← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
High Crimes and Misdemeanors
00:57:07
Frank Bowman on impeachment--its history and meaning, and whether it’s meant to be so hard.
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- [00:05]
A
High crimes and misdemeanors is not a phrase you can take apart word by word. And most importantly, it doesn't mean what you think it means.
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B
Hi, and welcome back to Amicus. This is Slate's podcast about the law and the rule of law and the courts and the Supreme Court and the Constitution. Last week, the Supreme Court term ended, and we are beginning our summer series. And yet again this year, we're gonna step back from some of the hustle and bustle of the specific cases and the term to talk to interesting people who've written interesting things. Some of these are people you may not have heard of yet, but their heads are full of super interesting thoughts. And so over the course of the summer, we're gonna open up their heads for you. This show is about something we've actually talked about before, and maybe you've been thinking about it a little bit yourself, and that is impeachment. Over the course of this spring, the country has been engaged in a kind of loud and more and more, I think, rancorous conversation about impeachment. Why did Bob Mueller, with all that elaborate investigating and reporting, then just stick the House of Representatives with the check and ghost? And what responsibility does Nancy Pelosi have to the Constitution as opposed to preserving her House majority in 2020 to think about impeachment? And I'm not asking this facetiously. It's a question that a lot of very smart people have given a lot of very SM thought, too. And Frank Bowman is one of those people. He's thought harder about impeachment than almost anyone. And his new book, High Crimes and A History of Impeachment in the Age of Trump, is one of the most comprehensive and I have to say, entertaining reads on the topic I've come across this summer. Frank is the Floyd R. Gibson, Missouri Endowed professor of Law at the University of Missouri School of Law. He's a former federal prosecutor. He writes about impeachment at impeachable offenses, and he's a frequent contributor to Slate. So this book, High Crimes and Misdemeanors, is published by Cambridge University Press. It's out this summer. And Frank Bowman, I've wanted to have you on for a while, but welcome to Amicus.
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A
Dalia, thanks so much. It's a delight to be here.
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B
And I'm correct in saying it's out this summer, Right. Do we have a formal what day.
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A
TikTok it supposedly is coming out on July 31st? I keep urging the good folks at Cambridge Press to hurry it up a bit, but no later than July 31st. You can however, pre order it both at the Cambridge University Press website and on Amazon.
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B
I think I wanna start with history and my producer is tweaking me cause I've become an originalist all of a sudden and all I care about is what the framers thought. But the history of impeachment as covered in your book is kind of new to me. At least the parts of it that go Back to what, 13th century British roots of why impeachment is a thing. So could you go all the way back there to what the British were doing, trying to impeach in a time of monarchy and then we'll build it out from there?
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A
Sure. Impeachment is a British invention. It was invented by the class of Britons, the upper class, the aristocracy and others who made up what we have come to know as Parliament. And it did a number of things during the four centuries after it was invented in the 1300s. One of them was kind of a housekeeping kind of mechanism to kind of get rid of mid level Crown officials who were up to no good and couldn't be removed in other ways. But the function that it served that's most important for our purposes is that Parliament used impeachment to strike back at efforts by the King, sometimes the Queen, to impose tyrannical rule. Now, of course, British impeachments could not remove the monarch. That could only be done essentially by bloody revolution. But British impeachments did the next best thing. They recognized Parliament did that to a large extent. Personnel is policy. And if you want to throw a monkey wrench into the potentially oppressive policy of the King, one of the ways you can do it is you can remove the ministers who are carrying out his policy. So they used impeachments to do that. And the mechanism they used was almost exactly the same as ours. The lower house of Parliament, House of Commons, would impeach the official. The upper House, the House of Lords, would try the official once a conviction was obtained, if it was then in British practice, lots of fairly gory stuff could be done. In fact, your titles could be stripped, all your money could be taken, you could be thrown into prison, you could be banished or you could be beheaded. Now that's something of course we've abandoned. But again, the point, from the point of view of Parliament, was to strike at the King's ministers and in that way to provide a counterbalance to overweening royal power. And that went on for some four centuries. Now, another important point about British impeachments, a technical point Perhaps one that's become very important for us is that over the years, Parliament began to call the kinds of things for which they impeached royal ministers high crimes and misdemeanors. That term was first used in 1386, and it was used episodically for the next four centuries, up through and including the time when the American founders were writing the Constitution. One of the interesting things that we inherit from the British, in addition to the forms of impeachment and this phrase, high crimes and misdemeanors, is the importantly, again, the idea that it is a way of counterbalancing, overreaching executive authority. But interestingly, the framers, our framers, did some things that the British didn't, because our framers were concerned about some of the excesses of Parliament. They didn't want officials to be beheaded if they were impeached. What they wanted instead was simply a mechanism by which they could remove presidents or judges who were misbehaving. And it was designed by them to be a purely political counterweight to presidential power and sometimes to judicial misbehavior. Therefore, they got rid of all the really nasty, bloody punishments and specified in the Constitution that the only consequence for an American impeachment would be either a, removal from office or B, if the Senate goes a little bit further and has a special vote barring the impeached official from federal office for life.
