Against Impeachment for Thought Crimes
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Both of the articles of impeachment passed by the Democrats in the House are unprecedented in that they charge “thought crimes” against a president. They are based on the dubious legal theory that doing something that is legal in and of itself but with a supposedly improper mental attitude turns an otherwise legal act into an impeachable offense. Lawyers call such offenses “specific intent” crimes, which means they turn on what was in someone’s mind at the time of the actions in question. If accepted by the Senate as a valid basis for impeachment, these articles of impeachment would set a dangerous precedent that a president may be removed from office any time that a majority of the House is suspicious of a president’s motives, which occurs frequently in an era of divided government.

It is legal for a president, who is under a constitutional duty to enforce the law, to ask a foreign government to cooperate with the Attorney General to investigate an American citizen about allegations that involve possible misuse of office for private gain. It is also legal for the President to delay the delivery of foreign aid to make sure he gets the foreign government’s attention; that’s not “extortion,” which is also a specific intent crime that requires a “wrongful” or corrupt purpose. On the contrary, one of the recognized purposes of foreign aid is “to reward a government for behavior desired by the donor.”

Under the theory adopted by the Democrats in the House, the President’s otherwise legal acts supposedly become “high crimes and misdemeanors” warranting impeachment if they were done with the allegedly improper intent of “digging up dirt on a political rival,” rather than for a legitimate purpose. But why isn’t “digging up dirt” on a political opponent in an election year a legitimate purpose? It is called “opposition research” and the Democrats do it all the time.

Their original theory was that because a foreign government was involved, the request for an investigation would have been soliciting an illegal campaign contribution. That tortured legal theory that asking for an investigation that never happened was an impeachable offense was abandoned when the Republicans pointed out that a foreign government provided information against candidate Trump in the notorious Steele dossier.

The second article of impeachment for so-called obstruction of Congress also involves a thought crime, but based on an even more far-fetched theory. The idea there is that by invoking Executive privilege, the president was somehow “obstructing” a Congressional investigation. This is specious, as Professor Jonathan Turley rightly pointed out in his testimony to the House judiciary committee.

Presidents, like all other American citizens, are entitled to raise plausible objections to a Congressional subpoena and to direct their subordinates to do likewise; if the House does not agree, it may go to the third branch, the judiciary, to resolve the dispute. That has happened many times in our history. Why is it illegal now? According to the House, supposedly because President Trump did it with the “corrupt motive” of delaying a Congressional investigation. Another thought crime.

There are many reasons why setting the precedent that the House may impeach a president for exercising the ordinary powers of his office but with a motive that the opposition party considers improper would be perilous for our country. First, it is notoriously difficult to know what is in someone else’s mind. This is particularly true in politics, where the opposition frequently sees a sinister motive in what the other party is doing. For example, Hillary claimsthat she can read Donald Trump’s mind, and therefore that she “knows” that his real purpose in making the request for investigation by Ukraine was to dig up “dirt on Joe Biden, whether it is real or not.” Mind-reading is not admissible in court for good reason, however, and neither should it be accepted by the Senate as the basis for impeachment. Absent a confession by the accused, the trier of fact must usually infer the motives behind someone’s actions from the totality of surrounding circumstances, but that’s an unreliable basis on which to impeach a president. The (dis)loyal opposition often feels that actions taken by a president of the opposing party were for improper purposes. “You could impeach every living president on this type of allegation,” as Professor Turley rightly pointed out. When Barack Obama pushed Obamacare, some thought it was a communist plot to take over one-fifth of the U.S. economy. Could he have been impeached for treason as an “asset” of the Russians?

When George W. Bush invaded Iraq, some thought it was a war crime. Could he have been impeached for abuse of power? If the defective legal theory advanced by the House Democrats were to be accepted, Congress would spend a great deal of its time in the future impeaching presidents of the opposite party rather than working together to do the people’s business.

In addition, if the Democrats newly minted legal theory that otherwise legal exercises of presidential power become impeachable offenses if they are done for what a majority of the House considers to be an inappropriate motive is accepted, we will fundamentally change the structure of American government; our president, like the British prime minister, would serve at the pleasure of a majority of the lower house. Perhaps that’s good; it would ensure presidents have to govern on a more bipartisan basis. But if we are going to change the Constitution, we should do it with our eyes open, not by retroactively promulgating a radical new definition of an impeachable offense. Due process of law requires that an impeachable offense cannot be whatever a majority of the House says it is after the conduct occurs.

