The Crimes in the Articles of Impeachment
Last week the House Judiciary Committee voted out two Articles of Impeachment of President Trump. The full House is expected to vote on them this week. Article One charges Trump with Abuse of Power for his actions toward Ukraine, and Article Two charges him with Obstruction of Congress. One common refrain among the president’s supporters is that impeachment is not appropriate because these articles do not allege the president committed a crime. But this is not correct: although the articles do not cite specific federal statutes, the facts they allege do establish several federal offenses. There are indeed crimes in the Articles of Impeachment.
But First: Impeachment Doesn’t Require a Crime
The Constitution provides the president may be impeached and removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors.” Alexander Hamilton, in Federalist 65, wrote that impeachment is a remedy for abuse of office and is appropriate for “those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.”
Although there is some debate about the exact meaning of “high Crimes and Misdemeanors,” there is a general consensus that impeachment does not require proof of a federal crime. Of the four law professor experts on impeachment who testified before the House Judiciary Committee on December 4, all four – including the expert called by the Republicans – agreed that impeachable offenses are not limited to conduct that violates federal criminal statutes. Professor Noah Feldman of Harvard Law School testified: “the essential definition of high crimes and misdemeanors is the abuse of office,” and that the “classic form … is using the office of the presidency for personal advantage or gain, not for the public interest.” He went on to note that: “the traditional meaning of high crimes and misdemeanors was not restricted to acts defined as ordinary crimes by statute.”
Even if you believed conduct should be criminal to be impeachable, that wouldn't mean the conduct should have to track the precise elements of the current U.S. criminal code. The men who wrote the Constitution could not have been thinking of the federal criminal code because it did not exist at the time. Crimes such as bribery have been around as long as there have been politicians, and have common-law meanings not tied to the language of particular statutes. What’s more, the current federal criminal code contains a number of different statutes that prohibit bribery, and they do not all share the same definition of the offense.
Linking impeachable offenses to particular acts of Congress would mean Congress effectively could amend the Constitution by passing criminal statutes. For example, if “bribery” in the impeachment clause is defined by the current federal bribery statute, Congress could amend that statute and thereby alter the standard for impeachable offenses, rather than going through the normal Constitutional amendment process. This is exactly backwards: the Constitution is the supreme law of the land. Acts of Congress must conform to the Constitution, not the other way around.
In the Judiciary Committee report released on December 16 to accompany the articles of impeachment, the Republican committee members who dissented from the report admitted that impeachments of past presidents have included articles of impeachment that did not allege a specific crime. But they claimed this is the first time a presidential impeachment has consisted solely of articles that do not state a criminal offense, and that this is improper. According to the Republicans, “The Majority’s Articles of Impeachment are unprecedented in American history because they are not based on criminality, as were all prior presidential impeachments.”
But the Republicans are wrong: there are crimes in the Articles of Impeachment, and they are indeed "based on criminality."
A Crime By Any Other Name
The claim that these Articles of Impeachment do not allege criminality reminds me of the claim from the days of the Mueller investigation that “collusion is not a crime.” There was an almost obsessive focus on the label applied to the conduct under investigation. Yes, it’s true there is no crime called “collusion.” But if people agree to engage in criminal activity, that act of collusion may violate the federal conspiracy statute. There’s also no crime called “shooting someone until they are dead” – but if you do that, you will be prosecuted for the crime called homicide. What matters in criminal law is the conduct, not the label applied to that conduct.
The Articles of Impeachment don’t cite specific federal statutes that the president allegedly violated. As noted above, there’s no particular reason they would; impeachable conduct is not defined by the terms of federal criminal statutes, and this is not a criminal indictment. But the facts alleged in those Articles would, if proven at a criminal trial, establish the commission of a number of federal crimes.
Article One: Bribery and Honest Services Fraud
The blog Just Security just published a collection of articles about the crimes implicated by president Trump’s conduct, called “Federal Criminal Offenses and the Impeachment of Donald J. Trump.” (I wrote the piece on bribery for the collection.) It identifies a number of crimes that Trump may have committed in his dealings with Ukraine. The first Article of Impeachment most clearly establishes two of those crimes: bribery and honest services fraud.
The first Article of Impeachment, charging Abuse of Power, focuses on Trump’s attempts to pressure Ukraine into announcing two investigations that would be personally beneficial to Trump. One investigation was into the Bidens and the Ukrainian energy company Burisma, and the other into a debunked conspiracy theory involving alleged Ukrainian interference in the 2016 election. It alleges that Trump acted with “corrupt purposes” in pursuit of this personal benefit. And it alleges that he “conditioned two official acts” on Ukraine’s public announcement of the investigations: release of the Congressionally-approved military aid to Ukraine, and agreeing to a White House meeting that was desperately sought by Ukrainian president Zelensky.
Although Article One does not cite the bribery statute, the Article’s language closely tracks that law's requirements. The statute, Title 18, United States Code, Section 201, provides that a public official commits bribery if he corruptly solicits or demands a thing of personal value in exchange for being influenced in the performance of an official act. All of the elements of the offense are clearly alleged in impeachment Article One. It alleges that Trump acted to obtain a thing of personal value, that he acted corruptly, and that he was agreeing to be influenced in the performance of official acts in exchange. This is the language of bribery.
