A Republican Executive

 At AEI, Joseph M. Bessette and Gary J. Schmitt have a report titled "Crafting a Republican Executive: The Presidency and the Constitutional Convention." Key points:

• The Constitutional Convention of 1787 knew the young nation needed a strong executive that was still accountable to the general public. In short, the new executive was to be an unprecedented mix of monarchic-like vigor and republican restraint.
• The first major issue the Convention faced was what powers in addition to executing the nation’s laws could be given to the new executive. The office needed to be made both capable and accountable before those powers could be added. The second and related issue was how best to select the president to maintain the office’s independence and energy. The Convention ultimately settled on the Electoral College system as the best practical means to select a president.
• In the end, the authorities the delegates vested in the chief executive were as much a reflection of their confidence in the characteristics of the institution they crafted and its concomitant promotion of “presidential” behavior as it was trust in the personal characteristics of the men they expected would rise to the nation’s highest office.

From the report:

To make an obvious point, the delegates would hardly have committed themselves to making the president impeachable if they expected every president to be a Washington. Nor would they have required Senate approval to the appointment of high-ranking executive officials. In the end, the authorities the delegates vested in the chief executive were as much a reflection of their confidence in the characteristics of the institution they so carefully crafted and the ways that institution would promote “presidential” behavior as it was trust in the personal characteristics of the men they expected would rise to the nation’s highest office.

Indeed, it is remarkable how frank the delegates were in their discussions of the executive. Those concerned about creating too strong an office were not at all reluctant to speak of ignoble cabals and monarchic designs, while those who favored a powerful and energetic executive were quite open about the need to tie the president’s passions and interests to
his duties.

Rather than looking to Washington as the kind of man they expected typically to occupy the office, the delegates may have been thinking more of someone like New York Gov. George Clinton. By the summer of 1787, Clinton was serving in his 11th consecutive
year as governor. Among the state governors, only William Livingston of New Jersey had served longer (by one year), and no governor had become as powerful a political figure in his state. Although Clinton was not without talent, few would rank him with fellow
New Yorkers Hamilton or Jay, never mind with the likes of Washington. Operating under a constitution that gave him renewable three-year terms and vested the office with substantial independent powers, Clinton proved to be an effective and responsible governor.

The architects of the presidency hoped their Electoral College system would raise to the nation’s highest office men with a reputation for exemplary public service. As the delegates themselves implied, reputation was an approximation for real virtue. Men of the caliber of Washington were desired, but men like Clinton were more likely to fill the office.

Impeachment Trial Oaths

Many posts have discussed oaths of office. 

 From CRS:

The Presiding Officer of the trial takes the oath of office. The Constitution requires that Senators be “on Oath or Affirmation” when sitting for the purpose of trying an impeachment. The Senate developed the practice of first swearing in the presiding officer of the trial, who then administers the oath to all Senators. In the case of a presidential impeachment, the Chief Justice acts as presiding officer. Impeachment Rule IV requires that notice be given to the Chief Justice of the time and place of the trial. It further provides that the Chief Justice is to be administered the oath by the “Presiding Officer of the Senate.”  The Chief Justice takes the same oath as the Senators (see below for  text). Although the Vice President of the United States, as President of the Senate, could act as Presiding Officer of the Senate and administer the oath to the Chief Justice, in the Clinton impeachment trial, the President Pro Tempore of the Senate administered the oath to the Chief Justice. In the Clinton trial the Senate also agreed by unanimous consent that a bipartisan group of six Senators escort the Chief Justice to the dais.

Senators are administered the oath of office. The Presiding Officer of the Trial administers the following oath to Senators, as provided in Impeachment Rule XXV:

[Do you] solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of____, now pending, [you] will do impartial justice according to the Constitution and laws: So help [you] God.

 In modern practice, the Chief Justice asks all Senators, who are standing at their desks, to raise their right hands as he reads the oath, and Senators respond, all together, “I do.” Senators also sign an official oath book, which serves as the permanent record of the administration of the oath. Senators are required to take the oath before participating in the trial, and Senators who might be absent at the time the oath is administered en masse inform the presiding officer as soon as possible so that they can take the oath separately. At this point, any Senator wishing to be excused from participating in the trial could ask to be excused from this service. In the past, the Senate has excused Senators from service in an impeachment trial only at their request.

