Rule of Law

OP-ED: Discretion and the Impeachment Power

“Impeachment haunts Trumpland” are the opening words of Larry Tribe and Joshua Matz’s excellent new book on the power of impeachment (1).  Indeed, talk about removing Donald Trump from office began even before he formally assumed office, and it has continued unabated since.  And no wonder: over a year into Donald Trump’s presidency, it’s nearly impossible to keep track of all of the scandals and abuses of public trust associated with this President and his Administration.

This is thus a particularly opportune time for such a thoughtful and comprehensive examination of the impeachment power.  As Tribe and Matz’s exploration of the topic makes clear, the question of whether to end a presidency will rarely, if ever, be a simple one, and will always require the exercise of judgments both legal (has the President committed “Treason, Bribery, or other high Crimes and Misdemeanors”?) and political (do the benefits to the country of removing the president outweigh the consequences of impeachment?).

After all, as they compellingly argue, the “Power of Impeachment” is exactly that: a power, not a duty.  In determining whether or not to impeach and whether or not to convict, “Congress . . . bears the heavy burden of exercising judgment” (78).  And in laying out so clearly the different factors that Congress should consider in deciding whether to impeach, Tribe and Matz provide a new perspective on how we should think about various aspects of the Trump presidency and the impeachment talk that has been “haunt[ing]” it since before it began.  In so doing, they also underscore three different reasons why this President’s actions, just one year into his term, are so troubling.

First, in discussing the “power not to impeach” (70), Tribe and Matz highlight the importance of considering Congress’s other “methods of constraining a president and thwarting his abuses” to determine “whether an alternative strategy [to impeachment] would be more appropriate” (82).  They note, for example, that “[t]he power of the purse . . . allows Congress to exercise far-reaching control over the conduct, policies, priorities, and very structure of the executive branch” (82).  Tribe and Matz are surely right that the power of the purse is normally a powerful tool that Congress has at its disposal to stop executive action that it thinks is unlawful or simply doesn’t like.  But the importance of that power simply highlights how troubling it is that the President is using his private businesses to violate the Foreign Emoluments Clause, a critical anti-corruption clause in our Constitution.

The Framers adopted the Foreign Emoluments Clause because they were deeply worried about corruption and foreign influence; they were deeply worried that our nation’s leaders might be induced to put personal self-interest above national interest.  Since taking office, President Trump has repeatedly violated this critically important provision of the Constitution, and because he is violating it through his private businesses (and not in any way that requires the use of federal funds or personnel), Congress cannot use its otherwise formidable power of the purse to stop this unlawful activity.

Second, Tribe and Matz observe that “Congress’s powers over personnel give legislators a major say in who occupies judgeships, cabinet positions, and agency roles” (82).  Again, Tribe and Matz are surely right that Congress should have a major say in who occupies important positions in the executive branch. But here, too, the importance of that power only highlights how troubling it is that the President has been consistently evading the Senate’s advice-and-consent role under the Constitution.  As I wrote on this blog less than two months into the Administration, Trump at that point had largely failed to nominate people “to fill the hundreds of important agency positions that require Senate confirmation.”  I reiterated this concern earlier this year when more than 300 positions lacked a nominee.  Nearly five months later, there’s been some progress, but not nearly enough: more than 200 positions still lack a nominee, nearly a year and half into the Administration.

And this matters: as ProPublica reported early in the Administration, “While President Trump has not moved to fill many jobs that require Senate confirmation, he has quietly installed hundreds of officials to serve as his eyes and ears at every major federal agency, from the Pentagon to the Department of Interior.”  This presents the possibility, as I wrote back in 2017, that Trump might be “undermin[ing] the Senate’s important role in providing advice and consent to the appointment of individuals who help lead federal agencies.”

Indeed, the President has also been using acting officials—in ways both lawful and unlawful—to install his picks in important executive branch posts without the required check of Senate confirmation.  Last November, for example, the President named Mick Mulvaney to serve as acting Director of the Consumer Financial Protection Bureau, even though the law that created the Bureau makes clear that the Deputy Director “shall . . . serve as acting Director in the absence or unavailability of the Director.”  (A challenge to the legality of that appointment is currently pending in the D.C. Circuit.)  Now, over six months later, the President has still not named a nominee to serve as permanent Director of the Bureau.  And in the meantime, Mulvaney is doing everything he can to undermine the Bureau’s work on behalf of consumers.

The CFPB is perhaps the most prominent example of the President’s unlawful use of the Federal Vacancies Reform Act, but it’s hardly the only one.  Earlier this year, the environmental group, Public Employees for Environmental Responsibility, filed a complaint with the Deputy Inspector General for the Interior Department, requesting that it review “the occurrences and implications of what appear to be blatant violations of the Federal Vacancies Reform Act” at that Department.

And there are numerous other positions that are currently being filled by acting officials, rather than by Senate-confirmed nominees.  For example, early this year, Attorney General Sessions named 17 “interim U.S. attorneys to run federal prosecutor shops across the country,” including in the Southern District of New York.  Even if these appointments are lawful, the widespread use of these acting officials reflects a general disdain for the Senate’s critical role in providing advice-and-consent for important executive branch positions.

Third, and finally, Tribe and Matz caution that one reason Congress should not move too quickly in impeaching a president is because it denies members of Congress the opportunity to see “the president’s response to allegations of wrongdoing.  Does the president admit error, apologize, and clean house” (92)?  This information is, they argue, “invaluable when Congress asks whether leaving the president in office would pose a continuing threat to the nation” (92).  In this respect, it seems we already know quite a lot about how this President responds to allegations of wrongdoing, and not only because he tweets “Witch hunt!” on a semi-regular basis.

Consider, for example, his response to allegations of abuse and wrongdoing by high-level officials within his Administration.  EPA Administrator Scott Pruitt is, as Vox put it, “now deeply tainted by a stunning number of alleged ethical and legal violations.”  As Vox details, “[t]here are at least 10 investigations into potential violations like his $43,000 phone booth, his 20-person security detail, and his housing deal with a lobbyist’s wife.”  Yet Pruitt still has his job because “[h]e has brought the White House most of the few policy successes it has to date.”  Thus, in this way (as in many others), this President has made clear that corruption and abuses of the public trust are permissible within this Administration.

Tribe and Matz are surely right that the question whether to impeach always requires careful and thoughtful consideration, divorced from partisan and policy considerations.  As they note, “[t]he normalization of impeachment in our politics” (182) predates Trump, and there are real reasons to be concerned about that trend, whatever you think about the current occupant of the White House.  But that doesn’t necessarily mean that the impeachment “haunt[ing]” this President is unwarranted.  As Tribe and Matz’s thoughtful analysis of the factors Congress should consider in determining whether to exercise its power of impeachment highlights, there are many ways in which this presidency is unlike so many that preceded it—and those differences are surely relevant to the question whether impeachment now will further “destabilize democracy” (239) or is instead necessary to save it.

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