Print text available as:

  • TXT
  • PDF (PDF provides a complete and accurate display of this text.) Tip?
CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT
[House Prints, 116th Congress]
[From the U.S. Government Publishing Office]


   
   116th Congress 1st }
                             COMMITTEE PRINT
         Session      }
         

_______________________________________________________________________

                                     



                       CONSTITUTIONAL GROUNDS FOR

                        PRESIDENTIAL IMPEACHMENT

                               ----------                              

                  REPORT BY THE MAJORITY STAFF OF THE

                    HOUSE COMMITTEE ON THE JUDICIARY

                               ----------                              

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                   ONE HUNDRED AND SIXTEENTH CONGRESS

                             FIRST SESSION
                        

             [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                             DECEMBER 2019
                             
                             
                             
                             
                             


116th Congress }
                          COMMITTEE PRINT
 1st Session   }
_______________________________________________________________________


                       CONSTITUTIONAL GROUNDS FOR

                        PRESIDENTIAL IMPEACHMENT

                               __________

                  REPORT BY THE MAJORITY STAFF OF THE

                    HOUSE COMMITTEE ON THE JUDICIARY

                               __________

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                   ONE HUNDRED AND SIXTEENTH CONGRESS

                             FIRST SESSION
                             

              [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
              
                                __________
                                
                   U.S. GOVERNMENT PUBLICHING OFFICE
                   
38-513                      WASHINGTON : 2019   





                         Foreword by Mr. Nadler

                              ----------                              

    I am pleased to make available a report prepared by the 
majority staff addressing constitutional grounds for 
presidential impeachment. The staff of the Committee on the 
Judiciary first produced a report addressing this topic in 
1974, during the impeachment inquiry into President Richard M. 
Nixon, and that report was updated by the majority and minority 
staff in 1998, during the impeachment inquiry into President 
William Jefferson Clinton. Over the past several decades, 
however, legal scholars and historians have undertaken a 
substantial study of the subject. The earlier reports remain 
useful points of reference, but no longer reflect the best 
available learning on questions relating to presidential 
impeachment. Further, they do not address several issues of 
constitutional law with particular relevance to the ongoing 
impeachment inquiry respecting President Donald J. Trump. For 
that reason, the majority staff of the Committee have prepared 
this report for the use of the Committee on the Judiciary.
    The views and conclusions contained in the report are staff 
views and do not necessarily reflect those of the Committee on 
the Judiciary or any of its members.
                                   Amy Rutkin,
                                           Chief of Staff.
                                   Perry Apelbaum,
                                           Staff Director and Chief 
                                               Counsel.
                                   Aaron Hiller,
                                           Deputy Chief Counsel and 
                                               Chief Oversight Counsel.
                                   Barry Berke,
                                           Special Counsel.
                                   Norman Eisen,
                                           Special Counsel.
                                   Arya Hariharan,
                                           Deputy Chief Oversight 
                                               Counsel.
                                   James Park,
                                           Chief Constitution Counsel.
                                   Joshua Matz,
                                           Counsel.
                                   Sophia Brill,
                                           Counsel.
                                   Charles Gayle,
                                           Counsel.
                                   Maggie Goodlander,
                                           Counsel.
                                   Sarah Istel,
                                           Counsel.
                                   Ted Kalo,
                                           Special Counsel.
                                   Matthew Morgan,
                                           Counsel.
                                   Matthew N. Robinson,
                                           Counsel.
                                   Kerry Tirrell,
                                           Counsel.
                                   Rachel Calanni,
                                           Professional Staff.
                                   William S. Emmons,
                                           Professional Staff.
                                   Priyanka Mara,
                                           Professional Staff.
                                   Madeline Strasser,
                                           Chief Clerk.
                                           
                                           
                                           
                                           
                                           
                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Introduction.....................................................1
 II. Summary of Principal Conclusions.................................2
III. The Purpose of Impeachment.......................................6
 IV. Impeachable Offenses............................................10
            A. Lessons from British and Early American History...    11
            B. Treason and Bribery...............................    12
              1. Impeachable Treason.............................    13
              2. Impeachable Bribery.............................    13
            C. Abuse, Betrayal & Corruption......................    16
              1. Abuse of Power..................................    16
              2. Betrayal of the National Interest Through 
                  Foreign Entanglements..........................    21
              3. Corruption of Office or Elections...............    23
            D. Conclusion........................................    26
  V. The Criminality Issue...........................................29
            A. History...........................................    29
            B. Constitutional Text and Structure.................    32
            C. The Purpose of Impeachment........................    34
            D. The Limited Relevance of Criminality..............    35
 VI. Addressing Fallacies About Impeachment..........................35
            A. The Impeachment Process...........................    36
            B. Evidentiary Considerations and Presidential 
                Obstruction......................................    38
            C. Abuse of Presidential Power is Impeachable........    41
            D. Presidential Pretexts Need Not Be Accepted at Face 
                Value............................................    43
            E. Attempted Presidential Misconduct Is Impeachable..    46
            F. Impeachment is Part of Democratic Governance......    47
VII. Conclusion......................................................48
Minority Views...................................................    49




 
          Constitutional Grounds for Presidential Impeachment

         Report by the Staff of the Committee on the Judiciary

                            I. Introduction

    Our President holds the ultimate public trust. He is vested 
with powers so great that they frightened the Framers of our 
Constitution; in exchange, he swears an oath to faithfully 
execute the laws that hold those powers in check. This oath is 
no formality. The Framers foresaw that a faithless President 
could destroy their experiment in democracy. As George Mason 
warned at the Constitutional Convention, held in Philadelphia 
in 1787, ``if we do not provide against corruption, our 
government will soon be at an end.'' \1\ Mason evoked a well-
known historical truth: when corrupt motives take root, they 
drive an endless thirst for power and contempt for checks and 
balances. It is then only the smallest of steps toward acts of 
oppression and assaults on free and fair elections. A President 
faithful only to himself--who will sell out democracy and 
national security for his own personal advantage--is a danger 
to every American. Indeed, he threatens America itself.
---------------------------------------------------------------------------
    \1\  Max Farrand, ed., The Records of the Federal Convention of 
1787, 392 (1911) (hereinafter, ``Records of the Federal Convention'').
---------------------------------------------------------------------------
    Impeachment is the Constitution's final answer to a 
President who mistakes himself for a monarch. Aware that power 
corrupts, our Framers built other guardrails against that 
error. The Constitution thus separates governmental powers, 
imposes an oath of faithful execution, prohibits profiting from 
office, and guarantees accountability through regular 
elections. But the Framers were not naive. They knew, and 
feared, that someday a corrupt executive might claim he could 
do anything he wanted as President. Determined to protect our 
democracy, the Framers built a safety valve into the 
Constitution: A President can be removed from office if the 
House of Representatives approves articles of impeachment 
charging him with ``Treason, Bribery, or other high Crimes and 
Misdemeanors,'' and if two-thirds of the Senate votes to find 
the President guilty of such misconduct after a trial.\2\
---------------------------------------------------------------------------
    \2\  U.S. Const. Art. II, Sec. 4; id. Art. I, Sec. 5, cl. 5; id. 
Art. I, Sec. 3, cl. 6.
---------------------------------------------------------------------------
    As Justice Joseph Story recognized, ``the power of 
impeachment is not one expected in any government to be in 
constant or frequent exercise.'' \3\ When faced with credible 
evidence of extraordinary wrongdoing, however, it is incumbent 
on the House to investigate and determine whether impeachment 
is warranted. On October 31, 2019, the House approved H. Res. 
660, which, among other things, confirmed the preexisting 
inquiry ``into whether sufficient grounds exist for the House 
of Representatives to exercise its Constitutional power to 
impeach Donald John Trump, President of the United States of 
America.'' \4\
---------------------------------------------------------------------------
    \3\  2 Joseph Story, Commentaries on the Constitution of the United 
States, 221 (1833).
    \4\  H. Res. 660, 116th Cong. (2019).
---------------------------------------------------------------------------
    The Judiciary Committee now faces questions of 
extraordinary importance. In prior impeachment inquiries 
addressing allegations of Presidential misconduct, the staff of 
the Judiciary Committee has prepared reports addressing 
relevant principles of constitutional law.\5\ Consistent with 
that practice, and to assist the Committee and the House in 
working toward a resolution of the questions before them, this 
staff report explores the meaning of the words in the 
Constitution's Impeachment Clause: ``Treason, Bribery, or other 
high Crimes and Misdemeanors.'' It also describes the 
impeachment process and addresses several mistaken claims about 
impeachment that have recently drawn public notice.
---------------------------------------------------------------------------
    \5\ Staff of H. Comm. on the Judiciary, 93d Cong., Constitutional 
Grounds for Presidential Impeachment 4 (Comm. Print 1974) (hereinafter 
``Constitutional Grounds for Presidential Impeachment (1974)''); Staff 
of H. Comm. on the Judiciary, 105th Cong., Constitutional Grounds for 
Presidential Impeachment: Modern Precedents (Comm. Print 1998) 
(hereinafter ``Constitutional Grounds for Presidential Impeachment: 
Modern Precedents (1998)'').
---------------------------------------------------------------------------