Impeachment and Trial of Former Officials

Many posts have discussed impeachment, including the impeachment of former officials.

From CRS:

The Constitution does not directly address whether Congress may impeach and try a former President for actions taken while in office. Though the text is open to debate, it appears that most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office. As an initial matter, a number of scholars have argued that the delegates at the Constitutional Convention appeared to accept that former officials may be impeached for conduct that occurred while in office. This understanding also tracks with certain state constitutions predating the Constitution, which allowed for impeachments of officials after they left office. It also accords with the British impeachment of Warren Hastings two years after his resignation as the governorgeneral of Bengal. The impeachment occurred during the Convention debates and was noted expressly by the delegates without expressing disapproval of the timing. While the Framers were aware of the British and state practices of impeaching former officials, scholars have noted that they chose not to explicitly rule out impeachment after an official leaves office. But the Framers nonetheless made other highly specific decisions about the impeachment process that departed from the British practice, such as requiring a two-thirds majority in the Senate for a conviction when the British system allowed conviction on a majority vote.

That said, there are textual arguments against Congress’s authority to apply impeachment proceedings to former officials. The plain text of the Constitution, which states that “[t]he President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment ... and Conviction,” could be read to support the requirement that the process only applies to officials who are holding office during impeachment proceedings. Some have argued that the Constitution links the impeachment remedy of disqualification from future office with the remedy of removal from the office that person currently occupies; the former remedy does not apply in situations where the latter is unavailable. In his influential Commentaries on the Constitution of the United States, Justice Joseph Story claimed that impeachment is inapplicable to officials who have left their position because removal—a primary remedy that the impeachment process authorizes—is no longer necessary.

But various scholars have taken issue with Justice Story’s reasoning, and others have argued that Justice Story’s argument was primarily concerned with simply distinguishing the American practice from the British, which allowed for impeachment of private citizens who had not been part of the government, and who could potentially face severe punishments, including in some cases life imprisonment, as a result of impeachment. Some have emphasized that the impeachment provisions of the Constitution provide that the remedies of removal from office and disqualification are distinct components of the remedy for impeachable misconduct. One scholar asserts that the two clauses of removal and disqualification can be thought of as “fixing a minimum and maximum penalty” in cases of conviction in an impeachment trial; consequently, an official’s resignation following an initial impeachment by the House but before conviction in the Senate may not “deprive the people of the full measure of the protection afforded them” through the additional remedy of disqualification. Scholars have noted that if impeachment does not extend to officials who are no longer in office, then an important aspect of the impeachment punishment is lost. If impeachment does not apply to former officials, then Congress could never bar an official from holding office in the future as long as that individual resigns first. According to one scholar, it is “essential” for Congress to have authority to impeach and convict former officials in order to apply the punishment of disqualification; otherwise Congress’s jurisdiction would depend on the whims of the individual who engaged in misconduct. Another scholar notes that the grave nature of the disqualification punishment indicates that it should apply independently of the need for removal.

Belknap and Impeachment Trials

 Andra Belknap (Pitzer `09)  at USA Today:

Can Congress even impeach someone who is no longer in office? What’s the point of voting to impeach and try a man who is headed out the door in a few days’ time? 

The answer to the first question is an emphatic yes. I do have some expertise here; it’s in my last name. 

I was in seventh grade when my class was silently reading a section of Reconstruction-era American history. I came across the name William Worth Belknap, a former United States secretary of War impeached by the U.S. House of Representatives on March 2, 1876. The paragraph recounted how Belknap had tearfully resigned his cabinet position to President Ulysses S. Grant just two hours prior to his impeachment by the U.S. House of Representatives. I had never heard of the man, but I was mortified. There are few things that aren’t embarrassing to a 12-year-old. 

Turns out, he is my ancestor. I learned later that Belknap was accused of effectively selling lucrative government appointments at Fort Sill in modern day Oklahoma — he received approximately $20,000 in payments in return for the appointments. Belknap’s yearly salary at the time was $8,000. Indeed, 20-grand was a substantial sum in the 19th century United States.

