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An Obama Administration Impeachment Expert on Trump, Mueller and What Both Parties Are Getting Wrong

A conversation with constitutional scholar Cass Sunstein about the history of impeachment, how it’s being misunderstood, and yes, the Mueller report

President Donald Trump speaks with reporters on the South Lawn of the White House before departing, in WashingtonTrump, Washington, USA - 19 Jul 2019

President Donald Trump speaks with reporters on the South Lawn of the White House before departing in Washington.

Alex Brandon/AP/Shutterstock

To impeach or not to impeach. That has been the question vexing congressional Democrats since they took control of the House of Representatives last November. The push to begin proceedings became more urgent in April after then-Special Counsel Robert Mueller detailed several instances in which President Trump potentially obstructed justice, and over 90 House Democrats have now publicly expressed support for impeachment. The number is likely to increase this week as Mueller testifies about his findings before the House Judiciary and Intelligence committees.

But as “Impeach!” has become a mainstream rallying cry for Trump’s opposition, the intention of the constitutional provision that allows Congress to remove the president from office has been largely misconstrued, says Cass Sunstein, a Harvard Law professor, constitutional scholar, and Obama administration veteran. Sunstein’s 2017 book Impeachment: A Citizen’s Guide has taken on new relevance since the release of the Mueller report — so much so that an updated version was released last month to break down how the special counsel’s findings factor into the debate over whether to impeach President Trump.

Rolling Stone recently spoke to Sunstein to discuss the history of impeachment, misconceptions about what is and isn’t impeachable, the implications of the Mueller report, and more. This interview has been lightly edited for length and clarity.

RS: Is there anything in particular that has frustrated you about the recent discourse surrounding impeachment? What’s something you feel people are not really understanding about the process?
CS: The first thing is that people need to have some reverence when they speak about impeachment. I think that’s really important, and that’s missing — to see impeachment against the background of brave people fighting for independence from a king, and then having a system of self-government organized around the Constitution, with the impeachment provision being essential to their understanding that they were self-governing. There’s a disconnect between the current celebration of the idea of impeaching President Trump and [impeachment] being a cherished part of our heritage. It’s worth revering in view of what it meant for “We The People,” the first words of the Constitution.

The second thing is that it’s a shame to see the intensely partisan nature of the discussion of impeachment, with many of President Trump’s fans thinking of impeachment as a completely ridiculous idea, and many of his opponents seeing it as an obvious idea. That’s too convenient. If you just don’t like him and think he should be impeached, you should really scrutinize whether you’re confounding your political convictions with resort to this mechanism. If you love him and think he shouldn’t be impeached, you should also pause and worry whether there’s some traction of your judgment about impeachment by your judgment that he’s great.

The third thing I’d single out as not loving is the widespread view that impeachment is a political effort, not a legal matter. I think on all sides, there’s a sense that this is a political call. That’s a big betrayal in the sense that the impeachment provision was really worried over, and in crucial respects it’s not political; it’s a legal judgment, a judgment of law and fact. The idea of “high crimes and misdemeanors” isn’t a political term. It was understood as a legal term, which had a history. It has specificity to it where if you commit a crime, that doesn’t mean you’re necessarily impeachable. If a president shoplifts or if a president cheats on his taxes, he isn’t impeachable for those reasons. These aren’t what [the Founding Fathers] had in mind. If a president went on vacation for four months and sat on his hands in Hawaii, that would be impeachable even though it’s not a crime. If a president started declaring war in a very lawless and wild way, that wouldn’t be a crime, but that would be impeachable.

I think people take “high crimes and misdemeanors” to be a very vague phrase that leave a lot of room for interpretation. But you’re saying that it’s actually very specific.
It’s tempting to think it’s deliberately vague, but if you really study the background of it, it’s no more vague than terms like “refrigerator” or “microwave oven” — they aren’t vague terms, but for someone who’d never heard those words or seen those things, it may seem that way.

“High crimes and misdemeanors” has a very particular history, and it emerged in the Constitution during a very concrete debate. The document was originally restricted to treason and bribery, but at the convention they said, “There are other really horrible things that could be done. And so we should substitute the word maladministration.” Maladministration also had a history in the colonies, and that term wasn’t completely open-ended either. But [James] Madison said it actually was too vague and broad, and would mean the president would be dependent on the sufferance of Congress. “High crimes and misdemeanors” was the substitute term, which covered great and dangerous offenses outside of treason and bribery. History suggests, if you need a shorthand discussion, that it means very egregious abuses of authority. That’s what the American and English practice points to. So if someone engaged in the modern day equivalent of drunk driving — say, something like noxious behavior on the streets, or disorderly conduct — that wouldn’t be impeachable, even though it could be a misdemeanor if it reached a certain level of severity. It could be a felony and it still wouldn’t be impeachable.