In addition to this general problem, there is a specific problem with the theory of the first article of impeachment that a president may not try to “dig up dirt on a political rival,” at least if the alleged misconduct by the rival occurred in a foreign country. Digging up dirt on political rivals is as American as apple pie and the Fourth of July; “scandal has always followed American politicians.” Unlike some countries, we do not grant politicians blanket immunity from criminal laws. The public integrity section of the Department of Justice consists of 30 attorneyswhose full-time job is to investigate corruption by government officials. In 2018, they prosecuted 765 federal, state and local officials, convicted 695, and investigated many more. Are we now to understand that it is an impeachable “abuse of power” for the administration of one political party to investigate members of the other political party? Or is it only impeachable if, as Hillary surmises — and many Democratic partisans assume “without evidence,” as the saying goes — that the real purpose was to dig up dirt “whether it is real or not”? But how should we know that the dirt was “not real” in advance of it being dug up? And even then, wouldn’t the high crime or misdemeanor consist in using dirt that is “not real” once someone knew or should have known that it was not real, as happened with the Steele dossier? Could this all be a preemptive strike by the Democrats to deflect attention from the on-going criminal investigation of the misuse of the Steele dossier by the prior Democratic administration — the old “they all do it” gambit?

These are all good reasons why the House should not have done what it did in impeaching President Trump for vague offenses that consist of exercising the ordinary powers of his office for reasons that the opposition political party speculates may have been illegitimate. But what is to be done now? The Senate should go on record that it does not agree that the charges voted by the House majority constitute impeachable offenses even if proven. By merely acquitting the President, the Senate could be seen by history as implying that the allegations, if proven, would have constituted valid ground for impeachment, which would do irreparable damage to our constitutional system.

Technically, an acquittal does not necessarily mean that the charges were valid. But as a practical matter, precedents from prior impeachments by the House are viewed as indicating that a certain type of misconduct is a valid basis for impeachment. It is important therefore that the Senate go on record disavowing that the House’s articles of impeachment constitute valid grounds for impeachment. The Framers gave the Senate the final word on impeachment because they rightly felt it would adopt a longer view of what is in the country’s interest, whereas the House tends to reflect the passions of the moment.

There are several ways for the Senate to go on record as rejecting the House’s bogus theories. The most direct is to pass a resolution by majority vote stating that the grounds alleged in the articles of impeachment, even if proven, would not constitute a valid basis for impeachment. While the Constitution gives the House the “sole power of impeachment,” it also gives the Senate the sole power to “try” impeachments. It is well within the Senate’s constitutional power to “try” impeachments to grant what we lawyers call a “motion to dismiss,” which in modern federal practice is called a Rule 12(b)(6) motion for failure to state a claim on which relief may be granted. Everyone learns in law school about this common motion, which says that even if your opponent is able to prove everything he or she has alleged, it does not add up to a valid legal basis for the result that he or she is seeking. This isn’t some rare or esoteric legal theory; over 3,200 federal civil cases involved such motions in 2009-2010, according to a study by the Federal Judicial Center.

There is clear precedent for the Senate to dismiss charges that are outside the proper scope of the House’s power to impeach. In the first impeachment case in 1797, the House voted articles of impeachment against Senator William Blount for conspiring with native American tribes to attack the British in New Orleans. The Senate voted 14-11 that as a senator he was not properly subject to impeachment, even though the House had voted articles of impeachment against him. He was expelled from Congress instead.

The Democratic majority in Nancy Pelosi’s House has gone on record asserting that they believe that they may impeach a president for taking actions that are within the legitimate scope of his powers if they deem his motives impure. For the future of our system of government, the Constitution, to which the House Democrats claim to be so devoted, the Senate should go on record rejecting that legal theory decisively, not merely acquitting the President narrowly on the facts.

Dismissing the charges as invalid would have the added side benefit of being a way out of the current impasse over the Democrats’ demands for additional witnesses in a Senate trial. If a majority of the Senate rules that the factual allegations, even if they could be proved, would not add up to a valid basis for impeaching the President, there is nothing left to try. And they wouldn’t have to wait until Speaker Pelosi sends over the charges.

Case closed and damage to our system of government minimized.

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