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B
I actually want to go back and talk about this language of high crimes and misdemeanors, because it's the title of your book. In your introduction, you talk about how nobody quite knows what that means. I feel like I've listened to 20 podcasts in the last two months, Frank, that try to define what high crimes and misdemeanors means. And I think, correct me if I'm wrong, even Donald Trump has said, well, since they found no crimes, I'm off the hook. High crimes and misdemeanors does not, as a term of art. And we can go back to the 1300s in Great Britain if you want, but it did not mean you had to have committed high crimes or have a jaywalking ticket, right?
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A
No. High crimes and misdemeanors is not a phrase you can take apart word by word. And most importantly, it doesn't mean what you think it means. Put it this way, some crimes, indictable, punishable crimes, are plainly impeachable. But not all crimes are, even if indictable and criminally punishable are impeachable. Classic recent example of this, of course, is Bill Clinton's escapades, in which he pretty plainly committed perjury and possibly obstruction of justice, and yet Congress decided ultimately not to remove him for that. But most critically, high crimes and misdemeanors has always included lots and lots and lots of behavior that isn't criminal. Broadly speaking, it has included for many centuries, things like subverting the rule of law generally without necessarily it being a crime. Abuse of the pardon, power, various kinds of electoral or political misconduct, lots of kinds of corruption, even if not necessarily criminal. Serious foreign policy errors were impeachable in Great Britain on many occasions. Gross dishonesty of various kinds is impeachable. At least that's been the record both of England and also the record of the United States. Although we have used impeachments very, very rarely, only 20 or 21 times has an impeachment even been tried for any federal official since 1788, and only three times, seriously, for presidents. But even that limited record tells us that high crimes and misdemeanors doesn't mean criminal offenses. What it means is offenses against the society and its political character, serious efforts to undermine the constitutional order. At least when we're talking about presidents, it turns out that the standard for judges has generally been thought of to be a little bit different, largely because of the fact that they're appointed for life and so forth and so on. But since the debate today is really about presidents, the important point to remember is that the British themselves, and they used this kind of language. They talked about impeachable offenses as being efforts to subvert the constitution of the country. And that's certainly the case today in.
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B
The United States, just because I'm still fascinated with the history. Take us just briefly through the colonial period, and once you cross the pond from the British system, you've described how impeachment was thought about in the colonies with an eye frame toward helping us understand when the framers finally put it into the Constitution, what is it that they're thinking about?
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A
Let's talk about the colonial period. It turns out, as you say, that impeachment was not a phenomenon limited to Great Britain. The folks who started what became ultimately the 13American colonies over the years imported this idea of impeachment. And they, with varying degrees of success in their colonial legislative assemblies and impeached officials. Probably the most interesting of these for our purposes now is in 1774, two years before the Declaration of Independence, a year before fighting breaks out in Lexington in Massachusetts, the Massachusetts legislature impeaches a guy named Peter Oliver who was the high court justice of the Massachusetts colony. And they impeach judge Oliver because. And I have to back up and explain a little bit. In colonial times, the colonial legislatures were very insistent on trying to maintain some kind of control over the judges who applied the law in their colonies and to make sure that those judges weren't totally under the thumb of the king. And so they paid the colonial judges from appropriations by the colonial legislature. Well, as the colonists were starting to get restless, the king's officials realized that they needed to get a little better handle on these judges so that the colonial, or rather the crown officials, could control the administration of justice somewhat more closely. So parliament passed a bill which said, from now on, judges in the colonies are going to be paid by direct appropriation from the king. The colonists, particularly in Massachusetts, went nuts because this was an effort to remove the control of local judges from them. And so the Massachusetts legislature put immense pressure on the local judges not to take these salaries. Only one of them agreed to Peter Oliver, and the Massachusetts legislature immediately impeached him on the grounds that accepting a royal salary was, in fact, a bribe. And they characterized that offense as a high crime and misdemeanor. Now, there are a couple things that are interesting about that. First, you'll notice it's not really a crime. It's plainly a political offense. Second, you'll notice that what they're doing here is that they're using this mechanism to make a political statement about an executive authority which is trying to meddle in their affairs, and they're trying to push back. The third thing to notice is that a number of the people who were involved in that impeachment effort and who in fact voted for using this term high crimes and misdemeanors to refer to what was plainly a political offense by judge Oliver, were actually directly involved in the constitutional convention. Moreover, that case was known up and down the Atlantic seaboard among all the other colonists. They understood that impeachment was a political tool and that it was a political tool that could be used against executive overreach. Another interesting item about the Oliver impeachment is that Oliver was impeached but never removed because the royal governor of the colony at that time, Thomas Hutchinson, essentially dissolved the legislature before the upper house could try him. Now, some people may think there's a certain resonance there with the current situation, but one of the things I argued in this slate piece that I know you've had a chance to look at, is that sometimes ineffective impeachments, or rather impeachments that don't result in conviction can be politically effective in establishing certain principles and indicating to the executive authority that it's stepped over and it's gone too far. The Oliver case was, and the principle for which it stood was so important to the colonists that this business about controlling the salaries of judges actually made its way into the list of complaints that Thomas Jefferson writes into the beginning of the Declaration of Independence. So Oliver remained in office, at least briefly, but the colonists won their point and established a principle about the relationship between the colonies and the Crown that endured after the trial, or the lack of a trial.