 Belknap faced a Senate trial for corruption in office over a period of four months in 1876 — the nation’s centennial. Notably, he was a private citizen at the time. The five articles of impeachment alleged that Belknap had, “criminally disregard(ed) his duty as Secretary of War, and basely prostitut(ed) his high office to his lust for private gain.” A majority of the Senators voted to convict Belknap for his crimes, but they failed to reach the two-thirds majority required for a conviction. 

This brings me to question two. What’s the point of such an impeachment and Senate trial? The question was debated at length by the Congress. Those in favor came to a simple conclusion: high crimes require justice.

Fast-Track Impeachment

A number of posts have discussed impeachment.  Today, the House will impeach the incumbent president for the second time.

H.Res. 24 is the impeachment resolution

H.Res. 41 is the rule for today's impeachment proceedings.

H.Res. 40 names impeachment managers.

From the House Rules Committee: 

1. Closed rule.
2. Provides two hours of debate equally divided and controlled by the chair and ranking minority member of the Committee on the Judiciary or their respective designees.
3. Waives all points of order against consideration of the resolution.
4. Provides that until completion of proceedings enabled by the first section of the resolution, (a) the Chair may decline to entertain any intervening motion, resolution, question, or notice; and (b) the Chair may decline to entertain the question of consideration.
5. Provides that upon adoption of H. Res. 24, (a) H. Res. 40 is hereby adopted; and (b) no other resolution incidental to impeachment relating to H. Res. 24 shall be privileged during the remainder of the 117th Congress.
6. Provides that House Resolution 8, agreed to January 4, 2021, is amended by striking "January 28" each place that it appears and inserting "February 11".

Impeachment of Former Officials

Michael Gerhardt at Just Security:

The Constitution provides that the President “shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors,” but it says nothing about the timing of when the impeachment and trial may take place. That omission makes sense, since presidents – and any other impeachable officials – could commit impeachable offenses at any time while they are in office, including in their last months or days in their positions. It certainly makes no sense for presidents who commit misconduct late in their terms, or perhaps not discovered until late in their terms, to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions. What’s more, litigation or prosecutions might not be able to get at the misconduct, since the scope of impeachable offenses extends to misconduct that is not an actual crime. And what if that misconduct is not discovered until after a president leaves office? There may be no practical means for holding him accountable for such misconduct, especially if he is regarded as having been immune from any criminal prosecution or inquiry while he was in office. Being president is not a safe harbor from political and legal accountability. This is why John Quincy Adams proclaimed on the floor of the House that, “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.” (Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analyses 80 (2d edition 2000) (citation omitted)) Adams’s suggestion was that any impeachable official remained subject to that process well after they left office, not just presidents but those who abused power while in office.

Eugene Volokh at Reason:

In 1876, Secretary of War William Belknap resigned as the House was considering impeaching him for a newly revealed corruption scandal. The House impeached him anyway, and the Senate rejected a motion to dismiss the case for want of jurisdiction over a former federal officer. Belknap was not convicted, in part because some senators doubted their authority to do so. Condemning Belknap's actions and disqualifying him from future office seemed a sufficient reason to proceed for many in the House and Senate.

If Congress in 1974 had imagined the possibility of President Richard Nixon rehabilitating his reputation sufficiently to have a chance at holding a future office, it is not hard to imagine a bipartisan House and Senate steaming ahead with an impeachment and trial in order to bar that possibility through a judgment of disqualification. Worried that an infamous former officeholder might eventually live down his infamy, Congress might seek to make that recovery more difficult through the impeachment process.

The House practice manual accepts that the impeachment power extends to former officers, though it admits that since removal is generally the "primary objective" of an impeachment the proceedings have usually been brought to an end if the officer resigns. Brian Kalt has provided the most comprehensive analysis of "late impeachments," and I find him persuasive.

 

Impeachment Trial Rules

James Wallner at LegBranch.org:

When the Senate is sitting on an impeachment trial, the motions that senators may make are derived, explicitly and implicitly, from its standing Impeachment Rules. For example, Rule V stipulates that senators may approve “orders, mandates, writs, and precepts…and…make and enforce such other regulations and orders in the premises as the Senate may authorize or provide.”

Rule XIX also acknowledges senators’ ability to make motions during an impeachment trial. It requires them to put all questions for witnesses, managers, and counsel, as well as all motions and orders, in writing before sending it to the presiding officer. (Note: Motions to adjourn are exempted from this requirement.)

