Let’s begin with three basic assertions about presidential accountability. First — as my colleague Charlie Cooke outlined yesterday — the constitutional mechanism for presidential accountability isn’t indictment but impeachment. Second, the Department of Justice has long held that the “indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” And third, the standard for impeachment is far more permissive than the standard for criminal prosecution.
Take these three legal realities together, and it’s abundantly clear that the president isn’t “above the law,” even under the broadest possible interpretations of presidential power. Impeachment is a process defined by constitutional law, and there is nothing that President Trump — or any other president — can do to escape the judgment of Congress.
Yet the public debate is now dominated by two questions that aren’t all that relevant to the actual, constitutional system of presidential accountability: Can a president pardon himself? And did the president obstruct justice? The reason these questions are a distraction is that the president can’t pardon himself out of impeachment — and impeachment isn’t confined to situations where the president violates criminal law. But each day these very questions are furiously argued from coast to coast. Lost in the argument is the broader analysis of presidential fitness and the public trust, the analysis that the Founders intended as the essence of presidential accountability.
How did we get here? The short answer is that the president’s lawyers have framed the debate, and the rest of the commentariat bought their framing hook, line, and sinker. Or, if you prefer a different analogy: They moved the goalposts, and everyone’s playing on the shorter field.
The fundamental framing was ably outlined in Marc Kasowitz’s leaked letter to Robert Mueller, and it goes something like this: Because the president ultimately controls the Department of Justice and can end the Mueller investigation at any time, it’s essentially impossible for him to “obstruct” the proceedings. Moreover, since the obstruction question revolves around the president’s impact on specific legal proceedings, evidence that he may have lied to the press (as opposed to the grand jury), for example, is deemed irrelevant to the public debate (a “private matter” Kasowitz calls it). Lying to the press is not a crime, and only crimes count.
The president’s lawyers have flipped the accountability analysis. They’ve made the entire inquiry about criminality. Presidential accountability, however, is first about impeachment and secondarily (if at all, given the pardon power) about prosecution. Indeed, that’s how Alexander Hamilton framed the priorities in Federalist No. 69. The president, he said, “would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” (Emphasis added.) Yet thanks to some clever lawyering and a knee-jerk press, the public debate is now almost entirely about prosecution.
It’s easy to see why this is in Trump’s best interests. Obstruction inquiries are narrow and highly legalistic. Impeachment inquiries, as outlined by the Founders, are much broader — involving more nebulous and politically defined questions of abuse of power. For example, consider Alexander Hamilton’s discussion of the Senate’s role as “court for the trial of impeachments” in Federalist No. 65. According to Hamilton:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Debates and discussion among the Founders, men such as George Mason, James Madison, and Edmund Randolph, further demonstrate that impeachment wasn’t designed solely to remedy violations of criminal law. Randolph, for example, argued that a president could be impeached if he was found to have received “emoluments” from a foreign power.
Obstruction is not the only way to abuse the public trust.
In words that are particularly applicable today, Madison responded to Mason’s arguments about the breadth of the pardon power by arguing that its abuse could lead to removal from office, “If the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him.”
Make no mistake, the Founders knew that impeachment would be a challenge, and they knew they were implementing an imperfect system. As Hamilton outlined, the Senate would undoubtedly be torn apart by the “passions” of the community and the “factions” of the time:
The prosecution of [impeachable offenses], for this reason, 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. In many cases, it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparitive strength of parties than by the real demonstrations of innocence or guilt.
Yet in spite of this danger, the Founders dumped the impeachment responsibility on the legislature. The dysfunction of our current legal debate illustrates why. Do we really want a grand jury, followed by a jury of twelve, to effectively undo the results of a presidential election? Especially when criminal prosecutions can be tainted by political bias?
Conversely, do we want a president’s fitness for office to be judged entirely by his compliance with criminal law? After all, a president can systematically violate the Constitution without once violating a criminal statute. A president can fall prey to foreign influence without once engaging in treason.
Conduct that rises to the level of obstruction of justice might well constitute the kind of abuse or violation of public trust sufficient to impeach a president. Twice in the last 50 years, obstruction-of-justice claims have been at the foundation of an impeachment case. But it is not the only way to abuse the public trust.
We don’t know the outcome of either the Mueller investigation or the Senate Intelligence Committee investigation. As of now, there is not sufficient, publicly known evidence of an impeachable offense under any reasonable standard. One thing is clear, however: If the president’s lawyers are able to define presidential accountability solely around questions of criminal law, they’ll have changed the standard. They’ll have distorted the intent of the Founders. And it is highly likely that the press, the public, and — yes — even the legislature will play right along.