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B
So actually, this leads me to this question that I have been trying to think about. When I map, the original anxiety you posit is British aristocrats trying to check the Crown, and they can't get at the Crown, so they get at the Crown's next tier. And that seems such an improbable thing to import. Now, you've described in the colonies, again, this effort to get out from under the thumb of a monarch. How is it that the framers who are living this history you're describing, Frank, they've built this system of three branches. It's meant to check itself. They're not worried about monarchic control. What is it about this idea of impeachment that is attractive to them, despite the government that they've built that doesn't include a king and his functionaries?
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A
First of all, I think it's important to understand that this idea of impeachment had become sort of part of the air. It was one of the commonly shared notions that executive branch officials, and for that matter, misbehaving judges, should be impeachable by the legislative branch. And Americans had imbibed that from England. What's more, they'd actually already put it into place in their own American constitutions. In the period between 1776, when the Revolution began, and what we now know as our Constitution was written in 1787, 88, all of the American states had actually written constitutions. And I think 12 of them, 10 or 12 of them actually had written impeachment into their constitutions. And obviously they didn't have monarchs. So part of it was this had become kind of a part of the landscape, part of the governmental furniture. But when Madison and the rest of them sat down to create the three branches of our government, of course one of the things that they did was they created a president, which is something that the Articles of Confederation under which they'd operated since 1776 didn't have. It didn't even have an executive branch. They created this president. They created a president with four year terms. @ that time, the president could keep running for reelection indefinitely. They actually thought of the president as being likely to be a fairly weak office. But they were also certainly aware that he might not be weak, that he might be able to exert his personality and the powers that they'd given him to become troublesome and tyrannical. And for them, the four year term was actually really long. None of the state governorships that had been installed in any of the state constitutions up at that point had anything like a four year term. Annual elections were really kind of the norm. So they created this president who they thought maybe could be dangerous. They'd given him a four year term and they realized that there might be circumstances under which this person could get out of hand. And so they wanted to be able to have some way of getting rid of him if during that four years he either exhibited criminal behavior and therefore essentially destroyed his own personal legitimacy, or he began to behave in ways that were potentially tyrannical, to behave in ways that would undermine this constitution that they were setting up. And they settled on impeachment as the way to do it. Notice that when they settled on impeachment, they adopted basically the same mechanism that Parliament did back in the 1300s. The lower house impeaches the upper house convicts. And they reach back for this old term that Parliament had been using for centuries to describe the kinds of things for which people could be removed. Now, a really important point is that they limited the penalties. No more beheading anybody, no more imprisoning them. That kind of penalty, by the Constitution's own terms is restricted to imposition by the courts. Impeachment only permits you to be removed from office. And I think they did that one because they didn't like the. Some of the English impeachments are pretty gory and potentially kind of unfair, and they didn't like the feeling of that. But they also, I think, wanted to make impeachment easier to use. It's perfectly plain from English history that in a good many cases the House of Lords was reluctant to convict pretty plainly guilty officials because they didn't want their heads chopped off or their estate seized or all the rest of it. The American framers were well aware of that history and they wanted a remedy against an overreaching president that wouldn't require them to have him imprisoned or executed. That would could simply be a political tool to remove a political.
- [19:45]
B
Problem. Can you talk for a minute about the role that they anticipated for the judicial branch. Because again, I shudder to do this, Frank, but I do think Donald Trump at some point said, well, if they try to impeach me, the court will step in. I know that there was some debate around this, but I think most Americans are surprised to learn there's no role for the judiciary in. Now you've said over and over again, Dalia, this is a political process. Of course there's no role for the judiciary. But I think that's surprising to folks. Why does the judiciary play no part per the.