Rule VI authorizes the Senate to “enforce obedience to its orders, mandates, writs, precepts, and judgments, to preserve order, and to punish in a summary way contempt’s of, and disobedience to, its authority, orders, mandates, writs, precepts, or judgments, and to make all lawful orders, rules, and regulations which it may deem essential or conducive to the ends of justice.” The rule empowers the Sergeant at Arms to “employ such aid and assistance as may be necessary to enforce, execute, and carry into effect the lawful orders, mandates, writs, and precepts of the Senate.”

Rule XIII sets the schedule for all impeachment trials. It stipulates, “The hour of the day at which the Senate shall sit upon the trial of an impeachment shall be (unless otherwise ordered) 12 o’clock pm.” The provision “unless otherwise ordered” references senators’ ability to make motions to adjust the schedule. Similarly, Rule XXVI clarifies that “the Senate may, by any order adopted without debate, fix a day and hour for resuming such consideration.”

A simple-majority decides all of these motions. The Impeachment Rules do not allow senators to debate during open sessions of a trial. However, Rule XX allows any senator to make a motion to go into closed session. Once the Senate is in a closed session, the rules allow senators to participate in limited debate. Yet even in closed session, all motions decided by a simple majority.

There Is No Impeachment Clock

At Legislative Procedure, Casey Burgat points out that articles of impeachment do not come with a clock:

Other than outlining broad roles of each chamber, the Constitution is famously vague on matters of impeachment, leaving many of the details to be decided within Congress. And House rules do not contain any deadline or expiration clause on the submission of articles. Each chamber sets their own rules on how to conduct their own internal processes, including on matters of impeachment. The rules of one chamber do not apply to the other, just as the family rules in your neighbor’s house have no bearing on yours. So when you hear some arguing that the Senate rules suggest the House must “immediately” submit the articles after being adopted (which is itself a questionable reading of the Senate rules), you should immediately think “the House doesn’t play by the Senate’s rules.”

And as an additional fun fact, impeachment proceedings, including adopted articles of impeachment do not even expire at the end of a Congress. They can carry over, and they have in previous impeachments, including of President Clinton. According to the House practice manual, “the articles of impeachment against Judge Alcee Hastings were presented in the Senate during the second session of the 100th Congress (100–2, Aug. 3, 1988, p 20223) but were still pending trial by the Senate in the 101st Congress, when the House reappointed managers (101–1, Jan. 3, 1989, p 84). The articles of impeachment against President Clinton were presented to the Senate after the Senate had adjourned sine die for the 105th Congress, and the Senate conducted the trial in the 106th Congress.”

High Crimes and Misdemeanors

At AEI, Joseph M. Bessette and Gary Schmitt have reissued their 1998 report, "What Does `High Crimes and Misdemeanors' Mean?"

The United States Constitution establishes that “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.”1 Although British law employed the term for centuries before the American Revolution, the definition of what constitutes “high crimes and misdemeanors” has long been a subject of ambiguity. Even studying the Constitutional Convention and subsequent ratifying debates sheds only a little light on how the founding generation separated impeachable offenses from occasional maladministration.

Demystifying this portion of Article II requires a close study of American legal history, which ultimately illustrates the phrase’s prudential breadth of meaning. At its core, impeachment has historically turned on acts that either impeded a constitutional officer’s capacity to execute their duties or grossly violated public trust. In fact, a number of impeachment trials have revolved almost exclusively around events that were disconnected from an officeholder’s responsibilities, thereby demonstrating that the definition of impeachable infractions does not stop at the abuse of official powers.

The impeachment trials of Sen. William Blount in 1799, Judge Robert W. Archbald in 1912, and Judge Halstead L. Ritter in 1936, among other examples, help illustrate this point. Although he was ultimately acquitted, Congress accused Blount of working with the British to profit from a proposed invasion of Florida and Louisiana—an early indication of the view that an officer could be impeached for conduct unrelated to their role in government. An overwhelming majority convicted Archbald for using his office to receive financial gains from the coal and railroad industry, while Ritter’s case concluded that income tax evasion definitively constituted grounds for impeachment.

