We’ll believe that when we see it. But all the I-word chatter raises a question: Are we at the point yet where considering impeachment is really justified?
For help in answering this question, I spoke to Philip Bobbitt, the constitutional scholar at Columbia University who is the co-author of “Impeachment: A Handbook.” This excellent book republishes the famous commentary on impeachment by Yale Law School scholar Charles Black and concludes with Bobbit’s own meditations on the topic.
The book offers useful ways of approaching the complex question of how to determine whether presidential misconduct meets the Constitution’s threshold of “high crimes and misdemeanors.” Black suggests that “careful, patient inquiry” must establish acts of misconduct that “seriously threaten the order of political society." Bobbitt argues that this inquiry must establish a pattern of “wanton constitutional dereliction,” or of conduct that does meaningful “damage” to “the State’s legitimacy,” say, by calling a national election’s outcome into serious doubt.
On top of Trump’s well-documented pattern of obstructing the Russia investigation, we’ve now learned that Trump allegedly directed a criminal conspiracy to secure his election in the form of hush-money payments; that his company carried on secret financial dealings with Russia while he was wrapping up the GOP presidential nomination; and that special counsel Robert S. Mueller III has likely learned far more about potential Trump obstruction of justice, and a potential Trump campaign conspiracy with Russia’s sabotage of our election, than we know.
I asked Bobbitt to make sense of all this new misconduct within the framework he and Black established. A lightly edited and condensed transcript of our conversation follows.
PLUM LINE: Since you wrote this book, new evidence of wrongdoing has emerged on Trump’s part. These go to the heart of some of the things you talked about as impeachable offenses that cast elections into doubt.
BOBBITT: Some sort of systematic campaign of disinformation on a large scale — something done in collaboration, for example, with a foreign intelligence agency — those things would call the election into question. It doesn’t seem to me that the president’s payment of hush money rises to that level. The gravity of an impeachable offense must be enormous.
PLUM LINE: In the book, you read into the Nixon precedent that for impeachment over conduct relating to an election, you need a fairly broad pattern of misconduct that calls the legitimacy of the election into question. You don’t think the hush money rises to that?
BOBBITT: Not by itself. But it might be part of a whole pattern of electoral behavior. With other evidence of that — and we’re still waiting to know if there’s such evidence — I can see how it could be part of a pattern. But just standing alone, it doesn’t seem to have that kind of gravity.
PLUM LINE: On the Trump Tower Moscow, Trump wasn’t simply carrying on negotiations. He was also taking a public position, saying we need to improve relations with Putin and Russia. While offering that as being in the national interest, he actually had a financial stake in that argument. How does that fit into your framework in which the perversion of the political process is potential grounds for impeachment?
BOBBITT: If the president as a candidate changed the long-standing position of the Republican Party towards an adversary out of a corrupt motive, that is immensely important, because it suggests he’s pursuing secret policies. He is saying to the nation that we need to lighten up on sanctions, because we don’t want an adversarial relationship. That’s very different from wanting better relations because he benefits financially.
The framers contemplated the possibility that the president might be in the pay of some foreign country, and that he would shade his policies in accordance with his personal interest. The 18th century saw a lot of that. They comment on this, saying it would be grounds for impeachment.
PLUM LINE: The complication is that we don’t know that this was what was motivating Trump. But the fact that one suspects that this was possible is itself problematic.
BOBBITT: Corrupt motive is the key here. And it’s not obvious. It takes a lot of fact-finding and reflection. But one thing that supports that view would be an effort to lie about it. If you cover up something, it’s usually because your motives aren’t too lofty.
PLUM LINE: Trump lied about it. Cohen said he lied to Congress about it to remain in sync with Trump’s position. And Cohen may have shared information about possible discussions with people in Trump’s orbit in preparation for lying to Congress. Isn’t this a very ripe area?
BOBBITT: It’s a ripe area for further investigation. You want overwhelming evidence, without risking inference. Something like 40 percent of the American public is behind the president and is very suspicious of attempts to dislodge him. If there is a move to do that, you have to keep that 40 percent front and center in mind, so that the evidence is so overwhelming that by the time conviction takes place, that number won’t be 40 percent.
Having said that, while it’s wise that we seek overwhelming evidence in reversing an election, it’s a legal judgment. These are questions that call upon the consciences of the congressmen and senators. Were these to break down along partisan lines, as they did under the Bill Clinton precedent, the whole process is discredited.
PLUM LINE: We’re dealing with a different situation now. Trump has taken the disinformation to new levels, and he’s backed by a propaganda network of bad-faith media actors that are taking the disinformation to new levels, too. This is an apparatus that Nixon and even Clinton didn’t have at their disposals. I wonder if the fact that 40 percent will stand behind him no matter what emerges is a reflection of that. There’s a risk that if convincing them becomes the threshold, that propaganda apparatus has the power to veto a just, fact-based outcome. Is that something to worry about?
BOBBITT: Absolutely, but not so much in the impeachment context. If 40 percent of our fellow citizens are impervious to reason and fact-finding, we’ve got a real problem. Trump will go. But the problems you’re talking about are a much more serious issue.
PLUM LINE: Your book says that “the instructions of the Federalist Papers could not be clearer that impeachment is a punishment for a political crime.” We’re getting close to saying we’re looking at a major political crime, or a series of them.
We’re getting close to what Charles Black sets as the threshold, which is something that represents a major affront to the legitimacy of the process. What would have to emerge on the conspiracy and/or obstruction of justice fronts to get to this point that you’re talking about?
BOBBITT: If the president were to offer a pardon to someone who was either a witness or was under indictment, to tailor his testimony in a way that was favorable to the president — or to get him to refuse to cooperate with prosecutors — that might very well rise to this level of political crime.
As we try to demonstrate in the book, it really has to go to the integrity and legitimacy of the state. And I suppose that systematic witness tampering might very well go to the legitimacy of the institution of the presidency. Of course there are many allegations swirling around these indictments and guilty pleas besides witness tampering.
PLUM LINE: One thing that comes up in yours and Black’s commentary is whether a bunch of disparate strands of behavior can add up to something greater than the sum of its parts in doing damage to the body politic. Here we have so many different things. At what point do we get to say the sum total is so damaging to the integrity of our system that it crosses over?
BOBBITT: On the one hand, we do often speak of patterns of behavior that seem to indicate some larger damage to the society or the body politic. On the other hand, we have to be careful not to give the impression to the body of citizens that supports the president that we’re throwing on to the scale a lot of minutia, or things on which there’s a legitimate debate about the president’s discretionary powers.
The impeachment of a president is a constitutional matter of the greatest importance. It requires a degree of probity, judgment, and deference to the facts that very difficult legal decisions often require. These things aren’t easy. They shouldn’t be easy.