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A
Framers? Well, they play a sort of semi ceremonial part. That is to say, if there is a trial in the Senate, it is presided over by the Chief justice of the Supreme Court. But even in that role, the Chief Justice's role is really pretty ceremonial. Now, you're right. What we lawyers would say about this is that the decision by the House to impeach, meaning charge somebody and a decision by the Senate to convict someone and therefore remove them is non justiciable. It's simply not something that a court can review. Now, I know that there are a couple of people out there who have suggested that maybe it is. Alan Dershowitz, in one of his many wild recent moments, argued that somehow or other that a court could review either an impeachment or a conviction. I just think that's nonsense. I think there is no indication anywhere in the text of the Constitution, in the history of the writing of the Constitution, in British history, from which the framers derive their thinking for any role for the judiciary. This is expressly political choice. And indeed, the framers actually thought very carefully about whether or not the judiciary should have some role. During the summer of 1787, most or a number of the original proposals about who ought to conduct impeachment trials, almost all of them originally involved judges. Some framers said, well, it ought to be a Supreme Court, and other framers said, well, it ought to be some group of state court judges. And that other folks had various kinds of hybrid arrangements with some judges and some other people. And in the end they simply threw all that aside and they said, no, the proper venue for the decision here is Congress. It's a political choice. And people who are responsible to the electorate, broadly conceived, are the folks who need to make.
- [22:19]
B
It. And Frank, did the you said they reached way back across the centuries. They airlifted high crimes and misdemeanors. What did it mean to them? Did it mean functionally the same thing that high crimes and misdemeanors meant to your British lords in the.
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A
1300S. That's the perennial question. Right. But of course, it's just a variation of the perennial question we get into when we argue about the meaning of constitutional language. You get into debates about originalism and so forth and so on here. But I think with respect to high crimes and misdemeanors, with respect to that particular term, even if one is a staunch originalist, I think one can have a pretty good sense of what it meant, much better sense than we have for lots of other kinds of terms. There's a little bit of a debate among people who study this sort of thing about whether or not the framers, particularly George Mason, who actually introduced the phrase into the Constitution, James Madison, who engaged in a famous sort of colloquy with him about it, whether they really understood the English parliamentary history that produced high crimes and misdemeanors. Some people say no, they didn't really know that much. I just think that's bunk. As I talk about in detail that would be attractive only to a historian in one portion of the book, I think the evidence is really very powerful that certainly George Mason, certainly Madison, and in fact, a great many other folks there sitting in Philadelphia in 1787, understood exactly what the history of British impeachment was, and they understood exactly that. In adopting the phrase high crimes and misdemeanors, they were in effect saying, look, henceforward, in the United States of America, federal officials can be impeached for the kind of stuff that Parliament has been impeaching British officials for the last four centuries. And happily, therefore, we can go back and take a look at what Parliament did, and we also can have reasonable confidence that the people there in Philadelphia had a pretty good sense of what Parliament did, and we can get a pretty good idea of what they meant. And it's exactly what I said before. I mean, there's some classifications of impeachable offenses that Parliament had often returned to. But the basic idea, the idea that George Mason was plainly driving at when he introduced this high crimes and misdemeanors, was the idea that it is absolutely essential that we have a tool, particularly with respect to the president, of taking out somebody who represents a real threat to the constitutional order, who is behaving in a way which either dramatically and cripplingly undercuts his own personal legitimacy or is a real threat to this constitutional structure that we're building here in Philadelphia. That's what they meant. We get echoes of that from Alexander Hamilton in Federalist 65, who famously talks about impeachable offenses as being those which are in their nature political. By which, again, he meant the kinds of behavior, particularly by a president, that really strikes at the heart of the political order. That's what they were most concerned about. And I think we can have considerable confidence that not only is that what they meant, but that to conceive of high crimes and misdemeanors in any other way is to remove an important tool of the legislature against potential executive.
- [25:59]
B
Tyranny. We know you value the journalism here at Slate, and now more than ever, this work needs your support. The best way to support our work is via our membership program, Slate Plus. And with the Slate plus membership, you can enjoy this and all Slate's podcasts ad free. Plus you'll have access to exclusive bonus content from some of your favorite Slate shows. There's a free trial to be found@slateplus.com amicus and now back to our conversation with Frank Bowman, author of High Crimes and A History of Impeachment for the Age of Trump, which comes out later this month. Can you detour for one second and talk about the House of Representatives in 1804? It impeaches Supreme Court Justice Samuel Chase, and then we just stop impeaching justices. But can you talk you mentioned at the beginning we sort of hold justices to a different standard, and that whole episode taught all of us to be a little bit more careful about impeaching judges, and also justices become more careful about being impeached. But can you talk about sort of the branch of this tree that is impeaching.
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A
Justices? Well, Samuel Chase is the only Supreme Court justice that anybody's ever tried to impeach, and it was unsuccessful. Actually, almost all of the successful impeachments have been of lower court judges. We impeach them with a fair degree of regularity. And one of the reasons we do that, of course, is that they.
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B
Are. Wait, now, that's 14 judges total. Right. Have been.
- [27:36]
A
Impeached. So there's 15 or.
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B
16. But that's not regularity the way we think. I mean, you're right, we only tried to impeach one Supreme Court justice. But we don't use this as a tool to remove judges very.