If the historic context strongly suggests that “high crimes and misdemeanors” entails a broad range of activities, identifying the duties and scope of public trust associated with each constitutional office is crucial to determining when an officeholder has committed an act warranting impeachment. For example, judges, members of Congress, and the president all take an oath to support the Constitution, but only the executive branch is explicitly tasked with preserving, protecting, and defending the document. As the retainer of an immense share of public trust, the commander in chief cannot be exempt from any infractions that would be considered impeachable for any lower office, provided they were not in direct service of constitutional obligations.

The question of impeachment depends less on a strict legal definition than it does a dedication to political and moral principle. Impeachment exists to protect the public while encouraging those entrusted with political power to live up to the high responsibilities of their office.

Impeachment and Senate Trial

When the House impeaches an official, does the Senate have to act? The Constitution does not directly address this question, but Senate rules do. Matt Glassman:

These rules strongly suggest that the Senate does not have any discretion in starting a trial upon the appearance of an impeachment article from the House. The use of the word "shall" is pretty clear. pic.twitter.com/QsxWW1x4KI

— Matt Glassman (@MattGlassman312) September 29, 2019

But, but, but...

One-liner: The Constitution does not require a trial. Current Senate rules do require a trial. The Senate could unanimously ignore those rules. A majority could change those rules or otherwise dispose of the trial. A change/disposal would require at least one recorded vote.

— Matt Glassman (@MattGlassman312) September 29, 2019

Impeachment

Gary J. Schmitt at AEI:

At the time of the Constitutional Convention, the phrase—borrowed from British legal practice and the ongoing impeachment proceedings against the former British governor of India, Warren Hastings—was intended to address the problem of when an executive exercises legitimate authority but does so in a manner, as Alexander Hamilton put it, in “violation of some public trust.” A president, for example, has virtual plenary power to grant pardons, but if he exercises that authority so as to hide a crime, at a minimum he has violated his duty to faithfully (that is, in good faith) execute the laws.

Again, at the time of the Convention, a key problem the Framers wanted to address was the absence of an independent executive under the Articles of Confederation. They succeeded in establishing an office that could act with energy, decision, dispatch, and, if necessary, secrecy. The circle they had to square was providing for removal in the case where a president abused his broad discretion, without giving Congress the power to control presidential behavior by making removal from office too easy. Poor policy choices, ineffective administration, boorish behavior would be too low a bar for such removal. But an abuse of office—either obvious in the case of treason or bribery or less so in instances in which a president breaks the constitutional norms he is sworn to uphold—had to be on the docket if the newly crafted and powerful chief executive was to gain popular acceptance and the office not be amended by the state ratifying conventions.

Obviously, in comparison with treason and bribery, deciding whether a president has committed a high crime and misdemeanor will always be more of a judgment call. Hence, those calling for impeachment on these grounds will not readily escape the charge they are acting politically. Indeed, because impeachment only requires a simple majority vote in the House, it appears that the Constitution makes it relatively easy to impeach. However, the Constitution likewise makes it difficult to remove a president from office, requiring a two-thirds majority in the Senate for a conviction.

In sum, the Constitution’s structure frames the question of impeachment and removal around its textual insistence that with great executive power comes great responsibility. And because the Constitution seems to have created a relatively open door when it comes impeachment, a plausible assumption is that impeachment, qua impeachment, was never meant to be such an exceptional oversight mechanism. Just as it is plausible to argue that removal would be rare.

There is no question that a more routine use of impeachment inquiries might be disruptive to the presidency. On the other hand, the threat of it being employed more often might just put some ballast back into our constitutional system in the face of the expansive sway of the modern presidency. It might temper just a bit presidents who think that, once popularly elected, they have a mandate to govern as they wish and ignore the constitutional fact that they have both powers and duties

Second Thoughts on Bill Clinton

At The Atlantic, Caitlin Flanagan writes the Democrats were wrong to look away from Bill Clinton's sexual harassment:

When more than a dozen women stepped forward and accused Leon Wieseltier of a serial and decades-long pattern of workplace sexual harassment, he said, “I will not waste this reckoning.” It was textbook Wieseltier: the insincere promise and the perfectly chosen word. The Democratic Party needs to make its own reckoning of the way it protected Bill Clinton. The party needs to come to terms with the fact that it was so enraptured by their brilliant, Big Dog president and his stunning string of progressive accomplishments that it abandoned some of its central principles. The party was on the wrong side of history, and there are consequences for that. Yet expedience is not the only reason to make this public accounting. If it is possible for politics and moral behavior to coexist, then this grave wrong needs to be acknowledged. If Weinstein and Mark Halperin and Louis C. K. and all the rest can be held accountable, so can our former president and so can his party, which so many Americans so desperately need to rise again.