                  II. Summary of Principal Conclusions

    Our principal conclusions are as follows.
    The purpose of impeachment. As the Framers deliberated in 
Philadelphia, Mason posed a profound question: ``Shall any man 
be above justice?'' \6\ By authorizing Congress to remove 
Presidents for egregious misconduct, the Framers offered a 
resounding answer. As Mason elaborated, ``some mode of 
displacing an unfit magistrate is rendered indispensable by the 
fallibility of those who choose, as well as by the 
corruptibility of the man chosen.'' \7\ Unlike Britain's 
monarch, the President would answer personally--to Congress and 
thus to the Nation--if he engaged in serious wrongdoing. 
Alexander Hamilton explained that the President would have no 
more resemblance to the British king than to ``the Grand 
Seignior, to the khan of Tartary, [or] to the Man of the Seven 
Mountains.'' \8\ Whereas ``the person of the king of Great 
Britain is sacred and inviolable,'' the President of the United 
States could be ``impeached, tried, and upon conviction . . . 
removed from office.'' \9\ Critically, though, impeachment goes 
no further. It results only in loss of political power. This 
speaks to the nature of impeachment: it exists not to inflict 
punishment for past wrongdoing, but rather to save the Nation 
from misconduct that endangers democracy and the rule of law. 
Thus, the ultimate question in an impeachment is whether 
leaving the President in our highest office imperils the 
Constitution.\10\
---------------------------------------------------------------------------
    \6\ 2 Farrand, Records of the Federal Convention, at 65.
    \7\ 1 Farrand, Records of the Federal Convention, at 86.
    \8\ Alexander Hamilton, Federalist No. 69, 444 (Benjamin Fletcher 
Wright ed., 2004).
    \9\ Id.
    \10\ See Laurence H. Tribe, American Constitutional Law 155 (3d ed. 
2000).
---------------------------------------------------------------------------
    Impeachable offenses. The Framers were careful students of 
history and knew that threats to democracy can take many forms. 
They feared would-be monarchs, but also warned against fake 
populists, charismatic demagogues, and corrupt kleptocrats. The 
Framers thus intended impeachment to reach the full spectrum of 
Presidential misconduct that menaced the Constitution. Because 
they could not anticipate and prohibit every threat a President 
might someday pose, the Framers adopted a standard sufficiently 
general and flexible to meet unknown future circumstances: 
``Treason, Bribery, or other high Crimes and Misdemeanors.'' 
This standard was proposed by Mason and was meant, in his 
words, to capture all manner of ``great and dangerous 
offenses'' against the Constitution.\11\
---------------------------------------------------------------------------
    \11\  2 Farrand, Records of the Federal Convention, at 550.
---------------------------------------------------------------------------
    Treason and bribery. Applying traditional tools of 
interpretation puts a sharper point on this definition of 
``high Crimes and Misdemeanors.'' For starters, it is useful to 
consider the two impeachable offenses that the Framers 
identified for us. ``Treason'' is an unforgiveable betrayal of 
the Nation and its security. A President who levies war against 
the government, or lends aid and comfort to our enemies, cannot 
persist in office; a President who betrays the Nation once will 
most certainly do so again. ``Bribery,'' in turn, sounds in 
abuse of power. Impeachable bribery occurs when the President 
offers, solicits, or accepts something of personal value to 
influence his own official actions. By rendering such bribery 
impeachable, the Framers sought to ensure that the Nation could 
expel a leader who would sell out the interests of ``We the 
People'' for his own personal gain.
    In identifying ``other high Crimes and Misdemeanors,'' we 
are guided by the text and structure of the Constitution, the 
records of the Constitutional Convention and state ratifying 
debates, and the history of impeachment practice. These sources 
demonstrate that the Framers principally intended impeachment 
for three overlapping forms of Presidential wrongdoing: (1) 
abuse of power, (2) betrayal of the nation through foreign 
entanglements, and (3) corruption of office and elections. Any 
one of these violations of the public trust justifies 
impeachment; when combined in a single course of conduct, they 
state the strongest possible case for impeachment and removal 
from office.
    Abuse of power. There are at least as many ways to abuse 
power as there are powers vested in the President. It would 
thus be an exercise in futility to attempt a list of every 
abuse of power constituting ``high Crimes and Misdemeanors.'' 
That said, impeachable abuse of power can be roughly divided 
into two categories: engaging in official acts forbidden by law 
and engaging in official action with motives forbidden by law. 
As James Iredell explained, ``the president would be liable to 
impeachments [if] he had . . . acted from some corrupt motive 
or other.'' \12\ This warning echoed Edmund Randolph's teaching 
that impeachment must be allowed because ``the Executive will 
have great opportunitys of abusing his power.'' \13\ President 
Richard Nixon's conduct has come to exemplify impeachable abuse 
of power: he acted with corrupt motives in obstructing justice 
and using official power to target his political opponents, and 
his decision to unlawfully defy subpoenas issued by the House 
impeachment inquiry was unconstitutional on its face.
---------------------------------------------------------------------------
    \12\  Quoted in Background and History of Impeachment: Hearing 
before the Subcomm. On the Constitution of the H. Comm on the 
Judiciary, 105th Cong. 49 (1999) (hereinafter ``1998 Background and 
History of Impeachment Hearing'').
    \13\  2 Farrand, Records of the Federal Convention at 67.
---------------------------------------------------------------------------
    Betrayal involving foreign powers. As much as the Framers 
feared abuse, they feared betrayal still more. That anxiety is 
shot through their discussion of impeachment--and explains why 
``Treason'' heads the Constitution's list of impeachable 
offenses. James Madison put it simply: the President ``might 
betray his trust to foreign powers.'' \14\ Although the Framers 
did not intend impeachment for good faith disagreements on 
matters of diplomacy, they were explicit that betrayal of the 
Nation through schemes with foreign powers justified that 
remedy. Indeed, foreign interference in the American political 
system was among the gravest dangers feared by the Founders of 
our Nation and the Framers of our Constitution. In his farewell 
address, George Washington thus warned Americans ``to be 
constantly awake, since history and experience prove that 
foreign influence is one of the most baneful foes of republican 
government.'' \15\ And in a letter to Thomas Jefferson, John 
Adams wrote: ``You are apprehensive of foreign Interference, 
Intrigue, Influence. So am I. But, as often as Elections 
happen, the danger of foreign Influence recurs.'' \16\
---------------------------------------------------------------------------
    \14\ Id., at 65-66.
    \15\ George Washington Farewell Address (1796), George Washington 
Papers, Series 2, Letterbooks 1754-1799: Letterbook 24, April 3, 1793-
March 3, 1797, Library of Congress.
    \16\ To Thomas Jefferson from John Adams, 6 December 1787, National 
Archives, Founders Online.
---------------------------------------------------------------------------
    Corruption. Lurking beneath the Framers' discussion of 
impeachment was the most ancient and implacable foe of 
democracy: corruption. The Framers saw no shortage of threats 
to the Republic, and sought to guard against them, ``but the 
big fear underlying all the small fears was whether they'd be 
able to control corruption.'' \17\ As Madison put it, 
corruption ``might be fatal to the Republic.'' \18\ This was 
not just a matter of thwarting bribes; it was a far more 
expansive challenge. The Framers celebrated civic virtue and 
love of country; they wrote rules to ensure officials would not 
use public power for private gain.
---------------------------------------------------------------------------
    \17\ Zephyr Teachout, Corruption in America: From Benjamin 
Franklin's Snuff Box to Citizens United 57 (2014).
    \18\ 2 Farrand, Records of the Federal Convention, at 66.
---------------------------------------------------------------------------
    Impeachment was seen as especially necessary for 
Presidential conduct corrupting our system of political self-
government. That concern arose in multiple contexts as the 
Framers debated the Constitution. The most important was the 
risk that Presidents would place their personal interest in re-
election above our bedrock national commitment to democracy. 
The Framers knew that corrupt leaders concentrate power by 
manipulating elections and undercutting adversaries. They 
despised King George III, who ``resorted to influencing the 
electoral process and the representatives in Parliament in 
order to gain [his] treacherous ends.'' \19\ That is why the 
Framers deemed electoral treachery a central ground for 
impeachment. The very premise of the Constitution is that the 
American people govern themselves, and choose their leaders, 
through free and fair elections. When the President concludes 
that elections might threaten his grasp on power and abuses his 
office to sabotage opponents or invite inference, he rejects 
democracy itself and must be removed.
---------------------------------------------------------------------------
    \19\ Gordon S. Wood, The Creation of the American Republic, 1776-
1787 33 (1998).
---------------------------------------------------------------------------
    Conclusions regarding the nature of impeachable offenses. 
In sum, history teaches that ``high Crimes and Misdemeanors'' 
referred mainly to acts committed by public officials, using 
their power or privileges, that inflicted grave harm on our 
political order. Such great and dangerous offenses included 
treason, bribery, serious abuse of power, betrayal of the 
national interest through foreign entanglements, and corruption 
of office and elections. They were unified by a clear theme: 
officials who abused, abandoned, or sought personal benefit 
from their public trust--and who threatened the rule of law if 
left in power--faced impeachment. Each of these acts, moreover, 
should be plainly wrong to reasonable officials and persons of 
honor. When a political official uses political power in ways 
that substantially harm our political system, Congress can 
strip them of that power.
    Within these parameters, and guided by fidelity to the 
Constitution, the House must judge whether the President's 
misconduct is grave enough to require impeachment. That step 
must never be taken lightly. It is a momentous act, justified 
only when the President's full course of conduct, assessed 
without favor or prejudice, is ``seriously incompatible with 
either the constitutional form and principles of our government 
or the proper performance of constitutional duties of the 
presidential office.'' \20\ But when that high standard is met, 
the Constitution calls the House to action--and the House, in 
turn, must rise to the occasion. In such cases, a decision not 
to impeach can harm democracy and set an ominous precedent.
---------------------------------------------------------------------------
    \20\ Report of the Committee on the Judiciary, Impeachment of 
Richard M. Nixon, President of the United States, H.R. Rep. No. 93-1305 
8 (1974) (hereinafter ``Committee Report on Nixon Articles of 
Impeachment (1974)'').
---------------------------------------------------------------------------
    The criminality issue. It is occasionally suggested that 
Presidents can be impeached only if they have committed crimes. 
That position was rejected in President Nixon's case, and then 
rejected again in President Clinton's, and should be rejected 
once more. Offenses against the Constitution are different than 
offenses against the criminal code. Some crimes, like 
jaywalking, are not impeachable. And some forms of misconduct 
may offend both the Constitution and the criminal law. 
Impeachment and criminality must therefore be assessed 
separately--even though the President's commission of 
indictable crimes may further support a case for impeachment 
and removal. Ultimately, the House must judge whether a 
President's conduct offends and endangers the Constitution 
itself.
    Fallacies about impeachment. In the final section of this 
Report, we briefly address six falsehoods about impeachment 
that have recently drawn public notice.
    First, contrary to mistaken claims otherwise, we 
demonstrate that the current impeachment inquiry has complied 
in every respect with the Constitution, the Rules of the House, 
and historic practice and precedent of the House.
    Second, we address several evidentiary matters. The House 
impeachment inquiry has compiled substantial direct and 
circumstantial evidence bearing on the issues at hand. 
Nonetheless, President Trump has objected that some of the 
evidence gathered by the House comes from witnesses lacking 
first-hand knowledge of his conduct. But in the same breath, he 
has unlawfully ordered many witnesses with first-hand knowledge 
to defy House subpoenas. As we show, President Trump's 
assertions regarding the evidence before the House are 
misplaced as a matter of constitutional law and common sense.
    Third, we consider President Trump's claim that his actions 
are protected because of his right under Article II of the 
Constitution ``to do whatever I want as president.'' \21\ This 
claim is wrong, and profoundly so, because our Constitution 
rejects pretensions to monarchy and binds Presidents with law. 
That is true even of powers vested exclusively in the chief 
executive. If those powers are invoked for corrupt reasons, or 
wielded in an abusive manner harming the constitutional system, 
the President is subject to impeachment for ``high Crimes and 
Misdemeanors.'' This is a core premise of the impeachment 
power.
---------------------------------------------------------------------------
    \21\ Remarks by President Trump at Turning Point USA's Teen Student 
Action Summit 2019, July 23, 2019, The White House.
---------------------------------------------------------------------------
    Fourth, we address whether the House must accept at face 
value President Trump's claim that his motives were not 
corrupt. In short, no. When the House probes a President's 
state of mind, its mandate is to find the facts. That means 
evaluating the President's account of his motives to see if it 
rings true. The question is not whether the President's conduct 
could have resulted from permissible motives. It is whether the 
President's real reasons, the ones in his mind at the time, 
were legitimate. Where the House discovers persuasive evidence 
of corrupt wrongdoing, it is entitled to rely upon that 
evidence to impeach.
    Fifth, we explain that attempted Presidential wrongdoing is 
impeachable. Mason himself said so at the Constitutional 
Convention, where he described ``attempts to subvert the 
Constitution'' as a core example of ``great and dangerous 
offenses.'' \22\ Moreover, the Judiciary Committee reached the 
same conclusion in President Nixon's case. Historical precedent 
thus confirms that ineptitude and insubordination do not afford 
the President a defense to impeachment. A President cannot 
escape impeachment just because his scheme to abuse power, 
betray the nation, or corrupt elections was discovered and 
abandoned.
---------------------------------------------------------------------------
    \22\ Cass R. Sunstein, Impeachment: A Citizen's Guide 47 (2017).
---------------------------------------------------------------------------
    Finally, we consider whether impeachment ``nullifies'' the 
last election or denies voters their voice in the next one. The 
Framers themselves weighed this question. They considered 
relying solely on elections--rather than impeachment--to remove 
wayward Presidents. That position was firmly rejected. No 
President is entitled to persist in office after committing 
``high Crimes and Misdemeanors,'' and no one who voted for him 
in the last election is entitled to expect he will do so. Where 
the President's misconduct is aimed at corrupting elections, 
relying on elections to solve the problem is no safeguard at 
all.