“[‘High crimes and misdemeanors’] is no more vague than terms like ‘refrigerator’ or ‘microwave oven’ — they aren’t vague terms, but for someone who’d never heard those words or seen those things, it may seem that way.”

[Alexander] Hamilton explained in the Federalist Papers that these are offenses against the public, and they have to be really bad, so they have to be “high.” But they would be either criminal acts that were abuses of authority or, as explained in Massachusetts in the ratification debate, noncriminal acts that invaded civil liberties or compromised self-government. So if the president went after people because of their religious convictions or started targeting political opponents because they were political opponents for jail sentences or fines or something, that would be impeachable, even though it wouldn’t be a crime. It would be an egregious abuse of authority.

There are some gray areas … but there’s a lot of things that are clearly in and a lot of things that are clearly out. The number of gray areas is relatively small, and I think for the these areas it’d be too simple to say it’s a political judgment. It would be a legal judgment that the House and Senate would have to make given the category that is clear: egregious abuses of authority. So if the president started abridging civil rights and civil liberties during wartime in a way that responded to his judgment about what was necessary given the national security threat, you could devise a hypothetical so that that was clearly not impeachable. But you could also devise a hypothetical where it would be a gray area.

It’s pretty incredible how much the impeachment issue was labored over by the Founding Fathers.
For the founding generation, impeachment had a centrality. Thank goodness, it rarely has for us. It had a centrality that makes the whole topic so inspiring — a door which you open and you understand American exceptionalism. They fought a war against the idea of a king, and then created an immensely powerful president. Alexander Hamilton was probably the most important figure behind that decision. For many people who had lost their friends fighting in the revolution and for whom the revolution was basically a blink of an eye ago, this was a betrayal. How could you do that? How could you create what the Articles of Confederation has explicitly avoided, which was anything like a president? Now we’re going to have a president? We’re going to have the king? In the face of that very impassioned and not unreasonable concern, the impeachment clause was indispensable. It was a way of ensuring against betrayal of what for many of them was the most glorious thing that would happen in their lifetimes, which is the successful war for independence. That background shows why impeachment would be so crucial to them and why it couldn’t be vague. If they left it vague or delegated to the political process, they couldn’t have the Constitution. They didn’t want that. They wanted a clear mechanism by which anything like the British king would be stopped.

I think that a lot of people will say that that’s why we have term limits, and that if a president is betraying his oath, the people can just not elect him next time. Nancy Pelosi has essentially said Democrats need to just focus on their agenda and then the people will decide in 2020, that Trump is “self-impeaching” in this regard. Why did the Founding Fathers feel like impeachment was so necessary in addition to term limits?
That was explicitly discussed in the Constitutional Convention. Some people thought there should be no impeachment clause because of the four-year term, but they were a really small minority. It was not only rejected, it was overwhelmingly rejected on the grounds that if, after a year or two years or three years, someone has done something — treason, let’s say, or bribery — they have to be impeached and removed from office. Otherwise, you have a period, even if it’s relatively short, in which the nation is in the hands of someone who doesn’t respect republican self-government, or who isn’t loyal to the country. And so the clear judgment was that four-year term was important, but not a sufficient safeguard against an abuse of civil liberties and civil rights.

Right now a lot of people are calling for Trump to be impeached, but the position of Democrats in Congress is that we’re not going to do this yet. The reasoning doesn’t necessarily seem to be that Trump has not committed impeachable offenses as much as it is that they want to handle it through all of these other investigations so they can avoid whatever political ramifications impeachment would bring. Does Congress have a constitutional duty to impeach if they believe a president has committed impeachable offenses?
So let’s suppose that Bernie Sanders becomes president and at some future time, there is justified clarity that he’s committed an impeachable offense. Then impeachment is obligatory. The Republicans would be required, whatever their political self-interest, to initiate impeachment proceedings. And the Democrats would be required to vote for impeachment, even if they love President Sanders. Just hypothetically, but it’d be something — accepting a bribe or committing treason. Then you can’t say, “He’s our guy,” or you can’t say, “There’s an election coming.”

