All of the Impeachable Offenses

Focusing on the Mueller report alone risks leaving out the obvious.

Donald Trump
Erin Scott / Reuters

Ever since the release of the Mueller report, old-guard Democrats have held back on the question of impeachment. Though House Majority Leader Steny Hoyer walked back his comments that impeachment was “not worthwhile,” he set the tone for his party’s skepticism of what, Democratic leaders warn, could be a politically risky move. Meanwhile, the president announced on Twitter, “Only high crimes and misdemeanors can lead to impeachment. There were no crimes by me (No Collusion, No Obstruction), so you can’t impeach.”

Unsurprisingly, Trump is wrong—and Democrats reluctant to impeach on the basis of the Mueller report alone should consider that the report only added to a preexisting pile of potential “high crimes and misdemeanors.” A large majority of scholars agree that impeachable offenses are not limited by the criminal code; the best definition of impeachable offense comes from the legal scholar Charles Black, who argued in 1974 that the president may be impeached for “offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.”

Even setting that aside, the Mueller report sets out substantial evidence that Trump criminally obstructed justice in at least some instances. The former Justice Department and FBI official Chuck Rosenberg has said that, in the absence of the Justice Department guidelines against the indictment of a sitting president, as a prosecutor, he would have brought an obstruction case against Trump. Former U.S. Attorney Preet Bharara and former Deputy Attorney General Sally Yates have made similar arguments. And while lawbreaking is not required for impeachment, it is notable both that all three serious efforts to impeach a president in U.S. history have involved allegations of legal violations and that two of those three instances—against Richard Nixon and Bill Clinton—concerned criminal behavior, specifically obstruction of justice.

But any discussion of impeachment that focuses on the Mueller report alone, much less the possible criminal conduct detailed in the report, risks leaving out the obvious. The potentially impeachable offenses committed by the president go far, far beyond the scope of what Mueller investigated. Any impeachment inquiry should consider that conduct as well.

For example, Benjamin Wittes and Jane Chong, my colleagues at Lawfare, argued way back in August 2017 that Trump’s pardon of former Maricopa County Sheriff Joe Arpaio merited consideration in an impeachment inquiry. Arpaio, remember, was convicted of criminal contempt for his refusal to cease detaining people only on the suspicion that they had flouted immigration law. According to The Washington Post, Trump first asked then–Attorney General Jeff Sessions whether the Justice Department could drop the prosecution of Arpaio, then decided to pardon him if Arpaio was convicted at trial. How else to describe this process but as abuse of power?

What about his recent instructions to Border Patrol officers, as reported by CNN, to disobey the courts in turning back asylum seekers? His repeated calls for the criminal prosecution of his political rivals? His demands for the U.S. Postal Service to dramatically raise rates for shipping Amazon packages, for no obvious reason other than to punish Amazon CEO and Washington Post owner Jeff Bezos? His rescinding of the security clearances of a number of his high-profile critics, including former FBI Director James Comey and former CIA Director John Brennan? Or consider his repeated decisions to overrule his own intelligence agencies in declassifying sensitive information related to the Russia investigation in order to score political points, with apparent disregard for the potential consequences to the country.

Chong and Wittes have pointed to another category of potential offenses: failures of moral leadership. Here, too, the list is so long as to be impossible to reproduce in a paragraph, but to name a few: Trump’s attacks on the press as “fake news” and “the enemy of the people”; his declaration that the white nationalists and neo-Nazis marching in Charlottesville were “very fine people;” his description of Haiti, El Salvador, and various African nations as “shithole countries;” his repeated—and arguably libelous—abuse of private citizens as having committed treason; his lies—which, by The Washington Post’s count, now number more than 10,000.

Some of these instances more obviously fit within the description of “high crimes and misdemeanors” than others. One might object that many of Trump’s actions, ugly and petty though they might be, are not “extremely serious,” as Black put it—and, indeed, Black wrote that “general lowness and shabbiness ought not to be enough.” Still, I’m inclined to agree with Keith Whittington, who has suggested that high crimes and misdemeanors might, at a certain point, be treated cumulatively. “If Republican senators were forced to examine each such charge in turn,” Whittington wrote in August, “they might well find the president’s actions disquieting and misguided and yet not impeachable. The accumulation of such charges might, however, push the case for impeachment and removal over the line.”

Any discussion of “cumulative” high crimes and misdemeanors likewise has to include Trump’s conduct regarding Stormy Daniels. Talk of impeachment spiked in November 2018 after prosecutors in the U.S. Attorney’s Office for the Southern District of New York alleged that Trump’s former lawyer Michael Cohen had acted “in coordination with and at the direction of” his then client in what prosecutors charged was a criminal effort to violate campaign-finance law: Soon-to-be House Judiciary Chairman Jerry Nadler said that Trump’s involvement was “likely impeachable,” though he distinguished between an impeachable offense and an offense meriting impeachment.

In December, Bob Bauer and I argued that the Daniels payments are well within the scope of conduct that should be investigated as part of an impeachment inquiry. The case is somewhat complicated in that the bulk of the conduct at issue took place before Trump became president. But Trump’s continued involvement in coordinating payments to Cohen well into his time in office, and his insistence on lying to the public about the depth of that involvement and the initial relationship with Daniels, are relevant in evaluating the president’s failure as a leader. Consider Cohen’s account, in sworn testimony before Congress, that Trump was signing and mailing checks to refund his fixer for an illegal campaign contribution while sitting in the White House. And if preelection conduct is within the realm of what should be considered impeachable, then perhaps Trump’s involvement in his campaign’s efforts to benefit from Russian election interference—as detailed in the Mueller report—also constitutes an impeachable offense.

Taken as a whole, the picture is of a man who has no concept of the public interest as separate from his own, who has no ability to lead the country morally or even interest in doing so, who has repeatedly breached, in ways large and small, his obligation to “take care that the laws be faithfully executed” and “preserve, protect and defend the Constitution.” Notably, Congress has pointed to violations of the oath of office in impeachment proceedings against Clinton, Nixon, and Andrew Johnson.

Meanwhile, the catalog of presidential misconduct did not stop at the release of the Mueller report. Trump recently declared his administration’s plans to resist “all the subpoenas” headed his way from Congress, and has taken the unprecedented step of suing, in his personal capacity, House Oversight Committee Chairman Elijah Cummings over a subpoena to Trump’s accounting firm. In 1974, along with articles of impeachment for abuse of power and obstruction of justice, the House Judiciary Committee recommended Nixon’s impeachment on the basis that he had “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives … and willfully disobeyed such subpoenas.” The Democratic presidential candidate and former Vice President Joe Biden recently suggested that Congress would have “no alternative but to go to … impeachment” if Trump continues to stonewall congressional investigations.

Like Trump’s cowed performance beside Russian President Vladimir Putin in Helsinki and his initial comments in defense of white supremacists after Charlottesville, the Mueller report—as a chronicle of presidential misconduct—adds useful information, but also clarifies and distills what was already known to be true. Reading the report, I was unable to shake a sense of naive amazement that this person really is the president of the United States. Part of the impeachment process—advocating for an inquiry as citizens, and conducting one on Congress’s part—is the work of maintaining this amazement and horror. It is a project of refusing to accept what has already, somehow, become acceptable.