                    III. The Purpose of Impeachment

    Freedom must not be taken for granted. It demands constant 
protection from leaders whose taste of power sparks a voracious 
need for more. Time and again, republics have fallen to 
officials who care little for the law and use the public trust 
for private gain.
    The Framers of the Constitution knew this well. They saw 
corruption erode the British constitution from within. They 
heard kings boast of their own excellence while conspiring with 
foreign powers and consorting with shady figures. As talk of 
revolution spread, they objected as King George III used favors 
and party politics to control Parliament, aided by men who sold 
their souls and welcomed oppression.
    The Framers risked their freedom, and their lives, to 
escape that monarchy. So did their families and many of their 
friends. Together, they resolved to build a nation committed to 
democracy and the rule of law--a beacon to the world in an age 
of aristocracy. In the United States of America, ``We the 
People'' would be sovereign. We would choose our own leaders 
and hold them accountable for how they exercised power.
    As they designed our government at the Constitutional 
Convention, however, the Framers faced a dilemma. On the one 
hand, many of them embraced the need for a powerful chief 
executive. This had been cast into stark relief by the failure 
of the Nation's very first constitution, the Articles of 
Confederation, which put Congress in charge at the federal 
level. The ensuing discord led James Madison to warn, ``it is 
not possible that a government can last long under these 
circumstances.'' \23\ The Framers therefore created the 
Presidency. A single official could lead the Nation with 
integrity, energy, and dispatch--and would be held personally 
responsible for honoring that immense public trust.
---------------------------------------------------------------------------
    \23\ Quoted in id., at 27.
---------------------------------------------------------------------------
    Power, though, is a double-edged sword. ``The power to do 
good meant also the power to do harm, the power to serve the 
republic also meant the power to demean and defile it.'' \24\ 
The President would be vested with breathtaking authority. If 
corrupt motives took root in his mind, displacing civic virtue 
and love of country, he could sabotage the Constitution. That 
was clear to the Framers, who saw corruption as ``the great 
force that had undermined republics throughout history.'' \25\ 
Obsessed with the fall of Rome, they knew that corruption 
marked a leader's path to abuse and betrayal. Mason thus 
emphasized, ``if we do not provide against corruption, our 
government will soon be at an end.'' This warning against 
corruption--echoed no fewer than 54 times by 15 delegates at 
the Convention--extended far beyond bribes and presents. To the 
Framers, corruption was fundamentally about the misuse of a 
position of public trust for any improper private benefit. It 
thus went to the heart of their conception of public service. 
As a leading historian recounts, ``a corrupt political actor 
would either purposely ignore or forget the public good as he 
used the reins of power.'' \26\ Because men and women are not 
angels, corruption could not be fully eradicated, even in 
virtuous officials, but ``its power can be subdued with the 
right combination of culture and political rules.'' \27\
---------------------------------------------------------------------------
    \24\ Arthur M. Schlesinger, Jr., The Imperial Presidency 415 
(1973).
    \25\ Elizabeth B. Wydra & Brianne J. Gorod, The First Magistrate in 
Foreign Pay, The New Republic, Nov. 11, 2019.
    \26\ Teachout, Corruption in America, at 48.
    \27\ Id., at 47.
---------------------------------------------------------------------------
    The Framers therefore erected safeguards against 
Presidential abuse. Most famously, they divided power among 
three branches of government that had the means and motive to 
balance each other. ``Ambition,'' Madison reasoned, ``must be 
made to counteract ambition.'' \28\ In addition, the Framers 
subjected the President to election every four years and 
established the Electoral College (which, they hoped, would 
select virtuous, capable leaders and refuse to re-elect corrupt 
or unpopular ones). Finally, the Framers imposed on the 
President a duty to faithfully execute the laws--and required 
him to accept that duty in a solemn oath.\29\ To the Framers, 
the concept of faithful execution was profoundly important. It 
prohibited the President from taking official acts in bad faith 
or with corrupt intent, as well as acts beyond what the law 
authorized.\30\
---------------------------------------------------------------------------
    \28\ James Madison, Federalist No. 51, at 356.
    \29\ U.S. Const. Art. II, Sec. 1, cl. 8.
    \30\ See Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman, 
Faithful Execution and Article II, 132 Harv. L. Rev. 2111-2121 (2019).
---------------------------------------------------------------------------
    A few Framers would have stopped there. This minority 
feared vesting any branch of government with the power to end a 
Presidency; as they saw it, even extreme Presidential 
wrongdoing could be managed in the normal course (mainly by 
periodic elections).
    That view was decisively rejected. As Professor Raoul 
Berger writes, ``the Framers were steeped in English history; 
the shades of despotic kings and conniving ministers marched 
before them.'' \31\ Haunted by those lessons, and convening in 
the shadow of revolution, the Framers would not deny the Nation 
an escape from Presidents who deemed themselves above the law. 
So they turned to a mighty constitutional power, one that 
offered a peaceful and politically accountable method for 
ending an oppressive Presidency.
---------------------------------------------------------------------------
    \31\ Raoul Berger, Impeachment: The Constitutional Problems 4 
(1974).
---------------------------------------------------------------------------
    This was impeachment, a legal relic from the British past 
that over the preceding century had found a new lease on life 
in the North American colonies. First deployed in 1376--and 
wielded in fits and starts over the following 400 years--
impeachment allowed Parliament to charge royal ministers with 
abuse, remove them from office, and imprison them. Over time, 
impeachment helped Parliament shift power away from royal 
absolutism and encouraged more politically accountable 
administration. In 1679, it was thus proclaimed in the House of 
Commons that impeachment was ``the chief institution for the 
preservation of government.'' \32\ That sentiment was echoed in 
the New World. Even as Parliamentary impeachment fell into 
disuse by the early 1700s, colonists in Maryland, Pennsylvania, 
and Massachusetts laid claim to this prerogative as part of 
their English birthright. During the revolution, ten states 
ratified constitutions allowing the impeachment of executive 
officials--and put that power to use in cases of corruption and 
abuse of power.\33\ Unlike in Britain, though, American 
impeachment did not result in fines or jailtime. It simply 
removed officials from political power when their conduct 
required it.
---------------------------------------------------------------------------
    \32\ Id., at 1 n.2.
    \33\ Frank O. Bowman, III, High Crimes and Misdemeanors: A History 
of Impeachment for the Age of Trump 72 (2019).
---------------------------------------------------------------------------
    Familiar with the use of impeachment to address lawless 
officials, the Framers offered a clear answer to Mason's 
question at the Constitutional Convention, ``Shall any man be 
above justice''? \34\ As Mason himself explained, ``some mode 
of displacing an unfit magistrate is rendered indispensable by 
the fallibility of those who choose, as well as by the 
corruptibility of the man chosen.'' \35\ Future Vice President 
Elbridge Gerry agreed, adding that impeachment repudiates the 
fallacy that our ``chief magistrate could do no wrong.'' \36\ 
Benjamin Franklin, in turn, made the case that impeachment is 
``the best way'' to assess claims of serious wrongdoing by a 
President; without it, those accusations would fester 
unresolved and invite enduring conflict over Presidential 
malfeasance.\37\
---------------------------------------------------------------------------
    \34\ 2 Farrand, Records of the Federal Convention, at 65-67.
    \35\ 1 Farrand, Records of the Federal Convention, at 66.
    \36\ 2 Farrand, Records of the Federal Convention, at 66.
    \37\ James Madison, Notes on Debates in the Federal Convention of 
1787 332 (1987).
---------------------------------------------------------------------------
    Unlike in Britain, the President would answer personally--
to Congress and thus to the Nation--for any serious wrongdoing. 
For that reason, as Hamilton later explained, the President 
would have no more resemblance to the British king than to 
``the Grand Seignior, to the khan of Tartary, [or] to the Man 
of the Seven Mountains.'' \38\ Whereas ``the person of the king 
of Great Britain is sacred and inviolable,'' the President 
could be ``impeached, tried, and upon conviction . . . removed 
from office.'' \39\
---------------------------------------------------------------------------
    \38\ Alexander Hamilton, Federalist No. 69, at 444.
    \39\ Id.
---------------------------------------------------------------------------
    Of course, the decision to subject the President to 
impeachment was not the end of the story. The Framers also had 
to specify how this would work in practice. After long and 
searching debate they made three crucial decisions, each of 
which sheds light on their understanding of impeachment's 
proper role in our constitutional system.
    First, they limited the consequences of impeachment to 
``removal from Office'' and ``disqualification'' from future 
officeholding.\40\ To the extent the President's wrongful 
conduct also breaks the law, the Constitution expressly 
reserves criminal punishment for the ordinary processes of 
criminal law. In that respect, ``the consequences of 
impeachment and conviction go just far enough, and no further 
than, to remove the threat posed to the Republic by an unfit 
official.'' \41\ This speaks to the very nature of impeachment: 
it exists not to inflict personal punishment for past 
wrongdoing, but rather to protect against future Presidential 
misconduct that would endanger democracy and the rule of 
law.\42\
---------------------------------------------------------------------------
    \40\ U.S. Const. Art. I, Sec. 43, cl. 7.
    \41\ John O. McGinnis, Impeachment: The Structural Understanding, 
67 Geo. Wash. L. Rev. 650, 650 (1999).
    \42\ See Tribe, American Constitutional Law, at 155.
---------------------------------------------------------------------------
    Second, the Framers vested the House with ``the sole Power 
of Impeachment.'' \43\ The House thus serves in a role 
analogous to a grand jury and prosecutor: it investigates the 
President's misconduct and decides whether to formally accuse 
him of impeachable acts. As James Iredell explained during 
debates over whether to ratify the Constitution, ``this power 
is lodged in those who represent the great body of the people, 
because the occasion for its exercise will arise from acts of 
great injury to the community.'' \44\ The Senate, in turn, 
holds ``the sole Power to try all Impeachments.'' \45\ When the 
Senate sits as a court of impeachment for the President, each 
Senator must swear a special oath, the Chief Justice of the 
United States presides, and conviction requires ``the 
concurrence of two thirds of the Members present.'' \46\ By 
designating Congress to accuse the President and conduct his 
trial, the Framers confirmed--in Hamilton's words--that 
impeachment concerns an ``abuse or violation of some public 
trust'' with ``injuries done immediately to the society 
itself.'' \47\ Impeachment is reserved for offenses against our 
political system. It is therefore prosecuted and judged by 
Congress, speaking for the Nation.
---------------------------------------------------------------------------
    \43\ U.S. Const. Art. I, Sec. 2, cl. 5.
    \44\ 4 Jonathan Elliot, ed., The Debates in the Several State 
Conventions on the Adoption of the Federal Constitution 113 (1861) 
(hereinafter ``Debates in the Several State Conventions'').
    \45\ U.S. Const. Art. I, Sec. 3, cl. 6.
    \46\ Id.
    \47\ Alexander Hamilton, Federalist No. 65, at 426.
---------------------------------------------------------------------------
    Last, but not least, the Framers imposed a rule of 
wrongdoing. The President cannot be removed based on poor 
management, general incompetence, or unpopular policies. 
Instead, the question in any impeachment inquiry is whether the 
President has engaged in misconduct justifying an early end to 
his term in office: ``Treason, Bribery, or other high Crimes 
and Misdemeanors.'' \48\ This phrase had a particular legal 
meaning to the Framers. It is to that understanding, and to its 
application in prior Presidential impeachments, that we now 
turn.
---------------------------------------------------------------------------
    \48\ U.S. Const. Art. II, Sec. 4.
---------------------------------------------------------------------------

                        IV. Impeachable Offenses

    As careful students of history, the Framers knew that 
threats to democracy can take many forms. They feared would-be 
monarchs, but also warned against fake populists, charismatic 
demagogues, and corrupt kleptocrats. In describing the kind of 
leader who might menace the Nation, Hamilton offered an 
especially striking portrait:

          When a man unprincipled in private life[,] desperate 
        in his fortune, bold in his temper . . . known to have 
        scoffed in private at the principles of liberty
          --when such a man is seen to mount the hobby horse of 
        popularity--to join in the cry of danger to liberty--to 
        take every opportunity of embarrassing the General 
        Government & bringing it under suspicion--to flatter 
        and fall in with all the non sense [sic] of the zealots 
        of the day--It may justly be suspected that his object 
        is to throw things into confusion that he may ride the 
        storm and direct the whirlwind.\49\
---------------------------------------------------------------------------
    \49\ Alexander Hamilton, ``Objections and Answers respecting the 
Administration of the Government,'' Founders Online, National Archives.

This prophesy echoed Hamilton's warning, in Federalist No. 1, 
that ``of those men who have overturned the liberties of 
republics, the greatest number have begun their career by 
paying an obsequious court to the people; commencing 
demagogues, and ending tyrants.'' \50\
---------------------------------------------------------------------------
    \50\ Alexander Hamilton, Federalist No. 1, at 91.
---------------------------------------------------------------------------
    The Framers thus intended impeachment to reach the full 
spectrum of Presidential misconduct that threatened the 
Constitution. They also intended our Constitution to endure for 
the ages. Because they could not anticipate and specifically 
prohibit every threat a President might someday pose, the 
Framers adopted a standard sufficiently general and flexible to 
meet unknown future circumstances. This standard was meant--as 
Mason put it--to capture all manner of ``great and dangerous 
offenses'' incompatible with the Constitution. When the 
President uses the powers of his high office to benefit 
himself, while injuring or ignoring the American people he is 
oath-bound to serve, he has committed an impeachable offense.
    Applying the tools of legal interpretation, as we do below, 
puts a sharper point on this definition of ``high Crimes and 
Misdemeanors.'' It also confirms that the Framers principally 
aimed the impeachment power at a few core evils, each grounded 
in a unifying fear that a President might abandon his duty to 
faithfully execute the laws. Where the President engages in 
serious abuse of power, betrays the national interest through 
foreign entanglements, or corrupts his office or elections, he 
has undoubtedly committed ``high Crimes and Misdemeanors'' as 
understood by the Framers. Any one of these violations of the 
public trust is impeachable. When combined in a scheme to 
advance the President's personal interests while ignoring or 
injuring the Constitution, they state the strongest possible 
case for impeachment and removal from office.