With respect to President Trump, the [Mueller] report has some pretty serious stuff in it with respect to obstruction of justice. I think everyone should be keen to this. It has a clear finding of no criminal conspiracy, which is really important and great news. On the obstruction of justice issue, it’s a very subtle treatment. Mueller says several times that this does not exonerate the president. He’s clearly very troubled. Now the fact that Robert Mueller is very troubled by obstruction does not mean the U.S. House of Representatives has to make the same conclusion. So to say we will impeach the president based on the Mueller report is too compressed. It’s better to say the Mueller report has some serious matters that could legitimately give rise to impeachment. Not to pursue an exploration of this would be a disservice to “We The People.” I think that’s completely clear. So where we are is that due to the gravity of the material in the Mueller report, for Congress to keep the impeachment option as the possible upshot of investigation is completely fair and probably mandatory.

To say, “No, we’re not going to impeach him because of the politics,” would be a betrayal of the Constitution. To say, “We are going to impeach him because of the report,” would be too compressed. There’s fact-finding and law exploration to be done. But there’s material there that is grave. And for Republicans and Democrats to say, “I’ve read the report, and this is disturbing” — that’s too weak. This is grave.

So are you saying that because of the subtle way Mueller handles obstruction, what’s in the report alone is not enough to warrant impeachment, and it needs to be investigated further before you can come to the conclusion that Trump should be impeached?
I’d put it slightly differently. I’d say any report by an independent or special prosecutor wouldn’t justify impeachment because the House of Representatives has its own responsibility, which is to look at the facts and the law. So if there’s a report by Kenneth Starr or Rush Limbaugh or some left-wing person or Robert Mueller, for whom I have a great deal of respect, that doesn’t eliminate the House of Representatives’ duty to do its own independent analysis. So if the House of Representatives believes everything in the Mueller report, all the conclusions of fact and law, then the impeachment question has to be on the table.

Right, and so that’s just for the House to determine or not determine then.
Yeah. And they might on reflection, looking at the law and the facts, think that the case is stronger for impeachment than the Mueller report by itself suggests, or weaker for impeachment than the Mueller report suggests. They have their own investigatory fact-finding capacity, and there’s some legal conclusions that Mueller reached, and that attorney general reached, that the House is committed to revisit.

If the attorney general said there’s no obstruction of justice, if that’s true, that wouldn’t necessarily mean impeachment is off the table, but it certainly counts against impeachment. It suggests that what was done is less than if there were obstruction. But I think the fair reading of the Mueller report is that Mueller and his team did think there was obstruction of justice. I think that is the fairest reading. Reasonable people could certainly conclude there wasn’t. I think that’s a hard one if the facts are as stated, but it’s not as if it’s outside the bounds of reason given the complexity of the legal standard.

Cass Sunstein Sunstein is at the center of the mammoth review of government rules and regulations. "The question is how to get it right, not do we want more or less," he said, promising members of Congress "everything is fair gameRethinking Rules, Washington, USA

Cass Sunstein in 2011 in Washington, DC. Photo credit: AP/Shutterstock

Another complicating issue is that as Democrat are trying to embark on this fact-finding and getting to the bottom of everything that the report implies, the White House is pretty actively trying to prevent them from doing that, which a lot of people seem to say is an impeachable offense in itself.
As in the Watergate controversy. One of the articles for impeachment was that President Nixon refused to comply with subpoenas.

How would beginning impeachment proceedings affect Democrats’ ability to conduct these separate investigations? Would the proceedings give them the legislative ability to get more information and open up other avenues to find what they’re trying to find?
This is a great question, and the constitutional debates don’t speak to it because Congress’ investigatory authority wasn’t at the convention or the ratification debate. The Supreme Court hasn’t spoken to this, either. There’s some lower court suggestion that if it’s an impeachment proceeding, Congress’ authority to obtain material is increased. And that’s a pretty reasonable perspective, given the nuclear nature of an impeachment proceeding and how it’s the ultimate mechanism for protecting the system. To say Congress’ investigatory authority is heightened there is plenty reasonable.

“If it’s the impeachment clause against executive privilege, we really have the legal equivalent of an irresistible force meeting an immovable object.”

If the president is making a legitimate executive privilege claim, then we have really a new frontier issue. Executive privilege can be overcome in the case of demonstrable need. The Supreme Court has never said, by the way, that executive privilege applies to conversations that don’t involve the president personally. My understanding is the administration is exerting executive privilege on a much broader basis. The Supreme Court hasn’t endorsed that, what the law would be. If it’s the impeachment clause against executive privilege, we really have the legal equivalent of an irresistible force meeting an immovable object. That’s a conundrum about how to handle that.