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A
Often. No. Albeit we use it to remove judges more often than any other kind of official. Among all the federal officials who we've ever tried to impeach, there's three presidents, one senator, one secretary of, and all the rest of them are.
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B
Judges. Okay, so talk about Samuel Chase, who they impeach.
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A
Unsuccessfully. A majority of The Senate votes to impeach him, but they don't achieve the 2/3 threshold. What's going on there is this is early days. Remember, the Constitution has only been ratified in 1788. So this is only 16 years after the country is essentially up and running. And so it's kind of unclear what the relationships between the branches are going to be and what roles they're supposed to perform. For example, would it be okay for justices to end judges in their lower court roles to be quasi political figures? Should they be making political statements? Should they be openly affiliated with political parties? There was also some shenanigans surrounding the election where Thomas Jefferson becomes president, where his predecessor jams the federal bench and other federal offices full of Federalist appointees right before Jefferson takes office. And Jefferson's fairly ticked off about this. So he's looking around for ways to get rid of some of those lame duck officials. And he's also perhaps looking around for a way to get rid of some of these judges. And one of the people that his political allies focus on is Samuel Chase, because Chase has been, up until his appointment to the bench, an overtly partisan political figure who, while he's on the bench, has a tendency to run his mouth, perhaps in places when he shouldn't, when he's on the bench, when he was addressing a grand jury in one case and making partisan political pronouncements and also potentially ruling from the bench in ways that reflected partisan bias. So people allied with Jefferson and generally just opponents of Chase, tried to impeach him. And the conclusion was ultimately, yeah, he's behaving in partisan and annoying kinds of ways that we really perhaps don't like. But in the end, the Senate decided that that wasn't impeachable conduct, that wasn't a high crime and misdemeanor. Nonetheless, it turns out that that was an important shot across the bow of the federal judiciary. And even though Chase kept his office, I think we can say that from that point forward, the country learns sort of two lessons. On the one hand, we're not going to impeach judges just for making kind of intemperate statements or mild indications of partisanship. On the other hand, the judges learned a lesson that they needed to be very careful about being nonpartisan and appearing to be so and being both neutral and appearing to be so. And that the Chase, the unsuccessful Chase impeachment, I think established or at least helped establish a norm of judicial behavior that has endured pretty consistently.
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B
Since. To the extent that we can take away a lesson from the House of Representatives impeaching Justice Chase. It feels like everybody realized that a we're gonna stop threatening to impeach all the judges for being political. And judges took away the lesson that maybe we shouldn't be political. The system works as a kind of cautionary tale. Then we start talking about impeachments of presidents, and it seems like the system doesn't work because as you detail in the chapters around Andrew Johnson, Richard Nixon, Bill Clinton, the three presidents we've at least initiated impeachment against. I think your argument is we take all the wrong lessons and everybody learns completely the wrong thing from those three efforts. Am I overstating the.
- [32:01]
A
Case? I think sometimes people do learn wrong lessons. But the other thing to say about presidential impeachments is that you're correct in observing that in many respects, the framers intended impeachment to be an easier thing than it had been, certainly in Parliament, by making the penalties last, by making this essentially sort of a political cleanup operation and nothing more. But of course, they did this other little thing. They put in the two thirds requirement in the Senate, and that made impeachment procedurally very hard. If we're going to ask what did the framers mean, do they mean this to be easy or do they mean it to be hard, I think the answer is complicated in one way. Because they made this a political process and they placed in the hands of the House and the Senate, and because they used this incredibly flexible term for impeachable conduct, high crimes and misdemeanors, and because they reduced the penalties, they certainly meant for the country to be able to say, look, we can impeach a president whenever we should, but by introducing the 2/3 requirement, they made it complicated and hard. And the question is, how hard did they mean to make it? Some people have suggested recently that they meant to make it virtually impossible. I don't think that's the case. If you look at other places where they use 2/3 supermajority requirements in the Constitution, it's plain they didn't mean those to be impossible. Let's think about the making of and ratification of treaties back in the 1700s. The folks at that era tended to think of foreign policy as being conducted as between sovereign nation states. And the characteristic and important act in those relations was the formation of treaties. And that's why they spent a dollar and much time in the Constitution worrying about that, who could make them, who could ratify them, and so forth, so on. And the Constitution says that in order for a treaty to be ratified, 2/3 of the Senate must ratify it. I think it's perfectly clear they didn't mean to say that foreign policy should be impossible because they conceived foreign policy as being conducted through the treaty. They just meant that certain things should be thought about really carefully before people proceeded. I don't think that they imagined that that impeachment of a president would be impossible with a 2/3 majority. But I think things have changed. Things culturally, things in terms of media and communications, things in terms of the partisanship of our politics have changed so dramatically since that era, and indeed since the 70s when Nixon faced his troubles, that it may be that that old 2/3 requirement now makes impeachment functionally impossible. But it's not because the framers meant to make it that.
