THE TRUMP IMPEACHMENT TRIAL: WILL THE JUDICIARY BE COLLATERAL DAMAGE?

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

The Constitution of the United States, Article II, Section 4.

By the time you read this post, the impeachment proceedings against President Trump may have wound down to their inevitable conclusion. This was only the third such trial in our nation’s 230-year history, which renders such occasions as rare as Halley’s Comet. Like the Comet, they are worth careful observation.

Much of the debate has centered on the nature of impeachable offenses. Are such offenses limited to criminal conduct?  Or may non-criminal conduct – such as abuse of power – qualify? Both sides have recognized that this issue affects not only President Trump but also future presidents.

Very little has been written or said, however, about another group of public officials affected by this question: federal judges.

We have all heard repeatedly that Article II, Section 4 provides for removal from office only after “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” But we rarely hear the words preceding it: “The President, Vice President and all civil Officers of the United States.” Federal judges are civil officers of the United States, so whatever precedents may be created by the trial of President Trump, they will apply to judges as well.

Now readers of the Constitution (and many of us are carrying around pocket editions of that document these days) may note another relevant provision. Article III, Section 1 refers to federal judges holding their positions “during good Behavior.” In the past, some scholars opined that this provision created an additional ground for removing judges, separate from “high Crimes and Misdemeanors.” But the modern view is that the “good Behavior” clause merely shows that judges are not appointed for a term of years, and cannot be removed at will. It is widely accepted that judges, like presidents and other federal officers, can be removed only upon impeachment for and conviction of high crimes and misdemeanors.

In the Trump case, the House passed two articles of impeachment: one for “abuse of power” for pressuring the government of Ukraine to investigate Hunter Biden’s connection to Burisma, and the other for “obstruction of Congress” for refusing to respond to House subpoenas.  Alan Dershowitz, in a 66-minute law school-like lecture to the Senate on constitutional law and history, argued that conviction under Article II, Section 4, requires the commission of a crime, or at least “criminal-like” behavior. The articles of impeachment, he contended, even if accepted as true, demonstrate only improper behavior. They do not allege criminal behavior, and therefore cannot warrant impeachment or removal.

Opponents immediately rose to take issue with the professor emeritus, many in hyperbolic terms. A more measured and authoritative rebuttal came from Elizabeth Holtzman, a former student of Dershowitz, and later a member of the House Committee which passed the articles of impeachment against Richard Nixon. Ms. Holtzman charged that Dershowitz’s argument “flies in the face of” the Nixon precedent. “To constitute an impeachable offense,” she concluded from her experience with the Nixon impeachment, “the president’s misuse of the powers of his office must be grave and substantial, and must threaten our democracy,” but need not be criminal.

Partisans will argue back and forth about the proper standard for the Trump case. But when they do so, they should also recognize that their arguments, if they are to be accepted as valid, must apply equally to judges, since the Constitution prescribes the same standard for both. When that fact is taken into account, the Dershowitz position seems much more persuasive than that of Holtzman.

Here is why.

Imagine if federal judges could face impeachment and removal for the same kind of misconduct presented in the Trump impeachment articles. Federal judges are regularly called upon to make decisions which can and often are characterized as “abuse of power” and “obstruction of Congress.” Consider “abuse of power.” After a federal trial, the loser may appeal. There are many possible grounds for appeal, but one of the most common is that the lower court judge committed an “abuse of discretion.” Such an abuse may occur when there is no evidence to support a judge’s ruling. It may also occur when a judge acts in an “irrational manner.” In both cases, the gist of the “abuse of discretion” argument is that the judge exceeded his or her authority. The wordage may be slightly different, but “abuse of discretion” is substantively equivalent to the “abuse of power” charge contained in the first article of impeachment.

If non-criminal abuse of power is sauce for the presidential goose, it must also be sauce for the judicial gander. But in that case, every time a party persuades an appellate court to overturn a lower court’s ruling on the basis of abuse of discretion, the trial judge could face not only reversal but also potential impeachment and removal from office.