Pelosi has given a lot of different explanations for why she’s hesitant to do this. One thing she’s said is that she wants to see Trump indicted and charged at some point, and that impeaching him and then failing to get a conviction in the Senate would in some way preclude or at least impede an effort to charge him once he’s out of office. Is there any truth to this?
I’ll say one thing about the law. If the president is impeached, the Constitution is very clear that criminal proceedings against the president who’s committed a crime are completely available. So there’s no way that impeachment would foreclose a criminal proceeding against the president. So there’s no preclusion. The constitutional text actually is unambiguous. Stepping outside of my role as a lawyer, I would be very cautious about ever calling for criminal prosecution of a political official from a party other than my own and especially a president from a political party other than my own.

So the words “lock her up” are among the least admirable words we’ve heard in a political campaign. “Lock him up” is no better, even if in this case you think a crime has been committed. Jailing or putting behind bars a political official of the opposing political party has a very, very bad history. It’s a way of greatly deepening already damaging political divisions to tell tens of millions of Americans that the person you voted for not only doesn’t belong in office anymore, but he should actually be in jail. We can imagine circumstances in which that’s right, but I would have a very strong presumption against that way of thinking.

The severity of implying the president should be jailed probably goes a long way in explaining why Mueller was so cautious with the report.
There’s something about the Mueller report. It took me a long time to understand his very nuanced discussion. I’m not certain that I do, but I think I do. And I think what he’s saying is that under Justice Department policy, I can’t indict the president. I can’t, the Constitution forecloses that. By the way, I think that’s customary policy. I think it’s correct. The Constitution forecloses indictment of the sitting president. That’s controversial, but I think it’s right. And then Mueller says, “Given the fact that I can’t indict him, he can’t clear his name.”

So unlike any other criminal defendant who’s accused of wrongdoing, there’s no way he can defend himself. He adds that the president isn’t just an ordinary person. He’s supposed to be commander-in-chief, and it would intrude on his ability if I say he committed a crime. So he prefaces it by saying, I can’t indict him. And to say he committed a crime would be unfair and basically intolerable. Then he says, While this report does not accuse him of a crime, neither does it exonerate him. He says that repeatedly. So I think the only way to read that is that he committed obstruction of justice. I think that’s what he’s saying, and it’s extremely subtle. And I also think whether or not it’s right, it’s extremely principled. It’s really admirable, whether you agree with it or not, that he’s trying to respect both the presumption of innocence and the office of the presidency without giving people the impression that he’s clearing the guy, because he’s not.

“A lot of people have said [the Mueller report] is an impeachment referral and that he’s putting the onus on Congress. I think it’s definitely not.”

Do you also read the Mueller report as an impeachment referral?
Definitely not. A lot of people have said it’s an impeachment referral and that he’s putting the onus on Congress. I think it’s definitely not. He’s doing his job. I think for him to make it an impeachment referral would be wrong. That’s not his job, and he didn’t do that. Putting the onus on Congress, no. The onus is on Congress, but I don’t think Mueller put the onus on Congress. He’s doing his job. He’s really a straight shooter.

Are there things you’ve seen people citing as impeachable offenses that you feel don’t actually qualify?
I’ve heard people say that the president’s actions on climate change are impeachable, and they’re clearly not. Not close. I should say I don’t agree at all with his actions on climate change. In fact, I could phrase it more strongly. I strongly disagree with his actions on climate change, but they’re not close to impeachable. Some people have said that some of his tweets are impeachable. I think that’s a very hard argument to make because with press being the enemy of the people, pretty bad. I think it’s hard to say that that’s an impeachable offense. I spend most of my time, with respect to impeachment, in the 18th century rather than the 21st. So until relatively recently, I’ve deliberately not followed much of the back and forth, with respect to President Trump. And one reason is that I worked for President Obama. I think it’s probably a good idea for former Obama people to treat his successor with respect and grace. I’ve not been caught up in the top controversies.

Conversely, of everything Trump has done that has drawn calls for impeachment, from the campaign finance violations, to compelling people to defy congressional subpoenas, to what’s in the Mueller report, is there something specific you see as a blinking red light as something that falls squarely within the “high crimes and misdemeanors” framework?
I read the Mueller report really carefully. If Congress concludes that the president obstructed justice with respect to the investigation of whether Russia interfered with the 2016 election, there’s a very good argument that that’s an impeachable offense. The investigation found that there was no conspiracy in the Trump campaign and the Russian government. So you can completely understand that the president thought “we didn’t conspire with them, this is a terrible investigation.” You can understand his frustration and anger. Nonetheless, it’s an extremely serious matter, what Russia did and what the campaign did in connection with Russia. To obstruct justice with respect to the investigation, if that’s what happened, now we’re in the impeachment ballpark for sure.

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