To gain more insight, CNN Opinion has asked two prominent Washington legal experts to go back and forth in a series of email exchanges with their thoughts on the decision to pursue these particular articles of impeachment.
Robert Ray served as the independent counsel from 1999 to 2002, during which he led the investigation into the Whitewater controversy. Michael Zeldin served as deputy independent counsel, and later independent counsel, in the investigation into allegations that the administration of George H. W. Bush violated the privacy rights of candidate Bill Clinton in the 1992 presidential campaign.
We asked Ray and Zeldin to assess the Democrats' case.
Robert Ray: Apparently, we're about to witness the first impeachment of a President that does not allege that a crime has been committed, despite the Constitution's text that impeachable conduct is limited to "treason, bribery, or other high crimes and misdemeanors" and that "trial of all crimes, except in cases of impeachment, shall be by jury." The "except" clause above refers, of course, to trial of impeachment before the US Senate.
The point being that House Democrats, in this impeachment inquiry, have jettisoned treason, bribery, extortion, and foreign campaign contributions as a predicate, under law, for impeachment. Instead, we are left with abusive conduct and an interbranch dispute over witnesses and documents. The bar for impeachment has been lowered in an unprecedented way.
Michael Zeldin: I disagree that the Constitution requires the commission of a crime as a prerequisite for impeachment. While I appreciate that there is debate among legal scholars on this point, I think the more convincing argument is that impeachable conduct -- "offenses" is the word used by Alexander Hamilton in the Federalist Papers -- relates to the misconduct of public officials in violation or abuse of the public trust irrespective of whether a crime is committed.
The late Charles L. Black, Jr. Sterling Professor of Law at Yale Law and author of the seminal work on impeachment entitled, "Impeachment: A Handbook,'' best articulates the appropriate standard for evaluating what meets the definition of a high crimes and misdemeanors in the constitutional sense: That is, offenses that are clearly wrong, even if not criminal, and in Black's words, "seriously threaten the order or political society as to make pestilent and dangerous the continuance in power of their perpetrator."
President Trump's alleged conduct in soliciting Ukraine to investigate his political rival and then withholding military aid until such investigation is publicly announced, violates the public trust and renders his continuation in office a danger to the Constitution. His obstruction of Congress in their investigation of his actions compounds the offense.
Ray: I appreciate Michael's acknowledgment that whether the Constitution requires criminality as a prerequisite for impeachment is, at minimum, a debatable point. I have argued for some time -- indeed prior to the July 25th call between President Trump and Ukrainian President Zelensky -- that a well-founded article of impeachment must allege both that a crime has been committed and that such crime also constitutes an abuse of power.
The House Judiciary Committee itself at least concedes, in a report authored by the majority staff, that while criminality and impeachment are separate paths, "commission of crimes may strengthen a case for removal [from office]" and that "the criminal law is not irrelevant" for purposes of impeachment.
That said, I find it constitutionally awkward to be arguing on the one hand, as many have -- including me when it comes to presidential misconduct -- that no president is above the law, and then on the other hand, that this President should be impeached without an allegation contained in an article of impeachment that he actually violated the law
It seems like failing to allege criminality weakens the case for impeachment. And it sets a dangerous precedent for future impeachments by a majority of the House of Representatives that any abuse of power will do, irrespective of the rule of law. I don't see how that would, or should, be in the best interests of the country.
Zeldin: Robert is correct that commission of crimes can strengthen a case for impeachment, as we saw in both the Nixon and Clinton impeachments. In this case, both articles of impeachment essentially allege criminal conduct.
Article l -- Abuse of Power, alleges conduct which can be argued implicates criminal law violations. Specifically, it alleges that the President and his men engaged in a "a scheme or course of conduct that that... would... influence the 2020 United States Presidential election to his advantage." The allegation of a scheme or course of conduct tracks the language of the 18 USC 371; Conspiracy to commit offense or defraud the United States.
Conspiracy to defraud the United State requires an agreement of two or more individuals to defraud the United States and an overt act by one of the conspirators in furtherance of the scheme. As applied to this case, the conspiracy would be for the purpose of impairing or frustrating the lawful function of the Federal Election Commission to insure honest and fair elections. A similar Section 371 charge was filed by Special Counsel Robert Mueller in the Russia Internet Research Agency prosecution.
Article II -- Obstruction of Congress-- similarly alleges criminal conduct. That is, Obstruction of proceedings before departments, agencies, and committees (18 USC. 1505). Section 1505 outlaws the obstruction of the "due and proper exercise of the power of inquiry under which any investigation is being had by a committee either House, or any committee of either House." Violation of this statute carries a term of imprisonment up to five years in prison.
The President's wholesale refusal to cooperate with either witness testimony or document production requests transcends Robert's view that this aspect of the impeachment is merely an "interbranch dispute over witnesses and documents." It is tantamount to criminal obstruction.
While a criminal statute is not cited in either article of impeachment -- which it need not be -- the articles allege conduct that appears to meet Robert's underlying criminal conduct test. As such, the articles are consistent with past practices and do not set a dangerous precedent.
Ray: I don't know. How hard would it have been to have added the words to the first Article of Impeachment, "... thereby constituting the crime of bribery, in violation of law." And, as to the second Article of Impeachment, "... thereby constituting obstruction of justice and the lawful functions of Congress, in violation of law"?
I am left to assume that there must be a reason why crimes were not alleged: the proof is not there and, more importantly, the elements of those offenses cannot be established.
As historian Jon Meacham wrote in reviewing the impeachment of President Andrew Johnson in the 2018 book "Impeachment: An American History," there are risks with drafting articles that don't allege crimes:
"To deploy [the weapon of impeachment] in times of great political passion but without a clear violation of law, however, risked (and risks) pushing the American system in a parliamentary direction -- a development that might have its virtues but which would be a definitive break from the original intent and the organic evolution of the constitutional order... Should he therefore have been impeached and removed from office? The verdict in his own time was no -- the decision to push him from the presidential chair should, Congress decided, lie with the voters rather than with lawmakers."
Zeldin: The decision not to include specific words from modern criminal statutes, I assume, was intended to avoid having to engage in the debate that Robert's suggestion invites: namely, whether "elements of those [statutory] offenses [can] be established."
As we have discussed above, impeachment is a remedy intended to redress an abuse or violation of some public trust which, in the words of Alexander Hamilton, "relate chiefly to injuries done immediately to the society itself." It is not like a trial known in our criminal courts requiring proof of specific statutory elements.
The impeachment of Andrew Johnson derived from a bitter policy dispute between Johnson, a Democrat, and the Republican-controlled Congress over post-Civil War reconstruction policies. This dispute, as Robert and Jon Meacham correctly point out, should have been resolved at the ballot box. Impeachment was a pretext to remove him from office.
To be sure, the prosecution of impeachments, as Hamilton wrote in Federalist 65, "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused." The process must, therefore, be deployed sparingly and with just cause. The articles of impeachment returned against President Trump meet this test.
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