Consider the second article of impeachment: “obstruction of Congress.” Federal courts are often called upon to weigh the constitutionality of laws passed by Congress. If a court finds that a statute conflicts with the Constitution, the judge will strike it down. Since the nation’s founding, the Supreme Court has exercised its power to review congressional statutes over 1300 times. No one seems to know for certain how many times the Supreme Court has struck down an act of Congress, but a reasonable estimate is close to two hundred.

It is difficult to imagine a more literal example of obstructing the will of Congress than nullifying a duly debated and passed piece of legislation. In the 1930s, the Supreme Court obstructed New Deal legislation so often that Congress, prodded by Franklin Roosevelt, seriously considered a “court-packing” scheme to increase the Court’s size to 15 justices. The legislation failed only after two members of the Court came over to the liberal side and upheld the constitutionality of the National Labor Relations Act and the Social Security Act.

If “obstruction of Congress” could be deemed an impeachable offense, then every time a federal judge strikes down a statute, he or she could risk removal.

Are these fears realistic? After all, the actual conduct alleged under the “abuse of power” and “obstruction of Congress” impeachment articles was very different than the conduct involved in reversing a trial court or striking down a piece of legislation. But every case presents different facts. The problem is that “abuse of power” and “obstruction of Congress” are broad, vague, and nebulous terms. They are unlike criminal statutes, which must be drafted with precision and clarity to be enforceable. If such loose terms govern judicial impeachment (and if they govern presidential impeachment then they must also govern judicial impeachment), federal judges face constant peril of removal.

History shows that these fears, unfortunately, are indeed realistic.

In the 1950s, the landscape was dotted with billboards calling for the impeachment of Chief Justice Earl Warren. Under his leadership, the High Court had issued controversial landmark rulings affecting civil rights, criminal procedure, and prayer in school, rulings which changed American society in fundamental ways. The right-wing populists behind the movement to impeach Warren did not accuse him of criminal conduct. Instead, they argued that the Supreme Court under Warren had arrogated to itself powers that could be properly exercised only by Congress. In short, the impeachment advocates accused him of abuse of power.

Earl Warren was enormously unpopular. President Eisenhower said that appointing him to the Court was “the biggest damn fool mistake” he ever made. But the movement to impeach him never gained traction because most Americans believed that judges had to do more than merely arrogate power to merit removal.

In 1970, William Douglas, one of the most liberal justices on the Supreme Court, faced the threat of impeachment. Michigan Congressman, later President, Gerald Ford presented four charges, two of which had nothing to do with criminal conduct. Instead, they related to his political activity. The first alleged that Douglas had associated with “new leftists” and “leftist militants” of the Center for Democratic Institutions. The second charge involved his book “Points of Rebellion” which, according to Ford, “fanned the fires of unrest, rebellion, and revolution.” Ford did not pretend that these activities constituted crimes. Instead he argued that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a moment in history.”

Conservative Republican Ford’s view was later echoed by liberal Democratic Congresswoman Maxine Waters in September 2017, two years before Trump was impeached, when she told her audience: “Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.”

The fact that Congresswoman Waters, in calling for the impeachment of a president, duplicated the view of Congressman Ford, in calling for the impeachment of a judge, illustrates the danger to the judiciary arising from the Trump trial. While acquittal appears virtually certain, the threat that impeachment and removal may be based on ill-defined concepts such as “abuse of power” and “obstruction of Congress,” instead of being limited to more clearly defined criminal conduct, remains. That threat may haunt future presidents from both parties. In our increasingly polarized society, perhaps we are already inured to such dangers on the political front. But we do not expect such dangers to interfere with our judiciary.

The product of such dangers may be a more timid, less self-assured judiciary; a judiciary more reluctant to enforce the law when it leads to unpopular outcomes.

If that turns out to be the result, then however the trial of President Trump ends, the nation will be the losing party.