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B
Way. Frank, you covered the efforts to impeach Andrew Johnson, Richard Nixon, and Bill Clinton in amazing, fascinating detail. But could you just, in the interest of time, tell me the single most interesting thing none of us know about the impeachment of Andrew Johnson.
- [35:13]
A
Please? First of all, of course, the Andrew Johnson impeachment is incredibly complicated and fascinating and is wrapped intimately into the history of the end of the Civil War and the Reconstruction period. And it just deserves so much study. But if you want one quirky point or interesting fact about it which is a little bit relevant to the current circumstances, in the end, Andrew Johnson survives impeachment, or survives. He is impeached, but he survives conviction by one vote. It wasn't necessarily because he didn't do what he was charged with, or that the huge Republican majority in the Senate didn't want him out of office. But by the time they got around to impeaching him, it was May of 1868, which meant that the election was only less than six months away. And what's more, a lot of the Republicans who were his opponents in the Senate were very reluctant to remove him because under the succession rules of the time, remember, Johnson didn't have a vice president because he'd succeeded to the presidency after President Lincoln had been assassinated, and there wasn't any provision for replacing vice presidents in those days. But under the succession rules of the time, the person who would have become president is Ben Wade, who was then the president pro tem of the Senate. And lots of people in the Republican Party didn't like Ben Wade, even though he was a Republican himself. He was thought of being this wild radical. He was in favor of crazy stuff like giving votes to women, for God's sake, not to mention rights to labor. And he probably wanted to give more rights to the black freedmen than the average person, even in the Republican Party, did. And so it was often said at the time that Johnson survived impeachment primarily because people didn't want Ben Wade to be president, not because they liked Andrew Johnson very much. It was also true, of course, that because the Republicans had waited around so long and it was only six months before the election, was generally thought that it probably wasn't worth the candle. Now, you can see some immediate parallels to our current circumstance. Certainly, if the House of Representatives ever gets around to a formal impeachment inquiry about President Trump, it's deeply unlikely that they would finish it up before the early part of next year, at which point we're going to be in much the same situation that the Republicans were in 1868 with respect to Andrew Johnson. So there are interesting parallels all.
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B
Over. In your book, you say, and I think this is right, that the role of the press and polarization have changed profoundly since the 1970s, and that it's really hard to take general lessons. I'm thinking of John Dean testifying about Analog between, you know, his experience in Watergate and today, and I hear you saying in the book that the media world and the political world and even the world of the parties was so fundamentally different in the 1970s that it's very, very hard to triangulate against lessons from.
- [38:34]
A
Watergate. It is, although I'm personally sort of tempted to do it because I'm old enough that Watergate was a formative experience for me. I was in college at the time the Watergate hearings, both in the Senate and the House, were going on, and I, and pretty much everybody else in the country watched all or most of those things obsessively. The fact that I can say that to you tells you something immediately about the media environment at the time. First, it was a media environment in which, of course, there were only three major networks, but all of them, or at least as between the three of them, they covered those things gavel to gavel. There wasn't a lot of other noise. And people watched. They were riveted by what was happening in front of them in Congress. And of course, now, even if the House summons the courage to commence a formal impeachment inquiry and starts to hold formal hearings, there's a serious question about who's actually going to watch. And that makes a huge difference, because when the Nixon impeachment drama began shortly after really, Nixon's reelection in 72, and when the idea of impeachment was first bandied about something like 25% of the electorate had any enthusiasm for impeaching Nixon at all. It was the constant drumbeat of news because the media had a big role to play back then in disclosing Watergate, but the constant exposure of the careful work of the Senate Watergate Committee and the House Judiciary Committee that gradually not only exposed the facts, but changed people's minds. So a year and a half, two years later, by the time Nixon resigns, at that point, his base of support had gone down to about 25%. And it was the powerful educational effect of Congress holding these hearings in a media environment in which everybody was. Now the other thing, of course, that's changed dramatically is the positions of the parties and the members with respect to this kind of controversy. What's incredibly remarkable, and it makes me feel so nostalgic to watch any of those hearings, is that although this was an effort to investigate and ultimately remove a Republican president, and the Republican Party was certainly not happy about that, its elected representatives at the least took the fact finding component of that inquiry seriously. Once the facts were reasonably well disclosed, many of them were certainly prepared to argue about their implications, to say they don't really amount to an impeachable offense and so forth and so on, but virtually to a man and woman, they cooperated actively in investigating Richard Nixon's misdeeds. They themselves, by asking questions, and the counsel and staff that they hired were partners with the Democrats in finding out what the facts were. That's an environment which is almost inconceivable today. And that's why as much as a part of me would very much like to see the House of Representatives commence a formal inquiry, at least to help engage the public in this educational exercise of figuring out what the Constitution means and whether the current President is really endangering its fundamental principles and operations. As much as I'd like to see that, I'm skeptical that Congress has now constituted could do.