           A. Lessons From British and Early American History

    As Hamilton recounted, Britain afforded ``[t]he model from 
which the idea of [impeachment] has been borrowed.'' \51\ That 
was manifestly true of the phrase ``high Crimes and 
Misdemeanors.'' The Framers could have authorized impeachment 
for ``crimes'' or ``serious crimes.'' Or they could have 
followed the practice of many American state constitutions and 
permitted impeachment for ``maladministration'' or 
``malpractice.'' \52\ But they instead selected a ``unique 
phrase used for centuries in English parliamentary 
impeachments.'' \53\ To understand their choice requires a 
quick tour through history.
---------------------------------------------------------------------------
    \51\ Alexander Hamilton, Federalist No. 65, at 427.
    \52\ Bowman, High Crimes and Misdemeanors, at 65-72.
    \53\ Constitutional Grounds for Presidential Impeachment (1974), at 
4.
---------------------------------------------------------------------------
    That tour offers two lessons. The first is that the phrase 
``high Crimes and Misdemeanors'' was used only for 
parliamentary impeachments; it was never used in the ordinary 
criminal law.\54\ Moreover, in the 400-year history of British 
impeachments, the House of Commons impeached many officials on 
grounds that did not involve any discernibly criminal conduct. 
Indeed, the House of Commons did so yet again just as the 
Framers gathered in Philadelphia. That same month, Edmund 
Burke--the celebrated champion of American liberty--brought 
twenty-two articles of impeachment against Warren Hastings, the 
Governor General of India. Burke charged Hastings with offenses 
including abuse of power, corruption, disregarding treaty 
obligations, and misconduct of local wars. Historians have 
confirmed that ``none of the charges could fairly be classed as 
criminal conduct in any technical sense.'' \55\ Aware of that 
fact, Burke accused Hastings of ``[c]rimes, not against forms, 
but against those eternal laws of justice, which are our rule 
and our birthright: his offenses are not in formal, technical 
language, but in reality, in substance and effect, High Crimes 
and High Misdemeanors.'' \56\
---------------------------------------------------------------------------
    \54\ See id.
    \55\ Bowman, High Crimes and Misdemeanors, at 41.
    \56\ Id.
---------------------------------------------------------------------------
    Burke's denunciation of Hastings points to the second 
lesson from British history: ``high Crimes and Misdemeanors'' 
were understood as offenses against the constitutional system 
itself. This is confirmed by use of the word ``high,'' as well 
as Parliamentary practice. From 1376 to 1787, the House of 
Commons impeached officials on seven general grounds: (1) abuse 
of power; (2) betrayal of the nation's security and foreign 
policy; (3) corruption; (4) armed rebellion [a.k.a. treason]; 
(5) bribery; (6) neglect of duty; and (7) violating 
Parliament's constitutional prerogatives.\57\ To the Framers 
and their contemporaries learned in the law, the phrase ``high 
Crimes and Misdemeanors'' would have called to mind these 
offenses against the body politic.
---------------------------------------------------------------------------
    \57\ Id., at 46; Berger, Impeachment, at 70.
---------------------------------------------------------------------------
    The same understanding prevailed on this side of the 
Atlantic. In the colonial period and under newly-ratified state 
constitutions, most impeachments targeted abuse of power, 
betrayal of the revolutionary cause, corruption, treason, and 
bribery.\58\ Many Framers at the Constitutional Convention had 
participated in drafting their state constitutions, or in 
colonial and state removal proceedings, and were steeped in 
this outlook on impeachment. Further, the Framers knew well the 
Declaration of Independence, ``whose bill of particulars 
against King George III modeled what [we would] now view as 
articles of impeachment.'' \59\ That bill of particulars did 
not dwell on technicalities of criminal law, but rather charged 
the king with a ``long train of abuses and usurpations,'' 
including misuse of power, efforts to obstruct and undermine 
elections, and violating individual rights.\60\
---------------------------------------------------------------------------
    \58\  See Peter Charles Hoffer & N. E. H. Hull, Impeachment in 
America, 1635-1805 1-106 (1984).
    \59\ Laurence H. Tribe & Joshua Matz, To End a Presidency: The 
Power of Impeachment 7 (2018).
    \60\ The Declaration of Independence, Thomas Jefferson, et al, July 
4, 1776, Copy of Declaration of Independence, Library of Congress.
---------------------------------------------------------------------------
    History thus teaches that ``high Crimes and Misdemeanors'' 
referred mainly to acts committed by public officials, using 
their power or privileges, that inflicted grave harm on society 
itself. Such great and dangerous offenses included treason, 
bribery, abuse of power, betrayal of the nation, and corruption 
of office. They were unified by a clear theme: officials who 
abused, abandoned, or sought personal benefit from their public 
trust--and who threatened the rule of law if left in power--
faced impeachment and removal.

                         B. Treason and Bribery

    For the briefest of moments at the Constitutional 
Convention, it appeared as though Presidential impeachment 
might be restricted to ``treason, or bribery.'' \61\ But when 
this suggestion reached the floor, Mason revolted. With 
undisguised alarm, he warned that such limited grounds for 
impeachment would miss ``attempts to subvert the 
Constitution,'' as well as ``many great and dangerous 
offenses.'' \62\ Here he invoked the charges pending in 
Parliament against Hastings as a case warranting impeachment 
for reasons other than treason. To ``extend the power of 
impeachments,'' Mason initially suggested adding ``or 
maladministration'' after ``treason, or bribery.'' \63\ 
Madison, however, objected that ``so vague a term will be 
equivalent to a tenure during the pleasure of the Senate.'' 
\64\ In response, Mason substituted ``other high Crimes and 
Misdemeanors.'' \65\ Apparently pleased with Mason's 
compromise, the Convention accepted his proposal and moved on.
---------------------------------------------------------------------------
    \61\ 2 Farrand, Records of the Federal Convention, at 550.
    \62\ Id.
    \63\ Id.
    \64\ Id
    \65\ Id.
---------------------------------------------------------------------------
    This discussion confirms that Presidential impeachment is 
warranted for all manner of great and dangerous offenses that 
subvert the Constitution. It also sheds helpful light on the 
nature of impeachable offenses: in identifying ``other high 
Crimes and Misdemeanors,'' we can start with two that the 
Framers identified for us, ``Treason'' and ``Bribery.''

                         1. IMPEACHABLE TREASON

    Under Article III of the Constitution, ``treason against 
the United States, shall consist only in levying War against 
them, or in adhering to their Enemies, giving them Aid and 
Comfort.'' \66\ In other words, a person commits treason if he 
uses armed force in an attempt to overthrow the government, or 
if he knowingly gives aid and comfort to nations (or 
organizations) with which the United States is in a state of 
declared or open war. At the very heart of ``Treason'' is 
deliberate betrayal of the nation and its security. Such 
betrayal would not only be unforgivable, but would also confirm 
that the President remains a threat if allowed to remain in 
office. A President who has knowingly betrayed national 
security is a President who will do so again. He endangers our 
lives and those of our allies.
---------------------------------------------------------------------------
    \66\ U.S. Const. Art. III, 3, cl. 1.
---------------------------------------------------------------------------

                         2. IMPEACHABLE BRIBERY

    The essence of impeachable bribery is a government 
official's exploitation of his or her public duties for 
personal gain. To the Framers, it was received wisdom that 
nothing can be ``a greater Temptation to Officers [than] to 
abuse their Power by Bribery and Extortion.'' \67\ To guard 
against that risk, the Framers authorized the impeachment of a 
President who offers, solicits, or accepts something of 
personal value to influence his own official actions. By 
rendering such ``Bribery'' impeachable, the Framers sought to 
ensure that the Nation could expel a leader who would sell out 
the interests of ``We the People'' to achieve his own personal 
gain.
---------------------------------------------------------------------------
    \67\ William Hawkins, A Treatise of Pleas to the Crown, ch. 67, 
Sec. 3 (1716).
---------------------------------------------------------------------------
    Unlike ``Treason,'' which is defined in Article III, 
``Bribery'' is not given an express definition in the 
Constitution. But as Justice Joseph Story explained, a ``proper 
exposition of the nature and limits of this offense'' can be 
found in the Anglo-American common law tradition known well to 
our Framers.\68\ That understanding, in turn, can be refined by 
reference to the Constitution's text and the records of the 
Constitutional Convention.\69\
---------------------------------------------------------------------------
    \68\ 2 Story, Commentaries, at 263; see also H.R. Rep. No. 946, at 
19 (1912).
    \69\ For example, while the English common law tradition 
principally addressed itself to judicial bribery, the Framers 
repeatedly made clear at the Constitutional Convention that they 
intended to subject the President to impeachment for bribery. They 
confirmed this intention in the Impeachment Clause, which authorizes 
the impeachment of ``[t]he President, Vice President and all civil 
Officers of the United States'' for ``Treason, Bribery, or other high 
Crimes and Misdemeanors.'' U.S. Const., Art. 2, Sec. 4. It is therefore 
proper to draw upon common law principles and to apply them to the 
office of the Presidency.
---------------------------------------------------------------------------
    To start with common law: At the time of the Constitutional 
Convention, bribery was well understood in Anglo-American law 
to encompass offering, soliciting, or accepting bribes. In 
1716, for example, William Hawkins defined bribery in an 
influential treatise as ``the receiving or offering of any 
undue reward, by or to any person whatsoever . . . in order to 
incline him to do a thing against the known rules of honesty 
and integrity.'' \70\ This description of the offense was 
echoed many times over the following decades. In a renowned 
bribery case involving the alleged solicitation of bribes, Lord 
Mansfield agreed that ``[w]herever it is a crime to take, it is 
a crime to give: they are reciprocal.'' \71\ Two years later, 
William Blackstone confirmed that ``taking bribes is 
punished,'' just as bribery is punishable for ``those who offer 
a bribe, though not taken.'' \72\ Soliciting a bribe--even if 
it is not accepted--thus qualified as bribery at common law. 
Indeed, it was clear under the common law that ``the attempt is 
a crime; it is complete on his side who offers it.'' \73\
---------------------------------------------------------------------------
    \70\ Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2 
(1716).
    \71\ Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769).
    \72\ William Blackstone, Commentaries on the Laws of England, Vol. 
2, Book 4, Ch. 10, Sec. 17 (1771).
    \73\ Rex v. Vaughan, 98 Eng. Rep. 308, 311 (K.B. 1769). American 
courts have subsequently repeated this precise formulation. See, e.g., 
State v. Ellis, 33 N.J.L. 102, 104 (N.J. Sup. Ct. 1868) (``The offence 
is complete when an offer or reward is made to influence the vote or 
action of the official.''); see also William O. Russell, A Treatise on 
Crimes and Misdemeanors 239-240 (1st American Ed) (1824) (``The law 
abhors the least tendency to corruption; and up on the principle which 
has been already mentioned, of an attempt to commit even a misdemeanor, 
being itself a misdemeanor, (f) attempts to bribe, though unsuccessful, 
have in several cases been held to be criminal.'').
---------------------------------------------------------------------------
    The Framers adopted that principle into the Constitution. 
As Judge John Noonan explains, the drafting history of the 
Impeachment Clause demonstrates that `` `Bribery' was read both 
actively and passively, including the chief magistrate bribing 
someone and being bribed.'' \74\ Many scholars of Presidential 
impeachment have reached the same conclusion.\75\ Impeachable 
``Bribery'' thus covers--inter alia--the offer, solicitation, 
or acceptance of something of personal value by the President 
to influence his own official actions.
---------------------------------------------------------------------------
    \74\ John T. Noonan, Jr., Bribes: The Intellectual History of a 
Moral Idea, 430 (1984).
    \75\ As Professor Bowman writes, bribery was ``a common law crime 
that developed from a narrow beginning'' to reach ``giving, and 
offering to give, [any] improper rewards.'' Bowman, High Crimes & 
Misdemeanors, at 243; see also, e.g., Tribe & Matz, To End A 
Presidency, at 33 (``The corrupt exercise of power in exchange for a 
personal benefit defines impeachable bribery. That's self-evidently 
true whenever the president receives bribes to act a certain way. But 
it's also true when the president offers bribes to other officials--for 
example, to a federal judge, a legislator, or a member of the Electoral 
College . . . In either case, the president is fully complicit in a 
grave degradation of power, and he can never again be trusted to act as 
a faithful public servant.'').
---------------------------------------------------------------------------
    This conclusion draws still more support from a closely 
related part of the common law. In the late-17th century, 
``bribery'' was a relatively new offense, and was understood as 
overlapping with the more ancient common law crime of 
``extortion.'' \76\ ``Extortion,'' in turn, was defined as the 
``abuse of public justice, which consists in any officer's 
unlawfully taking, by colour of his office, from any man, any 
money or thing of value, that is not due to him, or more than 
is due, or before it is due.'' \77\ Under this definition, both 
bribery and extortion occurred when an official used his public 
position to obtain private benefits to which he was not 
entitled. Conduct which qualified as bribery was therefore 
``routinely punished as common law extortion.'' \78\ To the 
Framers, who would have seen bribery and extortion as virtually 
coextensive, when a President acted in his official capacity to 
offer, solicit, or accept an improper personal benefit, he 
committed ``Bribery.'' \79\
---------------------------------------------------------------------------
    \76\ See James Lindgren, The Elusive Distinction Between Bribery 
and Extortion: From the Common Law to the Hobbs Act, 35 UCLA L. Rev. 
815, 839 (1988).
    \77\ Blackstone, Commentaries, Vol. 2, Book 4, Ch. 10, Sec. 22 
(1771) (citing 1 Hawk. P. C. 170); accord Giles Jacob, A New Law-
Dictionary 102 (1782) (defining ``Extortion'' as ``an unlawful taking 
by an officer, &c. by colour of his office, of any money, or valuable 
thing, from a person where none at all is due, or not so much is due, 
or before it is due'').
    \78\ Lindgren, The Elusive Distinction, 35 UCLA L. Rev. at 839.
    \79\ For all the reasons given below in our discussion of the 
criminality issue, impeachable ``Bribery'' does not refer to the 
meaning of bribery under modern federal criminal statutes. See also 
Bowman, High Crimes & Misdemeanors, at 243-44; Tribe & Matz, To End A 
Presidency, at 31-33.
---------------------------------------------------------------------------
    Turning to the nature of the improper personal benefit: 
because officials can be corrupted in many ways, the benefit at 
issue in a bribe can be anything of subjective personal value 
to the President. This is not limited to money. Indeed, given 
their purposes, it would have made no sense for the Framers to 
confine ``Bribery'' to the offer, solicitation, or acceptance 
of money, and they expressed no desire to impose that 
restriction. To the contrary, in guarding against foreign 
efforts to subvert American officials, they confirmed their 
broad view of benefits that might cause corruption: a person 
who holds ``any Office of Profit or Trust,'' such as the 
President, is forbidden from accepting ``any present, Office or 
Tile, of any kind whatever, from . . . a foreign State.'' \80\ 
An equally pragmatic (and capacious) view applies to the 
impeachable offense of ``Bribery.'' This view is further 
anchored in the very same 17th and 18th century common law 
treatises that were well known to the Framers. Those 
authorities used broad language in defining what qualifies as a 
``thing of value'' in the context of bribery: ``any undue 
reward'' or any ``valuable consideration.'' \81\
---------------------------------------------------------------------------
    \80\ U.S. Const, art. I, Sec. 9, cl.8.
    \81\ Hawkins, A Treatise of Pleas to the Crown, ch. 67, Sec. 2 
(1716).
---------------------------------------------------------------------------
    To summarize, impeachable ``Bribery'' occurs when a 
President offers, solicits, or accepts something of personal 
value to influence his own official actions. Bribery is thus an 
especially egregious and specific example of a President 
abusing his power for private gain. As Blackstone explained, 
bribery is ``the genius of despotic countries where the true 
principles of government are never understood''--and where ``it 
is imagined that there is no obligation from the superior to 
the inferior, no relative duty owing from the governor to the 
governed.'' \82\ In our democracy, the Framers understood that 
there is no place for Presidents who would abuse their power 
and betray the public trust through bribery.
---------------------------------------------------------------------------
    \82\ Blackstone, Commentaries on the Laws of England, Book 4, Ch. 
10 ``Of Offenses Against Public Justice'' (1765-1770).
---------------------------------------------------------------------------
    Like ``Treason,'' the offense of ``Bribery'' is thus aimed 
at a President who is a continuing threat to the Constitution. 
Someone who would willingly assist our enemies, or trade public 
power for personal favors, is the kind of person likely to 
break the rules again if they remain in office. But there is 
more: both ``Treason'' and ``Bribery'' are serious offenses 
with the capacity to corrupt constitutional governance and harm 
the Nation itself; both involve wrongdoing that reveals the 
President as a continuing threat if left in power; and both 
offenses are ``plainly wrong in themselves to a person of 
honor, or to a good citizen, regardless of words on the statute 
books.'' \83\ Looking to the Constitution's text and history--
including the British, colonial, and early American traditions 
discussed earlier--these characteristics also define ``other 
high Crimes and Misdemeanors.''
---------------------------------------------------------------------------
    \83\ Charles L. Black Jr. & Philip Bobbitt, Impeachment: A 
Handbook, New Edition 34 (2018).
---------------------------------------------------------------------------