Matthew Yglesias at Vox:

At the time I, like most Americans, was glad to see Clinton prevail and regarded the whole sordid matter as primarily the fault of congressional Republicans’ excessive scandal-mongering. Now, looking back after the election of Donald Trump, the revelations of massive sexual harassment scandals at Fox News, the stories about Harvey Weinstein and others in the entertainment industry, and the stories about Roy Moore’s pursuit of sexual relationships with teenagers, I think we got it wrong. We argued about perjury and adultery and the meaning of the word “is.” Republicans prosecuted a bad case against a president they’d been investigating for years.

What we should have talked about was men abusing their social and economic power over younger and less powerful women.

Nixon Checked Out on 12/6/73

As impeachment talks edges into the mainstream, it is worth remembering how Nixon handled it.

At Research and Politics, Matthew N. Beckmann has a terrific article titled: "Did Nixon Quit Before He Resigned?"  The abstract:

On August 9, 1974, Richard M. Nixon formally resigned the presidency; however, folklore hints Nixon informally quit fulfilling his duties well before then. As Watergate became less “a third rate burglary” than “high crimes and misdemeanors,” rumors of President Nixon’s wallowing, wandering, drinking, and mumbling swirled. Yet evidence for such assertions has been thin, and prevailing scholarship offers compelling reasons to believe Nixon’s institutional protocols overrode his individual proclivities. This study offers a new, systematic look at Nixon’s presidency by coding his public events and private interactions with top government officials during every day of his presidency. Contrary to our expectations, the results corroborate the rumors: Richard Nixon effectively quit being president well before he resigned the presidency. In fact, it turns out there was a defining moment when Nixon disengaged from his administration: on December 6, 1973, the day Gerald Ford was confirmed as Vice President.

The article makes ingenious use of the Presidential Daily Diary.  Here is the quoted description from the Richard Nixon Presidential Library & Museum:

The Daily Diary of files represents a consolidated record of the President’s activities. The Daily Diary chronicles the activities of the President, from the time he left the private residence until he retired for the day, including personal and private meetings, events, social and speaking engagements, trips, telephone calls, meals, routine tasks, and recreational pursuits. For any given meeting, telephone call, or event, the Daily Diary usually lists the time, location, persons involved (or a reference to an appendix listing individuals present), and type of event.1

 Here is how Professor Beckmann used it:

To extract the relevant details from these extraordinary records, we first distributed the Nixon Library’s Daily Diaries collection among a large team of undergraduate students, with each getting a random selection.2 The RA assigned a particular day would then scour the corresponding Diary to tally the President’s 5-plus-minute contacts—face-to-face or by phone—with the following top government officials: Chief of Staff; National Security Advisor; White House Counsel; White House Press Secretary; Treasury Secretary; Defense Secretary; Secretary of State; Speaker of the House; House Minority Leader; Senate Majority Leader; Senate Minority Leader. The result, then, was original data indicating Richard Nixon’s five-plus-minute contacts with 11 key government officials during each day of his presidency.

And a notable finding:

Drilling deeper, and to our surprise, we detected a specific day on which Richard Nixon effectively disengaged from his administration: December 6, 1973, the day Gerald Ford was sworn in as Vice President.5 Figure 3 displays President Nixon’s total weekly contacts with the aforementioned 11 key officials before and after Jerry Ford’s confirmation. In the 12 weeks before that date, Nixon averaged 8 (standard deviation = 5) contacts per day with top officials; in the 12 weeks after that date, he averaged 1 (standard deviation = 1).6 This does not mean it was Ford’s ascension per se that devastated Nixon; rather, we suspect Ford’s confirmation was merely the last straw—the point when Nixon realized his hopes for surviving Watergate were dashed.

Impeachment and the Emoluments Clause

At Brookings, Norman Eisen, Richard Painter, and Laurence H. Tribe have an brief titled "The Emoluments Clause: Its text, meaning, and application to Donald J. Trump."