- [42:07]
B
It. I've been thinking about you in the last couple of weeks, Frank, when I've been watching these attempts to turn the Mueller report into a graphic novel and then go up to Riverside Church and have John Lithgow read the Mueller report with a star studded cast, because I think it makes and now the prospect of Mueller actually testifying on July 17, I think it makes the same point you're making, which is fundamentally the use of an impeachment process. At least starting the inquiry is an educative one. You want people to learn things. And I think what you're describing is what if they held an impeachment and nobody came right? That nobody, all the people who didn't read 448 pages of the Mueller report may be the same people who just don't care. And that is different both from Nixon. But I think you would also maybe agree even from Clinton, people may have thought it was frivolous or not, but at least they tuned in. And it seems as though what you're describing, which is this aspirational part of it, which is we want to air this out and have a process. And it feels like you're saying in many, many ways, as a function both of the media landscape and the political landscape, it would matter almost not at.
- [43:31]
A
All. Well, I know the hopeful part of me, the patriotic part of me, if you will, wants to believe that while it's undoubtedly true in the current environment that there's some segment of the population that simply can't or won't be reached, that there's also a significant population which makes up a part of the voting population. Certainly in the end, for the next presidential election, they can be reached, that if Congress, and I say Congress is an institution, not one part or the other, if Congress does the job that the Constitution envisions for it, of at least inquiring into whether or not the president is fulfilling his responsibilities, that if Congress does that, that people can be induced to listen or at least enough of them to matter. Now, there's plenty of counterarguments to that. I mean, one of the things that's different about Clinton was that the whole Clinton mess, it wasn't that long ago, but it occurred before the fracture of the news and media environment into its current sort of polarized state. Fox News essentially hadn't been invented yet, and media outlets on the left to counter the Fox effect hadn't begun to arise. And so, and that's only really 20 years ago or so, people didn't receive so much of their information from siloed outlets so that they didn't get the other side. Clinton escaped in the end because a consensus arose that he was in many ways a kind of a vile, predatory liar, but that that particular set of sins didn't amount to a constitutionally consequential offense. Granted, there was lots of partisanship in that determination, but he survived because the country as a whole basically came to that conclusion. And it came to that conclusion because there was still a possibility for people who consumed news in the ordinary way to arrive at some sort of shared consensus about what the facts were. Clinton didn't survive because there was any disagreement about what he'd done. He survived because everybody knew what he'd done and decided that constitutionally, we didn't care. In the current environment, it's not clear to me that it's even possible to achieve sort of general consensus on what the facts are, much less their constitutional consequence. I mean, that, you know, again, as an American patriot, that that prospect just frightens me to death. Because if I'm right about that, then we are closer to losing the Republic than we think. Not just because we can't impeach one president. I mean, after all, the other thing to be said about the framers is that for a while they decided they were torn on whether or not even to have impeachment because many of them thought, well, we've got these elections and quadrennial elections should be sufficient to get rid of a sufficiently degenerate president. They ultimately decided that wasn't enough. They decided that the danger was real and they needed a weapon against it. But we may be at a point where at least that particular weapon against executive tyranny is no longer functionally available to us. And that means, while in and of itself it doesn't take us to destruction of the constitutional order, it certainly means we have one less tool to hold us back from that ultimate.
- [47:21]
B
Collapse. Frank, why did the Framers single out and name check treason and.
- [47:28]
A
Bribery? Well, because those two categories had been the most common kinds of, well, among the common ways of impeaching or grounds for impeaching British officials. Now, interesting thing about treason is that in British practice, people were impeached for treason all the time. But one of the complaints about the parliamentary process is that treason in British practice was an incredibly flexible sort of crime. And there are often complaints during the impeachments. Wait a minute. The stuff you're calling treason really isn't treason by any previously accepted definition. And therefore you're just going around executing people for being opponents of the Parliament in some way. You know, I'm sure that treason is the only crime that's actually defined in the Constitution. And its definition is limited to essentially waging war against the United States or giving aid and comfort to its enemies. An infinitely narrower definition than was previously available. One of the reasons they included it was because certainly treason against the country is a pretty darn good reason to remove a president or anybody else. But they restricted the definition because they didn't want the sort of wide ranging practice of charging people for any kind of subversive or oppositional activity, calling it Treason and then impeaching, folks. But to really recount all the ebbs and flows of the constitutional summer of 1787 is more than we want to do here. What I can say is that the definition of what would constitute impeachable conduct started out very broad at the beginning of the summer, including basically any kind of mismanagement, as well as any regular crimes that got whittled away to treason or bribery. And then in September of the session, George Mason stands up and says, I don't like treason and bribery. That's too darn narrow. How about.
- [49:26]
B
Maladministration? Ooh, that's.