                    C. Abuse, Betrayal & Corruption

    With that understanding in place, the records of the 
Constitutional Convention offer even greater clarity. They 
demonstrate that the Framers principally intended impeachment 
for three forms of Presidential wrongdoing: serious abuse of 
power, betrayal of the national interest through foreign 
entanglements, and corruption of office and elections. When the 
President engages in such misconduct, and does so in ways that 
are recognizably wrong and injurious to our political system, 
impeachment is warranted. That is proven not only by debates 
surrounding adoption of the Constitution, but also by the 
historical practice of the House in exercising the impeachment 
power.

                           1. ABUSE OF POWER

    As Justice Robert Jackson wisely observed, ``the purpose of 
the Constitution was not only to grant power, but to keep it 
from getting out of hand.'' \84\ Nowhere is that truer than in 
the Presidency. As the Framers created a formidable chief 
executive, they made clear that impeachment is justified for 
serious abuse of power. Edmund Randolph was explicit on this 
point. In explaining why the Constitution must authorize 
Presidential impeachment, he warned that ``the Executive will 
have great opportunitys of abusing his power.'' \85\ Madison, 
too, stated that impeachment is necessary because the President 
``might pervert his administration into a scheme of . . . 
oppression.'' \86\ This theme echoed through the state 
ratifying conventions. Advocating that New York ratify the 
Constitution, Hamilton set the standard for impeachment at an 
``abuse or violation of some public trust.'' \87\ In South 
Carolina, Charles Pinckney agreed that Presidents must be 
removed who ``behave amiss or betray their public trust.'' \88\ 
In Massachusetts, Reverend Samuel Stillman asked, ``With such a 
prospect [of impeachment], who will dare to abuse the powers 
vested in him by the people.'' \89\ Time and again, Americans 
who wrote and ratified the Constitution confirmed that 
Presidents may be impeached for abusing the power entrusted to 
them.
---------------------------------------------------------------------------
    \84\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 640 
(Jackson, J., concurring).
    \85\ 2 Farrand, Records of the Federal Convention, at 67.
    \86\ Id., at 65-66.
    \87\ Alexander Hamilton, Federalist No. 65, at 426.
    \88\ Berger, Impeachment, at 89.
    \89\ 2 Elliot, Debates in the Several State Conventions, at 169.
---------------------------------------------------------------------------
    There are at least as many ways to abuse power as there are 
powers vested in the President. It would thus be an exercise in 
futility to attempt a list of every conceivable abuse 
constituting ``high Crimes and Misdemeanors.'' That said, abuse 
of power was no vague notion to the Framers and their 
contemporaries. It had a very particular meaning to them. 
Impeachable abuse of power can take two basic forms: (1) the 
exercise of official power in a way that, on its very face, 
grossly exceeds the President's constitutional authority or 
violates legal limits on that authority; and (2) the exercise 
of official power to obtain an improper personal benefit, while 
ignoring or injuring the national interest. In other words, the 
President may commit an impeachable abuse of power in two 
different ways: by engaging in forbidden acts, or by engaging 
in potentially permissible acts but for forbidden reasons 
(e.g., with the corrupt motive of obtaining a personal 
political benefit).
    The first category involves conduct that is inherently and 
sharply inconsistent with the law--and that amounts to claims 
of monarchical prerogative. The generation that rebelled 
against King George III knew what absolute power looked like. 
The Framers had other ideas when they organized our government, 
and so they placed the chief executive within the bounds of 
law. That means the President may exercise only the powers 
expressly or impliedly vested in him by the Constitution, and 
he must also respect legal limits on the exercise of those 
powers (including the rights of Americans citizens). A 
President who refuses to abide these restrictions, thereby 
causing injury to society itself and engaging in recognizably 
wrongful conduct, may be subjected to impeachment for abuse of 
power.
    That principle also covers conduct grossly inconsistent 
with and subversive of the separation of powers. The Framers 
knew that ``[t]he accumulation of all powers, legislative, 
executive, and judiciary, in the same hands, . . . may justly 
be pronounced the very definition of tyranny.'' \90\ To protect 
liberty, they wrote a Constitution that creates a system of 
checks and balances within the federal government. Some of 
those rules are expressly enumerated in our founding charter; 
others are implied from its structure or from the history of 
inter-branch relations.\91\ When a President wields executive 
power in ways that usurp and destroy the prerogatives of 
Congress or the Judiciary, he exceeds the scope of his 
constitutional authority and violates limits on permissible 
conduct. Such abuses of power are therefore impeachable. That 
conclusion is further supported by the British origins of the 
phrase ``high Crimes and Misdemeanors'': Parliament repeatedly 
impeached ministers for ``subvert[ing] its conception of proper 
constitutional order in favor of the `arbitrary and tyrannical' 
government of ambitious monarchs and their grasping minions.'' 
\91\
---------------------------------------------------------------------------
    \90\ James Madison, Federalist No. 47, at 336.
    \91\ See generally National Labor Relations Board v. Noel Canning, 
et al., 573 U.S. 513 (2014).
    \92\ Bowman, High Crimes and Misdemeanors, at 109.
---------------------------------------------------------------------------
    The Supreme Court advanced similar logic in Ex Parte 
Grossman, which held the President can pardon officials who 
defy judicial orders and are held in criminal contempt of 
court.\93\ This holding raised an obvious concern: what if the 
President used ``successive pardons'' to ``deprive a court of 
power to enforce its orders''? \94\ That could fatally weaken 
the Judiciary's role under Article III of the Constitution. On 
behalf of a unanimous Court, Chief Justice William Howard 
Taft--who had previously served as President--explained that 
``exceptional cases like this . . . would suggest a resort to 
impeachment.'' \95\
---------------------------------------------------------------------------
    \93\ Ex Parte Grossman, 267 U.S. 87 (1925).
    \94\ Id., at 121.
    \95\ Id.
---------------------------------------------------------------------------
    Two impeachment inquiries have involved claims that a 
President grossly violated the Constitution's separation of 
powers. The first was in 1868, when the House impeached 
President Andrew Johnson, who had succeeded President Abraham 
Lincoln following his assassination at Ford's Theatre. There, 
the articles approved by the House charged President Johnson 
with conduct forbidden by law: in firing the Secretary of War, 
he had allegedly violated the Tenure of Office Act, which 
restricted the President's power to remove cabinet members 
during the term of the President who had appointed them.\96\ 
President Johnson was thus accused of a facial abuse of power. 
In the Senate, though, he was acquitted by a single vote 
largely because the Tenure of Office Act was viewed by many 
Senators as likely unconstitutional (a conclusion later adopted 
by the Supreme Court in an opinion by Chief Justice Taft, who 
described the Act as ``invalid'' \97\).
---------------------------------------------------------------------------
    \96\ Articles of Impeachment Exhibited By The House Of 
Representatives Against Andrew Johnson, President of the United States, 
40th Cong. (1868).
    \97\ Myers v. United States, 272 U.S. 52, 108 (1926).
---------------------------------------------------------------------------
    Just over 100 years later, this Committee accused a second 
chief executive of abusing his power. In a departure from prior 
Presidential practice--and in contravention of Article I of the 
Constitution--President Nixon had invoked specious claims of 
executive privilege to defy Congressional subpoenas served as 
part of an impeachment inquiry. His obstruction centered on 
tape recordings, papers, and memoranda relating to the 
Watergate break-in and its aftermath. As the House Judiciary 
Committee found, he had interposed ``the powers of the 
presidency against the lawful subpoenas of the House of 
Representatives, thereby assuming to himself functions and 
judgments necessary to exercise the sole power of impeachment 
vested by the Constitution in the House of Representatives. 
\98\ Put simply, President Nixon purported to control the 
exercise of powers that belonged solely to the House and not to 
him--including the power of inquiry that is vital to any 
Congressional judgments about impeachment. In so doing, 
President Nixon injured the constitutional plan: ``Unless the 
defiance of the Committee's subpoenas under these circumstances 
is considered grounds for impeachment, it is difficult to 
conceive of any President acknowledging that he obligated to 
supply the relevant evidence necessary for Congress to exercise 
its constitutional responsibility in an impeachment 
proceeding.'' \99\ The House Judiciary Committee therefore 
approved an article of impeachment against President Nixon for 
abuse of power in obstructing the House impeachment inquiry.
---------------------------------------------------------------------------
    \98\ Committee Report on Nixon Articles of Impeachment (1974), at 
188.
    \99\ Id., at 213.
---------------------------------------------------------------------------
    But that was only part of President Nixon's impeachable 
wrongdoing. The House Judiciary Committee also approved two 
additional articles of impeachment against him for abuse of 
power, one for obstruction of justice and the other for using 
Presidential power to target, harass, and surveil his political 
opponents. These articles demonstrate the second way in which a 
President can abuse power: by acting with improper motives.
    This understanding of impeachable abuse of power is rooted 
in the Constitution's text, which commands the President to 
``faithfully execute'' the law. At minimum, that duty requires 
Presidents ``to exercise their power only when it is motivated 
in the public interest rather than in their private self-
interest.'' \100\ A President can thus be removed for 
exercising power with a corrupt purpose, even if his action 
would otherwise be permissible. As Iredell explained at the 
North Carolina ratifying convention, ``the president would be 
liable to impeachments [if] he had . . . acted from some 
corrupt motive or other,'' or if he was ``willfully abusing his 
trust.'' \101\ Madison made a similar point at Virginia's 
ratifying convention. There, he observed that the President 
could be impeached for abuse of the pardon power if there are 
``grounds to believe'' he has used it to ``shelter'' persons 
with whom he is connected ``in any suspicious manner.'' \102\ 
Such a pardon would technically be within the President's 
authority under Article II of the Constitution, but it would 
rank as an impeachable abuse of power because it arose from the 
forbidden purpose of obstructing justice. To the Framers, it 
was dangerous for officials to exceed their constitutional 
power, or to transgress legal limits, but it was equally 
dangerous (perhaps more so) for officials to conceal corrupt or 
illegitimate objectives behind superficially valid acts.
---------------------------------------------------------------------------
    \100\ Kent et al., Faithful Execution, at 2120, 2179.
    \101\ 1998 Background and History of Impeachment Hearing, at 49.
    \102\ 3 Elliott, Debates in the Several State Conventions, at 497-
98.
---------------------------------------------------------------------------
    Again, President Nixon's case is instructive. After 
individuals associated with his campaign committee committed 
crimes to promote his reelection, he used the full powers of 
his office as part of a scheme to obstruct justice. Among many 
other wrongful acts, President Nixon dangled pardons to 
influence key witnesses, told a senior aide to have the CIA 
stop an FBI investigation into Watergate, meddled with Justice 
Department immunity decisions, and conveyed secret law 
enforcement information to suspects. Even if some of this 
conduct was formally within the scope of President Nixon's 
authority as head of the Executive Branch, it was undertaken 
with illegitimate motives. The House Judiciary Committee 
therefore included it within an article of impeachment charging 
him with obstruction of justice. Indeed, following President 
Nixon's resignation and the discovery of additional evidence 
concerning obstruction, all eleven members of the Committee who 
had originally voted against that article joined a statement 
affirming that ``we were prepared to vote for his impeachment 
on proposed Article I had he not resigned his office.'' \103\ 
Of course, several decades later, obstruction of justice was 
also the basis for an article of impeachment against President 
Clinton, though his conduct did not involve official acts.\104\
---------------------------------------------------------------------------
    \103\ Committee Report on Nixon Articles of Impeachment (1974), at 
361.
    \104\ In President Clinton's case, the House approved the article 
of impeachment for obstruction of justice. There was virtually no 
disagreement in those proceedings over whether obstructing justice can 
be impeachable; scholars, lawyers, and legislators on all sides of the 
dispute recognized that it can be. See Daniel J. Hemel & Eric A. 
Posner, Presidential Obstruction of Justice, 106 Cal. L. Rev 1277, 
1305-1307 (2018).
    Publicly available evidence does not suggest that the Senate's 
acquittal of President Clinton was based on the view that obstruction 
of justice is not impeachable. Rather, Senators who voted for acquittal 
appear to have concluded that some of the factual charges were not 
supported and that, even if Presidential perjury and obstruction of 
justice might in some cases justify removal, the nature and 
circumstances of the conduct at issue (including its predominantly 
private character) rendered it insufficiently grave to warrant that 
remedy.
---------------------------------------------------------------------------
    Yet obstruction of justice did not exhaust President 
Nixon's corrupt abuse of power. He was also accused of 
manipulating federal agencies to injure his opponents, aid his 
friends, gain personal political benefits, and violate the 
constitutional rights of American citizens. For instance, 
President Nixon improperly attempted to cause income tax audits 
of his perceived political adversaries; directed the FBI and 
Secret Service to engage in targeted (and unlawful) 
surveillance; and formed a secret investigative unit within the 
White House--financed with campaign contributions--that 
utilized CIA resources in its illegal covert activities. In 
explaining this additional article of impeachment, the House 
Judiciary Committee stated that President Nixon's conduct was 
``undertaken for his personal political advantage and not in 
furtherance of any valid national policy objective.'' \105\ His 
abuses of executive power were thus ``seriously incompatible 
with our system of constitutional government'' and warranted 
removal from office.\106\
---------------------------------------------------------------------------
    \105\ Committee Report on Nixon Articles of Impeachment (1974), at 
139.
    \106\ Id.
---------------------------------------------------------------------------
    With the benefit of hindsight, the House's decision to 
impeach President Johnson is best understood in a similar 
frame. Scholars now largely agree that President Johnson's 
impeachment was motivated not by violations of the Tenure of 
Office Act, but on his illegitimate use of power to undermine 
Reconstruction and subordinate African-Americans following the 
Civil War.\107\ In that period, fundamental questions about the 
nature and future of the Union stood unanswered. Congress 
therefore passed a series of laws to ``reconstruct the former 
Confederate states into political entities in which black 
Americans enjoyed constitutional protections.'' \108\ This 
program, however, faced an unyielding enemy in President 
Johnson, who declared that ``white men alone must manage the 
south.'' \109\ Convinced that political control by African-
Americans would cause a ``relapse into barbarism,'' President 
Johnson vetoed civil rights laws; when Congress overrode him, 
he refused to enforce those laws.\110\ The results were 
disastrous. As Annette Gordon-Reed writes, ``it would be 
impossible to exaggerate how devastating it was to have a man 
who affirmatively hated black people in charge of the program 
that was designed to settle the terms of their existence in 
post-Civil War America.'' \111\ Congress tried to compromise 
with the President, but to no avail. A majority of the House 
finally determined that President Johnson posed a clear and 
present danger to the Nation if allowed to remain in office.
---------------------------------------------------------------------------
    \107\ See generally Michael Les Benedict, The Impeachment and Trial 
of Andrew Johnson (1999).
    \108\ Jeffrey A. Engel, Jon Meacham, Timothy Naftali, & Peter 
Baker, Impeachment: An American History 48 (2018).
    \109\ Id. at 49.
    \110\ Id.
    \111\ See Annette Gordon-Reed, Andrew Johnson: The American 
Presidents Series: the 17th President, 1865-1869 12 (2011).
---------------------------------------------------------------------------
    Rather than directly target President Johnson's faithless 
execution of the laws, and his illegitimate motives in wielding 
power, the House resorted to charges based on the Tenure of 
Office Act. But in reality, ``the shaky claims prosecuted by 
[the House] obscured a far more compelling basis for removal: 
that Johnson's virulent use of executive power to sabotage 
Reconstruction posed a mortal threat to the nation--and to 
civil and political rights--as reconstituted after the Civil 
War . . . [T]he country was in the throes of a second founding. 
Yet Johnson abused the powers of his office and violated the 
Constitution to preserve institutions and practices that had 
nearly killed the Union. He could not be allowed to salt the 
earth as the Republic made itself anew.'' \112\ Viewed from 
that perspective, the case for impeaching President Johnson 
rested on his use of power with illegitimate motives.
---------------------------------------------------------------------------
    \112\ Tribe & Matz, To End a Presidency, at 55.
---------------------------------------------------------------------------
    Pulling this all together, the Framers repeatedly confirmed 
that Presidents can be impeached for grave abuse of power. 
Where the President engages in acts forbidden by law, or acts 
with an improper motive, he has committed an abuse of power 
under the Constitution. Where those abuses inflict substantial 
harm on our political system and are recognizably wrong, they 
warrant his impeachment and removal.\113\
---------------------------------------------------------------------------
    \113\ In President Clinton's case, it was debated whether 
Presidents can be impeached for acts that do not involve their official 
powers. See Constitutional Grounds for Presidential Impeachment: Modern 
Precedents (1998), at 6-7; Minority Staff of H. Comm. on the Judiciary, 
105th Cong., Constitutional Grounds for Presidential Impeachment: 
Modern Precedents Minority Views 3-4, 8-9, 13-16 (Comm. Print 1998. 
Many scholars have taken the view that such private conduct may be 
impeachable in extraordinary circumstances, such as where it renders 
the President unviable as the leader of a democratic nation committed 
to the rule of law. See, e.g., Tribe & Matz, To End A Presidency, at 
10, 51; Black & Bobbitt, Impeachment, at 35. It also bears mention that 
some authority supports the view that Presidents might be subject to 
impeachment not for abusing their official powers, but by failing to 
use them and thus engaging in gross dereliction of official duty. See, 
e.g., Tribe & Matz, To End A Presidency, at 50; Akhil Reed Amar, 
America's Constitution: A Biography 200 (2006); Black & Bobbitt, 
Impeachment, at 34.
---------------------------------------------------------------------------

