen’s Guide.” He agreed to answer a few questions on the topic in light of the indictment of Paul Manafort and Rick Gates on Monday.
1. What are the most common misperceptions about impeachment?
There are two.
The first, and the worst, is that you can’t impeach a president unless he has committed a crime. Not so.
If the president announces that he is going to pardon everyone who has given money to his campaign, he is impeachable — even though giving such pardons is not a crime. If the president starts locking up his political opponents, he’s impeachable, whether or not he has committed a crime. If a president decides that he is going to spend the summer vacationing in the Swiss Alps, he can be impeached (and he should be).
In short, high crimes and misdemeanors are egregious abuses, or terrible neglect, of presidential powers. That lesson emerges clearly from the founding period, and from the debates at the Constitutional Convention and also during ratification.
Presidents can abuse their authority without committing a crime — and neglect of authority is hardly ever criminal.
The second misconception is that if a president commits a crime, he’s impeachable. Not so.
If the president shoplifts or jaywalks, or smacks his attorney general in the nose, he can’t be impeached. Income tax evasion is bad, but it’s not an impeachable offense. What’s needed is an abuse of presidential authority, and plenty of crimes just aren’t that.
2. In U.S. history thus far, has impeachment been a criminal justice tool or a political one?
It has not been a criminal justice tool, and it should not be. Remember: Impeachment is not about crimes at all. Above all, it is a way for We the People to protect ourselves.
We can protect ourselves against terrible misconduct without thinking that we are engaged in criminal justice. The Nixon impeachment was not, mostly, about criminal justice.
A more qualified statement: In general, impeachment has not been a political tool. The best evidence is that on numerous occasions, political opponents of a president have not even tried to impeach him. Think: Jimmy Carter, Ronald Reagan, Barack Obama.
So even when the president has met sharp opposition, and devastating attacks, he has usually been free from any kind of impeachment inquiry. That’s good. It shows fidelity to the constitutional system.
On the other hand, the two presidential impeachments were politically motivated: Andrew Johnson and Bill Clinton. In both of them, the constitutional standard just wasn’t met.
The Clinton impeachment is the more immediate, so let’s focus on that one. Recall that the charges involved perjury and obstruction of justice in connection with a sexual-harassment case.
Those are serious charges, but they don’t get close to the kind of thing that concerned Alexander Hamilton, James Madison, and the rest. Clinton did not commit high crimes and misdemeanors in the constitutional sense.
3. There has been talk of impeaching President Trump in some quarters since his inauguration. In light of that, what do you think the indictments handed down Monday mean?
I wrote the book partly because of wild, premature talk of impeaching President Trump, as early as January and February. You can’t impeach a president because you disagree with his policies or don’t like him — and you shouldn’t try. I wanted to get a kind of nonpartisan discussion out there, as a primer, and I hoped that it might be useful no matter who the president is.
My focus has been on the period between 1750 and 1800 (a good, inspiring place to focus). While I do discuss subsequent officials, there is no discussion of any official post-Clinton. In fact, Trump does not appear in the book.
In terms of Monday’s indictments: Let’s make some distinctions. If campaign officials are indicted, there need not be any serious issue about impeachment. If they mishandled money, lied to federal investigators, or otherwise violated the criminal law, we need not have any questions about impeachment. They might have done something wrong, even terrible, but we would have no abuse of presidential authority (and we might have no effort by the candidate to procure the presidency by corrupt means — which would raise an impeachment issue).
To be sure, and speaking hypothetically: If the president was personally involved in criminality, we could start to have a discussion. Again speaking hypothetically: That discussion would get serious if there was any kind of coordination with Russia.
As far as I am aware, there is as yet no evidence, and as yet no reason to believe, that as a candidate, Trump encouraged or was aware of any such coordination. If so, we probably should not raise an impeachment question. Those who oppose the commander-in-chief on political grounds have a special obligation (I think) to respect the office and to take the constitutional standard very seriously.
On the other hand, the guilty plea of George Papadopoulos is very concerning from the constitutional standpoint. He lied to federal investigators, which is bad enough. What’s worse is that he apparently interacted with Russian officials, and those close to them, about obtaining “dirt” against Hillary Clinton. That’s a betrayal of his country.
To register for Cass Sunstein’s program at the Constitution Center, call 215-409-6700 or visit constitutioncenter.org/debate.