- [49:29]
A
Catchy. Maladministration. Yeah, it was used often in lots of the impeachments. In fact, it was used in many of the state constitutions that had been in place prior to 1788. But Madison then rises and says, well, that's in effect, that's too broad. If we're going to go impeaching people for maladministration, that that's going to make the president, in Madison's terms, simply a creature of the Senate. Whereupon Mason thinks about it a little bit and says, in effect, well, you don't like maladministration. How about high crimes and misdemeanors? And everybody looks at each other and says, that sounds great, let's do it. Now, of course, that's not really what happened. We don't really know exactly what they said when they were trading those phrases back and forth. But one of the ironies of the movement from treason and bribery to treason and bribery, or maladministration to treason, bribery or high crimes and misdemeanors is that it's perfectly plain that high crimes and misdemeanors in British parlance, actually included maladministration. And it's pretty plain that Mason knew that and probably Madison, too. But what I think Madison was trying to suggest by objecting to maladministration is we don't want particularly presidents just to be removed because the Congress is dissatisfied with the job the President's doing. It needs to be more than that. Doesn't have to be actually criminal, but it has to be something that really strikes at his legitimacy or really strikes at undermining the constitutional order. And high crimes and misdemeanors, I think, felt more like that for him and other people who were.
- [51:06]
B
There. So then you go through point by point that impeachable offenses include, and then you talk about the lying and corruption, the self enrichment, the emolument, stuff the abuse of the pardon power. And that brings me to the piece you mentioned earlier that you posted in Slate a couple weeks ago, where you essentially said, look, we can't get so bogged down either in these lessons of history, be it Clinton or Watergate, or in these technical questions or in these political calculations about maybe this is going to rebound and be bad for us. I think your concluding point is the constitutional health of the country requires that Donald Trump be impeached, because that is what, as you said, this is destroying the Constitution itself. Is that a position you started with when you started undertaking this research or was kind of delving into all of the history of the Stewarts and everything that came after? Did that inform the way you now think about the role impeachment.
- [52:24]
A
Plays? Well, let me see if I can break that down into a couple of pieces. First, if you asked me the question, do I think impeachment that the current president of the United States, Donald Trump, has engaged in conduct which as a matter of history, constitutional text and American practice can fairly be characterized as impeachable, I think the answer is plainly yes. At minimum, volume two of the Mueller report makes out a case for obstruction of justice in both the statutory sense and also in the broad constitutional sense, which was the basis, for example, of at least one of the counts of impeachment adopted by the House Judiciary Committee against Richard Nixon. Moreover, I think there are other grounds for considering his impeachment. The blanket resistance to essentially any congressional inquiries about the operation of this administration is verging on impeachable conduct, if it hasn't already reached there. And indeed, I think the degree of that resistance is has been reported, but perhaps not completely reported. It's clear to me from talking to folks on Capitol Hill that the administration has essentially effectively stopped cooperating with legitimate congressional inquiries across the entire range of governmental operations. And that essentially threatens one of the essential interrelationships between two branches of the government. I think that's if it isn't already impeachable, it's certainly getting there. And a number of the other areas that that you mentioned are certainly possibilities. Second question, would I necessarily say to Speaker Pelosi, gosh, I think it's absolutely imperative that the House impeach this guy. I think today, and I may think differently tomorrow, I think today that it would be a good idea to at least commence a formal inquiry on impeachment against the president, among other reasons, of course, because once you do that House representative's power of compelling the production of witnesses and information is infinitely stronger than it is even for the general oversight power, but also for the reason with which I think we began, which is that I think one of the roles of impeachment has always been educational. It's defining impeachments not only remove miscreants, they also inevitably involve conversations about what we think the Constitution means and how the branches should relate to each other, how we're supposed to live with each other, how the constitutional order is supposed to work. And it is troubling to me that for reasons that may make perfectly sound political sense, and I'm never going to second guess Nancy Pelosi on matters of politics, but for whatever reason, the House seems to be unable or unwilling even to open that conversation. It doesn't seem to trust itself or the American people to listen long enough to form an educated opinion either about what this man has done or whether it's the kind of behavior that we ought to tolerate in a constitutional democracy. And that's pretty darn disheartening. So I guess that's as far as I can go.
- [55:53]
B
Today. Frank Bowman is the Floyd R. Gibson, Missouri Endowed professor of Law at the University of Missouri School of Law. He's a former federal prosecutor. He writes about impeachment at Impeachable Offenses and is a free frequent contributor to Slate.com his new book, High Crimes and A History of Impeachment for the Age of Trump, will be published by Cambridge University Press this summer. Frank, thank you so much for coming on the show. I learned a.
- [56:25]
A
Ton. It was delightful. Anytime. Happy to chat with you about.
- [56:29]
B
This. And that's a wrap for this episode of Amicus. Thank you so much for listening. If you if you'd like to get in touch, our email is amicuslate.com and you can find us@facebook.com AMICUSpodcast Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is senior managing producer of Slate Podcasts. We'll be back with another episode of Amicus in two.