In the Just Security piece on bribery, and in other articles (here and here, for example), I’ve written in detail about how the elements of the bribery statute are satisfied here. President Trump is a public official, the announcement of the Ukrainian investigations would be a thing of personal value to him, granting the White House meeting and releasing the aid are both “official acts” under the statute, and he acted corruptly by wrongfully linking his official actions to his demand for the announcement of the investigations.
Again, what matters are the facts of the president’s conduct. You can call it Abuse of Power, or you can call it Bribery. But the largely uncontested evidence of the president’s conduct toward Ukraine does in fact constitute bribery under current federal law.
Honest Services Fraud
When it comes to honest services fraud, the analysis is largely the same. Honest services fraud is a species of federal mail and wire fraud. In an honest services case, the defendant is charged with defrauding the victims of the right to fair, honest, and impartial services they are owed by someone. It’s most commonly used as a public corruption theory, with corrupt public officials charged with defrauding their constituents of the fair and honest services the officials owe the public.
In the 2010 case of Skilling v. United States the Supreme Court ruled that honest services fraud prosecutions are limited to cases involving bribery or kickbacks. The Court also held that it would define bribery for purposes of honest services fraud by using the definition in the bribery statute, 18 U.S.C. 201. As a result, the legal analysis for honest services fraud ends up mirroring the bribery analysis discussed above. As president, Trump owes a duty of honest services to the public. Because his conduct meets the elements of federal bribery, these facts also would qualify as honest services fraud. The only additional requirement would be proof that he used the mail or a wire or wireless transmission in furtherance of the fraud. The telephone call with president Zelensky would easily satisfy that requirement.
Article Two: Obstruction of Congress
The second Article of Impeachment charges the president with Obstruction of Congress. It alleges that Trump has improperly obstructed Congress’s impeachment inquiry by declaring it illegitimate and completely refusing to cooperate. He instructed numerous executive branch officials and key witnesses to defy subpoenas and refuse to testify. He also instructed the White House, State Department, and other agencies to refuse to turn over any documents in response to Congressional subpoenas. Article Two alleges that: “In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and Misdemeanors’”.
Obstructing the impeachment inquiry itself was also one of the impeachment charges against presidents Nixon and Clinton. It relies heavily on the fact that the Constitution gives Congress the “sole power” to conduct impeachments. By declaring the entire inquiry illegitimate and refusing to cooperate, the Article alleges, Trump has “sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct.” This undermines the system of checks and balances set forth in the Constitution, which gives Congress the power to check a president’s conduct through impeachment. It is like a criminal suspect seeking to dictate to the FBI exactly how it should investigate him and what techniques it could use.
The president’s defenders argue that Congress should go to court and seek rulings on the president’s refusal to cooperate, rather than simply moving forward on impeachment. The House Report explains why the Democrats reject this claim. First, it would likely result in unacceptable delay, because court rulings and appeals can take months or even years. Particularly where the misconduct concerns an attempt to manipulate the upcoming 2020 election, the Democrats argue that they need to move quickly. Second, they argue that because the Constitution grants Congress the sole power to try impeachments, Congress has never relied on court review concerning its impeachment powers. The House Report states: “Under these strange and unprecedented circumstances, it is appropriate for the House to reach its own independent judgment that the President is obstructing the exercise of its constitutional impeachment power, rather than seeking judicial review.”
Unlike the term “Abuse of Power” alleged in Article One, “Obstruction of Congress” actually is a crime – although again, the Article of Impeachment does not cite any particular criminal statute. Obstruction of Congress may be prosecuted under at least two different federal statutes that prohibit obstruction of justice: Title 18, United States Code, Sections 1505 and 1512. Section 1505 applies to anyone who “corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede . . . the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House . . . . “ Section 1512(c)(2) punishes anyone who “corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so.” “Official proceeding” is defined to include Congressional investigations. 18 U.S.C. 1515(a)(1)(B).
These statutes readily apply to conduct such as defying Congressional subpoenas and ordering subordinates not to testify. If this were a criminal prosecution, then as with most obstruction of justice cases the key issue would be proving corrupt intent. The president would argue he is simply asserting valid executive privileges in response to Congressional overreach and is not acting with corrupt intent. Congress would respond by pointing out the unprecedented nature and breadth of the president’s complete refusal to cooperate in the investigation or even to recognize its legitimacy.
It seems there would be a compelling case that by completely stonewalling Congress’s efforts to conduct an impeachment inquiry, the president did indeed act with the requisite corrupt intent to obstruct. And that’s a federal crime. The merits of the president’s defense would be up to the Senate during the impeachment trial. But there’s no question that Article Two contains allegations of criminality.
Conclusion: The Crimes Are In There
Once again, you don’t need to prove specific federal crimes for impeachment. But those who argue that these Articles of Impeachment are not based on criminal misconduct are wrong. The Articles may not cite specific federal statutes, but the conduct they describe would be indictable under several federal criminal laws.