   2. BETRAYAL OF THE NATIONAL INTEREST THROUGH FOREIGN ENTANGLEMENTS

    It is not a coincidence that the Framers started with 
``Treason'' in defining impeachable offenses. Betrayal was no 
abstraction to them. They had recently waged a war for 
independence in which some of their fellow citizens remained 
loyal to the enemy. The infamous traitor, Benedict Arnold, had 
defected to Britain less than a decade earlier. As they looked 
outward, the Framers saw kings scheming for power, promising 
fabulous wealth to spies and deserters. The United States could 
be enmeshed in such conspiracies: ``Foreign powers,'' warned 
Elbridge Gerry, ``will intermeddle in our affairs, and spare no 
expense to influence them.'' \114\ The young Republic might not 
survive a President who schemed with other nations, entangling 
himself in secret deals that harmed our democracy.
---------------------------------------------------------------------------
    \114\ Wydra & Gorod, The First Magistrate in Foreign Pay.
---------------------------------------------------------------------------
    That reality loomed over the impeachment debate in 
Philadelphia. Explaining why the Constitution required an 
impeachment option, Madison argued that a President ``might 
betray his trust to foreign powers.'' \115\ Gouverneur Morris, 
who had initially opposed allowing impeachment, was convinced: 
``no one would say that we ought to expose ourselves to the 
danger of seeing the first Magistrate in foreign pay, without 
being able to guard against it by displacing him.'' \116\ In 
the same vein, Franklin noted ``the case of the Prince of 
Orange during the late war,'' in which a Dutch prince reneged 
on a military treaty with France.\117\ Because there was no 
impeachment power or other method of inquiry, the prince's 
motives were secret and untested, drastically destabilizing 
Dutch politics and giving ``birth to the most violent 
animosities and contentions.'' \118\
---------------------------------------------------------------------------
    \115\ 2 Farrand, Records of the Federal Convention, at 65.
    \116\ Id., at 68.
    \117\ Id., at 67-68.
    \118\ Id.
---------------------------------------------------------------------------
    Impeachment for betrayal of the Nation's interest--and 
especially for betrayal of national security and foreign 
policy--was hardly exotic to the Framers. ``The history of 
impeachment over the centuries shows an abiding awareness of 
how vulnerable the practice of foreign policy is to the 
misconduct of its makers.'' \119\ Indeed, ``impeachments on 
this ground were a constant of parliamentary practice,'' and 
``a string of British ministers and royal advisors were 
impeached for using their official powers contrary to the 
country's vital foreign interests.'' \120\ Although the Framers 
did not intend impeachment for genuine, good faith 
disagreements between the President and Congress over matters 
of diplomacy, they were explicit that betrayal of the Nation 
through plots with foreign powers justified removal.
---------------------------------------------------------------------------
    \119\ Frank O. Bowman, III, Foreign Policy Has Always Been at the 
Heart of Impeachment, Foreign Affairs (Nov 2019).
    \120\ Bowman, High Crimes & Misdemeanors, at 48, 106.
---------------------------------------------------------------------------
    In particular, foreign interference in the American 
political system was among the gravest dangers feared by the 
Founders of our Nation and the Framers of our Constitution. For 
example, in a letter to Thomas Jefferson, John Adams wrote: 
``You are apprehensive of foreign Interference, Intrigue, 
Influence. So am I.--But, as often as Elections happen, the 
danger of foreign Influence recurs.'' \121\ And in Federalist 
No. 68, Hamilton cautioned that the ``most deadly adversaries 
of republican government'' may come ``chiefly from the desire 
in foreign powers to gain an improper ascendant in our 
councils.\122\
---------------------------------------------------------------------------
    \121\ To Thomas Jefferson from John Adams, 6 December 1787, 
National Archives, Founders Online.
    \122\ Alexander Hamilton, Federalist No. 68, at 441.
---------------------------------------------------------------------------
    The President's important role in foreign affairs does not 
disable the House from evaluating whether he committed 
impeachable offenses in that field. This conclusion follows 
from the Impeachment Clause itself but is also supported by the 
Constitution's many grants of power to Congress addressing 
foreign affairs. Congress is empowered to ``declare War,'' 
``regulate Commerce with foreign Nations,'' ``establish an 
uniform Rule of Naturalization,'' ``define and punish Piracies 
and Felonies committed on the high Seas, and Offences against 
the Law of Nations,'' ``grant Letters of Marque and Reprisal,'' 
and ``make Rules for the Government and Regulation of the land 
and naval Forces.'' \123\ Congress also has the power to set 
policy, define law, undertake oversight and investigations, 
create executive departments, and authorize government funding 
for a slew of national security matters.\124\ In addition, the 
President cannot make a treaty or appoint an ambassador without 
the approval of the Senate.\125\ In those respects and many 
others, constitutional authority over the ``conduct of the 
foreign relations of our Government'' is shared between ``the 
Executive and Legislative [branches].'' \126\ Stated simply, 
``the Executive is not free from the ordinary controls and 
checks of Congress merely because foreign affairs are at 
issue.'' \127\ In these realms, as in many others, the 
Constitution ``enjoins upon its branches separateness but 
interdependence, autonomy but reciprocity.'' \128\
---------------------------------------------------------------------------
    \123\ U.S. Const., Art. I, Sec. 8.
    \124\ See Lawrence Friedman & Victor Hansen, There Is No 
Constitutional Impediment to an Impeachment Inquiry that Concerns 
National Security, Just Security, Oct. 1, 2019.
    \125\ U.S. Const., Art. II, Sec. 2, cl. 2.
    \126\ Medellin v. Texas, 552 U.S. 491, 511 (2008).
    \127\ Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015).
    \128\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 
(1952) (Jackson, J., concurring).
---------------------------------------------------------------------------
    Accordingly, where the President uses his foreign affairs 
power in ways that betray the national interest for his own 
benefit, or harm national security for equally corrupt reasons, 
he is subject to impeachment by the House. Any claims to the 
contrary would horrify the Framers. A President who perverts 
his role as chief diplomat to serve private rather than public 
ends has unquestionably engaged in ``high Crimes and 
Misdemeanors''--especially if he invited, rather than opposed, 
foreign interference in our politics.