While the phrasing may strike us as peculiar, everything about the Emoluments
Clause militates in favor of giving the broadest possible construction to the payments it
encompasses. For that reason, the Clause unquestionably reaches any situation in which a federal officeholder receives money, items of value, or services from a foreign state.

Just as plainly, the Emoluments Clause covers any transaction between a federal
officeholder and a foreign state in which the foreign state offers a “sweetheart deal” or any other benefit inconsistent with a purely fair market exchange in an arms-length transaction not specially tailored to benefit the holder of an Office under the United States.

... 

[If] Mr. Trump enters office in what would obviously constitute a knowing and indeed intentional violation of the Emoluments Clause and then declines to cure that violation during his tenure, Congress would be well within its rights to impeach him for engaging in “high crimes and misdemeanors.” This would not require any evidence of provable bribes or other specific malfeasance, since the whole aim and theory of the Emoluments Clause is that the President (among others) is not lawfully permitted to order his private dealings with foreign powers such that they are vulnerable to systemic, invidious, undetectable corruption. So long as Mr. Trump persists in doing so, Congress would have a plainly valid basis under the Constitution for concluding he cannot serve in office—both as a matter of first principles and given evidence that at least one prominent leader in the ratification process saw violations of this Clause as grounds for impeachment.

The Constitution and Contemporary Politics

Tenth Annual Constitution Day Conference

Ronald Reagan Presidential Library

Simi Valley, California 

September 13, 2014

Resources on the Constitution and the Courts

The War Power

Powers of Congress (Article I, section 8):

• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces...

Powers of the President (Article II, section 2):

•  The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; 

Declared and Undeclared Wars

• The list of declared wars
• Legal implications of a declaration of war
• Use of military force abroad
• The War Powers Resolution
• President Obama, ISIS and the war power
• Senator Obama's comments in 2007

Executive Power 

Powers of the President (Article II, sections 1 and 4)

• The executive Power shall be vested in a President of the United States of America ...
• [H]e shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. 

Uses of Power

• Signing statements
• Executive orders

Impeachment

Powers of Congress (Article I, sections 2 and 3):

• The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment. 
• The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
• Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law

History

• Background on the impeachment process.
• There is an entire site on the Johnson impeachment.
• Another impeachment

The Affordable Care Act

Powers of Congress (Article I, section 8)

• The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises..
• To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes...

Issues

• The individual mandate
• Contraceptives and Hobby Lobby
• Subsidies and Halbig

Impeachment, Bush, and Obama

Carl Cannon writes of impeachment talk and the House lawsuit against the president:

... Rep. Sheila Jackson Lee called the lawsuit resolution “a veiled attempt for impeachment [that] undermines the law that allows a president to do his job.”

It’s unclear what “law” she had in mind, but the Texas congresswoman was just getting going: “A historical fact that President Bush pushed this nation into a war that had little to do with apprehending terrorists,” she added. “We did not seek impeachment of President Bush, because as an executive, he had his authority. President Obama has the authority.”

Historical confusion, constitutional illiteracy, and mangled syntax aside, this statement wasn’t merely inaccurate. It was peculiar. That’s because on June 10, 2008, Rep. Dennis Kucinich, an Ohio Democrat, introduced a measure titled “Impeaching George W. Bush, president of the United States, of high crimes and misdemeanors.”

Eleven of Kucinich’s fellow progressives signed on as co-signatories. These weren’t talk radio or cable TV entertainers—or marginalized members on their way out of Congress, like Steve Stockman. The sponsors of the Bush impeachment bill were congressional liberals in good standing with the Democratic leadership in the House, and most of them are still there, including—yes, you guessed it—Sheila Jackson Lee.

“She misspoke,” her press secretary Mike McQuerry told inquiring reporters.

The other cosponsors were:

• Lee, Barbara [D-CA]
• Wexler, Robert [D-FL]
• Woolsey, Lynn [D-CA]
• Baldwin, Tammy [D-WI]
• Hinchey, Maurice [D-NY]
• Farr, Sam [D-CA]
• Towns, Edolphus “Ed” [D-NY]
• McDermott, Jim [D-WA]
• Ellison, Keith [D-MN]
• Filner, Bob [D-CA]