Dems Should Start Governing if Mueller Report Disappoints

Has Donald Trump committed impeachable offenses?

The Constitution states that a president shall be impeached by a vote of the U.S. House of Representatives if he or she has been guilty of "treason, bribery, or other high crimes and misdemeanors."

Defining those words is left to a majority of the House.

There is no mechanism for reviewing or nullifying the decision to impeach, other than failure to secure the required two-thirds U.S. Senate vote for conviction on impeachment charges. Following conviction, the official is removed, but if a two-thirds vote is not obtained, he or she remains in office.

Because impeachment and removal of the president nullifies the vote of the American people, there has been a consensus among scholars that impeachment should not be undertaken lightly. The framers did, in fact, make it clear that though they understood that impeachment would inevitably be a highly politicized proceeding, it was not to be used simply as a means to remove a President arbitrarily, or simply because Congress would prefer someone else in office.

The listing of offenses was supposed to include only serious abuses of power, or, as those of us who testified to Congress when the impeachment of Bill Clinton was underway, only those offenses where a president had demonstrated an inability to put the needs of the country before his own selfish concerns.

When President Clinton tampered with witnesses in Paula Jones’s lawsuit against him, when he lied to a grand jury considering that behavior, and when he lied as well to congressional investigators, we thought that threshold had been met. A majority of the House felt likewise, and impeached Mr. Clinton, but the Senate failed to convict.

Does the conduct of President Trump demonstrate impeachable offenses?

MSNBC "Hardball" host Chris Matthews certainly thinks so.

He recently claimed (1) that the president’s seeking to get the investigation of his adviser Michael Flynn terminated, (2) that the president’s firing of FBI Director James Comey because he refused to do so, and also because Comey failed to declare loyalty to the president "above the law," (3) that the president’s termination of Attorney General Jeff Sessions because Sessions followed the advice of Justice Department officials and recused himself from the Russia collusion investigation, (4) that Mr. Trump’s purported violation of campaign finance law by concealing payoffs to purported paramours, and (5) that the president’s attempts to get Russia to help in his election efforts are more than adequate to serve as the requisite high crimes and misdemeanors.

Matthews, a strong partisan, was wrong on his facts and on the Constitution. He wrongly misled his viewers. Comey deserved to be terminated, as many former attorneys general and deputy attorney generals made clear in communications to Mr. Trump by way of Deputy U.S. Attorney General Rod Rosenstein.

There is no harm in a president suggesting to an FBI director that an investigation should not go forward, when the decision is left to the FBI director, and, in any event, that of Michael Flynn did.

The president has complete discretion to fire an attorney general for any reason, and there is plenty of evidence to suggest that Jeff Sessions was not up to the job, or at least not up to the job of exposing the "Russia collusion" hoax.

It is the president who hires and fires cabinet members and FBI directors. If Congress seeks to remove a president for fulfilling his constitutional responsibilities, our constitutional scheme of separation of powers collapses.

The hush money payments to women and the concealing of them would likely be found not to be campaign finance violations, as a jury acquitted John Edwards of similar charges of silencing and concealing a mistress some years ago.

This may indicate a character flaw (although it should be borne in mind that the president denies a relationship to the two women involved), but hardly one that rises to the level of an impeachable offense if the Democrats who defended President Clinton for sexual peccadilloes were correct.

The only remaining serious charge that Mr. Matthews puts forward is the attempt to get Russians to help in Mr. Trump’s election efforts. This refers to a meeting that the president’s son had with a Russian lawyer claiming to have evidence of misconduct on the part of Mrs. Clinton.

There was no such evidence, and, of course, it is routine campaign behavior by both parties to seek information on rival candidates, and hardly an impeachable offense.

Unless the Mueller report surprises everyone by revealing evidence of illegal campaign coordination with Russians, it's time for Democrats to cease their dangerous efforts to undermine the Constitution by wrongly seeking to reverse an election they lost and to get on with the business of solving the nation’s actual problems.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.