                  3. CORRUPTION OF OFFICE OR ELECTIONS

    As should now be clear, the Framers feared corruption most 
of all, in its many and shifting manifestations. It was 
corruption that led to abuse of power and betrayal of the 
Nation. It was corruption that ruined empires, debased Britain, 
and menaced American freedom. The Framers saw no shortage of 
threats to the Republic, and fought valiantly to guard against 
them, ``but the big fear underlying all the small fears was 
whether they'd be able to control corruption.'' \129\ This was 
not just a matter of thwarting bribes and extortion; it was a 
far greater challenge. The Framers aimed to build a country in 
which officials would not use public power for personal 
benefits, disregarding the public good in pursuit of their own 
advancement. This virtuous principle applied with special force 
to the Presidency. As Madison emphasized, because the 
Presidency ``was to be administered by a single man,'' his 
corruption ``might be fatal to the Republic.'' \130\
---------------------------------------------------------------------------
    \129\ Teachout, Corruption in America, at 57.
    \130\ Jonathan Elliot ed., Debates on the Adoption of the Federal 
Constitution in the Convention Held at Philadelphia, in 1787 341 (1861) 
(hereinafter ``Debates on the Adoption of the Federal Constitution'').
---------------------------------------------------------------------------
    The Framers therefore sought to ensure that ``corruption 
was more effectually guarded against, in the manner this 
government was constituted, than in any other that had ever 
been formed.'' \131\ Impeachment was central to that plan. At 
one point the Convention even provisionally adopted ``treason, 
bribery, or corruption'' as the standard for impeaching a 
President. And no fewer than four delegates--Morris, Madison, 
Mason, and Randolph--listed corruption as a reason why 
Presidents must be subject to removal. That understanding 
followed from history: ``One invariable theme in [centuries] of 
Anglo-American impeachment practice has been corruption.'' 
\132\ Treason posed a threat of swift national extinction, but 
the steady rot of corruption could destroy us from within. 
Presidents who succumbed to that instinct, serving themselves 
at the Nation's expense, forfeited the public trust.
---------------------------------------------------------------------------
    \131\ 4 Elliot, Debates in the Several State Conventions, at 302.
    \132\ Bowman, High Crimes & Misdemeanors, at 277.
---------------------------------------------------------------------------
    Impeachment was seen as especially necessary for 
Presidential conduct corrupting our system of political self-
government. That concern arose in two contexts: the risk that 
Presidents would be swayed to prioritize foreign over domestic 
interests, and the risk that they would place their personal 
interest in re-election above our abiding commitment to 
democracy. The need for impeachment peaks where both threats 
converge at once.
    First was the risk that foreign royals would use wealth, 
power, and titles to seduce American officials. This was not a 
hypothetical problem. Just a few years earlier, and consistent 
with European custom, King Louis XVI of France had bestowed on 
Benjamin Franklin (in his capacity as American emissary) a 
snuff box decorated with 408 diamonds ``of a beautiful water.'' 
\133\ Magnificent gifts like this one could unconsciously shape 
how American officials carried out their duties. To guard 
against that peril, the Framers adopted the Foreign Emoluments 
Clause, which prohibits Presidents--among other federal 
officials--from accepting ``any present, Emolument, Office, or 
Title, of any kind whatever, from any King, Prince, or foreign 
State'' unless Congress affirmatively consents.\134\
---------------------------------------------------------------------------
    \133\ Teachout, Corruption in America, at 1.
    \134\ U.S. Const., Art. I, Sec. 9, cl. 8.
---------------------------------------------------------------------------
    The theory of the Foreign Emoluments Clause, based in 
history and the Framers' lived experience, ``is that a federal 
officeholder who receives something of value from a foreign 
power can be imperceptibly induced to compromise what the 
Constitution insists be his exclusive loyalty: the best 
interest of the United States of America.'' \135\ Rather than 
scrutinize every exchange for potential bribery, the Framers 
simply banned officials from receiving anything of value from 
foreign powers. Although this rule sweeps broadly, the Framers 
deemed it central to American self-governance. Speaking in 
Philadelphia, Charles Pinckney ``urged the necessity of 
preserving foreign ministers, and other officers of the United 
States, independent of external influence.'' \136\ At 
Virginia's convention, Randolph elaborated that ``[i]t was 
thought proper, in order to exclude corruption and foreign 
influence, to prohibit any one in office from receiving or 
holding any emoluments from foreign states.'' \137\ Randolph 
added that if the President violated the Clause, ``he may be 
impeached.'' \138\
---------------------------------------------------------------------------
    \135\ Norman L. Eisen, Richard Painter & Laurence H. Tribe, The 
Emoluments Clause: Its Text, Meaning, And Application To Donald J. 
Trump, Brookings, Dec. 16, 2016.
    \136\ Elliot, Debates on the Adoption of the Federal Constitution 
at 467.
    \137\ 3 Elliot, Debates in the Several State Conventions, at 465.
    \138\ Id., at 201.
---------------------------------------------------------------------------
    The Framers also anticipated impeachment if a President 
placed his own interest in retaining power above the national 
interest in free and fair elections. Several delegates were 
explicit on this point when the topic arose at the 
Constitutional Convention. By then, the Framers had created the 
Electoral College. They were ``satisfied with it as a tool for 
picking presidents but feared that individual electors might be 
intimidated or corrupted.'' \139\ Impeachment was their answer. 
William Davie led off the discussion, warning that a President 
who abused his office might seek to escape accountability by 
interfering with elections, sparing ``no efforts or means 
whatever to get himself re-elected.'' \140\ Rendering the 
President ``impeachable whilst in office'' was thus ``an 
essential security for the good behaviour of the Executive.'' 
\141\ The Constitution thereby ensured that corrupt Presidents 
could not avoid justice by subverting elections and remaining 
in office.
---------------------------------------------------------------------------
    \139\ Tribe & Matz, To End A Presidency, at 4.
    \140\ 2 Farrand, Records of the Federal Convention, at 64.
    \141\ Id.
---------------------------------------------------------------------------
    George Mason built on Davie's position, directing attention 
to the Electoral College: ``One objection agst. Electors was 
the danger of their being corrupted by the Candidates; & this 
furnished a peculiar reason in favor of impeachments whilst in 
office. Shall the man who has practised corruption & by that 
means procured his appointment in the first instance, be 
suffered to escape punishment, by repeating his guilt?'' \142\ 
Mason's concern was straightforward. He feared that Presidents 
would win election by improperly influencing members of the 
Electoral College (e.g., by offering them bribes). If evidence 
of such wrongdoing came to light, it would be unthinkable to 
leave the President in office--especially given that he might 
seek to avoid punishment by corrupting the next election. In 
that circumstance, Mason concluded, the President should face 
impeachment and removal under the Constitution. Notably, Mason 
was not alone in this view. Speaking just a short while later, 
Gouverneur Morris emphatically agreed that ``the Executive 
ought therefore to be impeachable for . . . Corrupting his 
electors.'' \143\ Although not articulated expressly, it is 
reasonable to infer that the concerns raised by Davie, Mason, 
and Morris were especially salient because the Constitution--
until ratification of the Twenty-Second Amendment in 1951--did 
not limit the number of terms a President could serve in 
office.\144\ A President who twisted or sabotaged the electoral 
process could rule for life, much like a king.
---------------------------------------------------------------------------
    \142\ Id., at 65.
    \143\ Id., at 69.
    \144\ U.S. Const. Amend. XXII.
---------------------------------------------------------------------------
    This commitment to impeaching Presidents who corruptly 
interfered with elections was anchored in lessons from British 
rule. As historian Gordon Wood writes, ``[t]hroughout the 
eighteenth century the Crown had slyly avoided the blunt and 
clumsy instrument of prerogative, and instead had resorted to 
influencing the electoral process and the representatives in 
Parliament in order to gain its treacherous ends.'' \145\ In 
his influential Second Treatise on Civil Government, John Locke 
blasted such manipulation, warning that it serves to ``cut up 
the government by the roots, and poison the very fountain of 
public security.'' \146\ Channeling Locke, American 
revolutionaries vehemently objected to King George III's 
electoral shenanigans; ultimately, they listed several 
election-related charges in the Declaration of Independence. 
Those who wrote our Constitution knew, and feared, that the 
chief executive could threaten their plan of government by 
corrupting elections.
---------------------------------------------------------------------------
    \145\ Wood, The Creation of the American Republic, at 33.
    \146\ John Locke, Second Treatise of Government 112 (C.B. 
Macpherson ed. 1980).
---------------------------------------------------------------------------
    The true nature of this threat is its rejection of 
government by ``We the People,'' who would ``ordain and 
establish'' the Constitution.\147\ The beating heart of the 
Framers' project was a commitment to popular sovereignty. At a 
time when ``democratic self- government existed almost nowhere 
on earth,'' \148\ the Framers imagined a society ``where the 
true principles of representation are understood and practised, 
and where all authority flows from, and returns at stated 
periods to, the people.'' \149\ That would be possible only if 
``those entrusted with [power] should be kept in dependence on 
the people.'' \150\ This is why the President, and Members of 
Congress, must stand before the public for re-election on fixed 
terms. It is through free and fair elections that the American 
people protect their right to self-government, a right 
unforgivably denied to many as the Constitution was ratified in 
1788 but now extended to all American citizens over the age of 
18. When the President concludes that elections threaten his 
continued grasp on power, and therefore seeks to corrupt or 
interfere with them, he denies the very premise of our 
constitutional system. The American people choose their 
leaders; a President who wields power to destroy opponents or 
manipulate elections is a President who rejects democracy 
itself.
---------------------------------------------------------------------------
    \147\ U.S. Const. Pmbl.
    \148\ Amar, America's Constitution, at 8.
    \149\ 4 Elliot, Debates in the Several State Conventions, at 331; 
see also James Madison, Federalist No. 14.
    \150\ James Madison, Federalist No. 37, at 268.
---------------------------------------------------------------------------
    In sum, the Framers discussed the risk that Presidents 
would improperly conspire with foreign nations; they also 
discussed the risk that Presidents would place their interest 
in retaining power above the integrity of our elections. Both 
offenses, in their view, called for impeachment. That is doubly 
true where a President conspires with a foreign power to 
manipulate elections to his benefit--conduct that betrays 
American self-governance and joins the Framers' worst 
nightmares into a single impeachable offense.\151\
---------------------------------------------------------------------------
    \151\ 151 In fact, the Framers were so concerned about improper 
foreign influence in the Presidency that they restricted that position 
to natural born citizens. U.S. Const. Art. II, Sec. 1. As one 
commentator observed, ``Considering the greatness of the trust, and 
that this department is the ultimately efficient power in government, 
these restrictions will not appear altogether useless or unimportant. 
As the President is required to be a native citizen of the United 
States, ambitious foreigners cannot intrigue for the office, and the 
qualification of birth cuts off all those inducements from abroad to 
corruption, negotiation, and war, which have frequently and fatally 
harassed the elective monarchies of Germany and Poland, as well as the 
pontificate at Rome.'' 1 James Kent, Commentaries on American Law 255 
(1826).
---------------------------------------------------------------------------

                             D. Conclusion

    Writing in 1833, Justice Joseph Story remarked that 
impeachable offenses ``are of so various and complex a 
character'' that it would be ``almost absurd'' to attempt a 
comprehensive list.\152\ Consistent with Justice Story's 
wisdom, ``the House has never, in any impeachment inquiry or 
proceeding, adopted either a comprehensive definition of `high 
Crimes and Misdemeanors' or a catalog of offenses that are 
impeachable.'' \153\ Rather than engage in abstract, advisory 
or hypothetical debates about the precise nature of conduct 
that calls for the exercise of its constitutional powers, the 
House has awaited a ``full development of the facts.'' \154\ 
Only then has it weighed articles of impeachment.
---------------------------------------------------------------------------
    \152\ 2 Story, Commentaries, at 264.
    \153\ 1998 Background and History of Impeachment Hearing, at 2.
    \154\ Constitutional Grounds for Presidential Impeachment (1974), 
at 2.
---------------------------------------------------------------------------
    In making such judgments, however, each Member of the House 
has sworn an oath to follow the Constitution, which sets forth 
a legal standard governing when Presidential conduct warrants 
impeachment. That standard has three main parts.
    First, as Mason explained just before proposing ``high 
Crimes and Misdemeanors'' as the basis for impeachment, the 
President's conduct must constitute a ``great and dangerous 
offense'' against the Nation. The Constitution itself offers us 
two examples: ``Treason'' and ``Bribery.'' In identifying 
``other'' offenses of the same kind, we are guided by 
Parliamentary and early American practice, records from the 
Constitutional Convention and state ratifying conventions, and 
insights from the Constitution's text and structure. These 
sources prove that ``high Crimes and Misdemeanors'' involve 
misconduct that subverts and injures constitutional governance. 
Core instances of such misconduct by the President are serious 
abuse of power, betrayal of the national interest through 
foreign entanglements, and corruption of office and elections. 
The Framers included an impeachment power in the Constitution 
specifically to protect the Nation against these forms of 
wrongdoing.
    Past practice of the House further illuminates the idea of 
a ``great and dangerous offense.'' President Nixon's case is 
most helpful. There, as explained above, the House Judiciary 
Committee approved articles of impeachment on three grounds: 
(1) obstruction of an ongoing law enforcement investigation 
into unlawful acts by his presidential re-election campaign; 
(2) abuse of power in targeting his perceived political 
opponents; and (3) improper obstruction of a Congressional 
impeachment inquiry into his obstruction of justice and abuse 
of power. These articles of impeachment, moreover, were not 
confined to discrete acts. Each of them accused President Nixon 
of undertaking a course of conduct or scheme, and each of them 
supported that accusation with a list of discrete acts alleged 
to comprise and demonstrate the overarching impeachable 
offense.\155\ Thus, where a President engages in a course of 
conduct involving serious abuse of power, betrayal of the 
national interest through foreign entanglements, or corruption 
of office and elections, impeachment is justified.
---------------------------------------------------------------------------
    \155\ Consistent with that understanding, one scholar remarks that 
it is the ``repetition, pattern, [and] coherence'' of official 
misconduct that ``tend to establish the requisite degree of seriousness 
warranting the removal of a president from office.'' John Labovitz, 
Presidential Impeachment 129-130 (1978); see also, e.g., McGinnis, 
Impeachment, at 659 (``[I]t has been well understood that the 
official's course of conduct as a whole should be the subject of 
judgment.''); Debate On Articles Of Impeachment: Hearing before the H. 
Comm. On the Judiciary, 93rd Cong. (1974) (hereinafter ``Debate on 
Nixon Articles of Impeachment (1974)'') (addressing the issue 
repeatedly from July 24, 1974 to July 30, 1974).
---------------------------------------------------------------------------
    Second, impeachable offenses involve wrongdoing that reveal 
the President as a continuing threat to the constitutional 
system if he is allowed to remain in a position of political 
power. As Iredell remarked, impeachment does not exist for a 
``mistake.'' \156\ That is why the Framers rejected 
``maladministration'' as a basis for impeachment, and it is why 
``high Crimes and Misdemeanors'' are not simply unwise, 
unpopular, or unconsidered acts. Like ``Treason'' and 
``Bribery,'' they reflect decisions by the President to embark 
on a course of conduct' or to act with motives--inconsistent 
with our plan of government. Where the President makes such a 
decision, Congress may remove him to protect the Constitution, 
especially if there is reason to think that he will commit 
additional offenses if left in office (e.g., statements by the 
President that he did nothing wrong and would do it all again). 
This forward-looking perspective follows from the limited 
consequences of impeachment. The question is not whether to 
punish the President; that decision is left to the criminal 
justice system. Instead, the ultimate question is whether to 
bring an early end to his four-year electoral term. In his 
analysis of the Constitution, Alexis de Tocqueville thus saw 
impeachment as ``a preventive measure'' which exists ``to 
deprive the ill-disposed citizen of an authority which he has 
used amiss, and to prevent him from ever acquiring it again.'' 
\157\ That is particularly true when the President injures the 
Nation's interests as part of a scheme to obtain personal 
benefits; someone so corrupt will again act corruptly.
---------------------------------------------------------------------------
    \156\ Sunstein, Impeachment, at 59.
    \157\ Alexis de Tocqueville, Democracy in America and Two Essays on 
America 124-30 (Gerald E. Bevan, tr., 2003).
---------------------------------------------------------------------------
    Finally, ``high Crimes and Misdemeanors'' involve conduct 
that is recognizably wrong to a reasonable person. This 
principle resolves a potential tension in the Constitution. On 
the one hand, the Framers adopted a standard for impeachment 
that could stand the test of time. On the other hand, the 
structure of the Constitution--including its prohibition on 
bills of attainder and the Ex Post Facto Clause--implies that 
impeachable offenses should not come as a surprise.\158\ 
Impeachment is aimed at Presidents who believe they are above 
the law, and who believe their own interests transcend those of 
the country and Constitution. Of course, as President Nixon 
proved, Presidents who have committed impeachable offenses may 
seek to confuse the public through manufactured ambiguity and 
crafty pretexts. That does not shield their misconduct from 
impeachment. The principle of a plainly wrong act is not about 
academic technicalities; it simply focuses impeachment on 
conduct that any person of honor would recognize as wrong under 
the Constitution.
---------------------------------------------------------------------------
    \158\ See Black & Bobbitt, Impeachment, at 29-30.
---------------------------------------------------------------------------
    To summarize: Like ``Treason'' and ``Bribery,'' and 
consistent with the offenses historically considered by 
Parliament to warrant impeachment, ``high Crimes and 
Misdemeanors'' are great and dangerous offenses that injure the 
constitutional system. Such offenses are defined mainly by 
abuse of power, betrayal of the national interest through 
foreign entanglements, and corruption of office and elections. 
In addition, impeachable offenses arise from wrongdoing that 
reveals the President as a continuing threat to the 
constitutional system if allowed to remain in a position of 
power. Finally, they involve conduct that reasonable officials 
would consider to be wrong in our democracy.
    Within these parameters, and guided by fidelity to the 
Constitution, the House must judge whether the President's 
misconduct is grave enough to require impeachment. That step 
must never be taken lightly. It is a momentous act, justified 
only when the President's full course of conduct, assessed 
without favor or prejudice, is ``seriously incompatible with 
either the constitutional form and principles of our government 
or the proper performance of constitutional duties of the 
presidential office.'' \159\ When that standard is met, 
however, the Constitution calls the House to action. In such 
cases, a decision not to impeach has grave consequences and 
sets an ominous precedent. As Representative William Cohen 
remarked in President Nixon's case, ``It also has been said to 
me that even if Mr. Nixon did commit these offenses, every 
other President . . . has engaged in some of the same conduct, 
at least to some degree, but the answer I think is that 
democracy, that solid rock of our system, may be eroded away by 
degree and its survival will be determined by the degree to 
which we will tolerate those silent and subtle subversions that 
absorb it slowly into the rule of a few.'' \160\
---------------------------------------------------------------------------
    \159\ Constitutional Grounds for Presidential Impeachment (1974), 
at 27.
    \160\ Debate on Nixon Articles of Impeachment (1974), at 79.
---------------------------------------------------------------------------

                        V. The Criminality Issue

    It is occasionally suggested that Presidents can be 
impeached only if they have committed crimes. That position was 
rejected in President Nixon's case, and then rejected again in 
President Clinton's, and should be rejected once more.\161\
---------------------------------------------------------------------------
    \161\ Report of the Committee on the Judiciary, House of 
Representatives, Together with Additional, Minority, and Dissenting 
Views to Accompany H. Res. 611, Impeachment of William Jefferson 
Clinton, President of the United States, H.R. Rep. No. 105-830 (1998) 
(hereinafter ``Committee Report on Clinton Articles of Impeachment 
(1998)''), at 64 (``Although, the actions of President Clinton do not 
have to rise to the level of violating the federal statute regarding 
obstruction of justice in order to justify impeachment.''). 
Constitutional Grounds for Presidential Impeachment (1974), at 22-26.
---------------------------------------------------------------------------
    Offenses against the Constitution are different in kind 
than offenses against the criminal code. Some crimes, like 
jaywalking, are not impeachable. Some impeachable offenses, 
like abuse of power, are not crimes. Some misconduct may offend 
both the Constitution and the criminal law. Impeachment and 
criminality must therefore be assessed separately--even though 
the commission of crimes may strengthen a case for removal.
    A ``great preponderance of authority'' confirms that 
impeachable offenses are ``not confined to criminal conduct.'' 
\162\ This authority includes nearly every legal scholar to 
have studied the issue, as well as multiple Supreme Court 
justices who addressed it in public remarks.\163\ More 
important, the House itself has long treated ``high Crimes and 
Misdemeanors'' as distinct from crimes subject to indictment. 
That understanding follows from the Constitution's history, 
text, and structure, and reflects the absurdities and practical 
difficulties that would result were the impeachment power 
confined to indictable crimes.
---------------------------------------------------------------------------
    \162\ Berger, Impeachment, at 58.
    \163\ See, e.g., Black & Bobbitt, Impeachment, at 33-37, 559-565; 
Bowman, High Crimes and Misdemeanors, at 244-252; Tribe & Matz, To End 
A Presidency, at 43-53; Sunstein, Impeachment, at 117-134; Amar, 
America's Constitution, at 200-20; Charles J. Cooper, A Perjurer in the 
White House?: The Constitutional Case for Perjury and Obstruction of 
Justice as High Crimes and Misdemeanors, 22 Harv. J. L. & Pub. Pol'y 
619, 620 (1998-1999); Michael J. Gerhardt, The Federal Impeachment 
Process: A Constitutional and Historical Analysis 105-113 (3rd ed. 
2019); Berger, Impeachment, at 58 (collecting sources); Merrill Otis, A 
Proposed Tribunal: Is It Constitutional?, 7 Kan. City. L. Rev. 3, 22 
(1938) (quoting Chief Justice Taft); Charles E. Hughes, The Supreme 
Court of the United States 19 (1928) (Chief Justice Hughes); 2 Henry 
Adams, History of the United States of America 223 (1962).
---------------------------------------------------------------------------

                               A. History

    ``If there is one point established by . . . Anglo-American 
impeachment practice, it is that the phrase `high Crimes and 
Misdemeanors' is not limited to indictable crimes.'' \164\ As 
recounted above, impeachment was conceived in Parliament as a 
method for controlling abusive royal ministers. Consistent with 
that purpose, it was not confined to accusations of criminal 
wrongdoing. Instead, it was applied to ``many offenses, not 
easily definable by law,'' such as abuse of power, betrayal of 
national security, corruption, neglect of duty, and violating 
Parliament's constitutional prerogatives.\165\ Many officials 
were impeached for non-criminal wrongs against the British 
system of government; notable examples include the Duke of 
Buckingham (1626), the Earl of Strafford (1640), the Lord Mayor 
of London (1642), the Earl of Orford and others (1701), and 
Governor General Warren Hastings (1787).\166\ Across centuries 
of use, the phrase ``high Crimes and Misdemeanors'' thus 
assumed a ``special historical meaning different from the 
ordinary meaning of the terms `crimes' and `misdemeanors.' '' 
\167\ It became a term of art confined to impeachments, without 
``relation to whether an indictment would lie in the particular 
circumstances.'' \168\
---------------------------------------------------------------------------
    \164\ Bowman, High Crimes and Misdemeanors, at 44.
    \165\ 2 Story, Commentaries, at 268.
    \166\ See Bowman, High Crimes and Misdemeanors, at 44-47.
    \167\ Constitutional Grounds for Presidential Impeachment (1974), 
at 22.
    \168\ Berger, Impeachment, at 62.
---------------------------------------------------------------------------
    That understanding extended to North America. Here, the 
impeachment process was used to address diverse misconduct by 
public officials, ranging from abuse of power and corruption to 
bribery and betrayal of the revolutionary cause.\169\ As one 
scholar reports, ``American colonists before the Revolution, 
and American states after the Revolution but before 1787, all 
impeached officials for non-criminal conduct.'' \170\
---------------------------------------------------------------------------
    \169\ Hoffer & Hull, Impeachment in America, at 1-95.
    \170\ Bowman, High Crimes and Misdemeanors, at 244.
---------------------------------------------------------------------------
    At the Constitutional Convention itself, no delegate linked 
impeachment to the technicalities of criminal law. On the 
contrary, the Framers invoked an array of broad, adaptable 
terms as grounds for removal--and when the standard was 
temporarily narrowed to ``treason, or bribery,'' Mason objected 
that it must reach ``great and dangerous'' offenses against the 
Constitution. Here he cited Burke's call to impeach Hastings, 
whose acts were not crimes, but instead violated ``those 
eternal laws of justice, which are our rule and our 
birthright.'' \171\ To the Framers, impeachment was about abuse 
of power, betrayal of nation, and corruption of office and 
elections. It was meant to guard against these threats in every 
manifestation--known and unknown--that might someday afflict 
the Republic.
---------------------------------------------------------------------------
    \171\ Edmund Burke, Reflections on the Revolution in France and 
Other Writings 409 (2015).
---------------------------------------------------------------------------
    That view appeared repeatedly in the state ratifying 
debates. Delegates opined that the President could be impeached 
if he ``deviates from his duty'' or ``dare[s] to abuse the 
power vested in him by the people.'' \172\ In North Carolina, 
Iredell noted that ``the person convicted [in an impeachment 
proceeding] is further liable to a trial at common law, and may 
receive such common-law punishment . . . if it be punishable by 
that law'' (emphasis added).\173\ Similarly, in Virginia, 
George Nicholas declared that the President ``will be 
absolutely disqualified [by impeachment] to hold any place of 
profit, honor, or trust, and liable to further punishment if he 
has committed such high crimes as are punishable at common 
law'' (emphasis added).\174\ The premise underlying this 
statement--and Iredell's--is that some Presidential ``high 
Crimes and Misdemeanors'' were not punishable by common law.
---------------------------------------------------------------------------
    \172\ Quoted in Michael J. Gerhardt, Impeachment: What Everyone 
Needs to Know 60 (2018).
    \173\ Constitutional Grounds for Presidential Impeachment (1974), 
at 23.
    \174\ Id.
---------------------------------------------------------------------------
    Leading minds echoed that position through the Nation's 
early years. In Federalist No. 65, Hamilton argued that 
impeachable offenses are defined by ``the abuse or violation of 
some public trust.'' \175\ In that sense, he reasoned, ``they 
are of a nature which may with peculiar propriety be 
denominated POLITICAL, as they relate chiefly to injuries done 
immediately to the society itself.'' \176\ A few years later, 
Constitutional Convention delegate James Wilson reiterated 
Hamilton's point: ``Impeachments, and offences and offenders 
impeachable, come not . . . within the sphere of ordinary 
jurisprudence. They are founded on different principles, are 
governed by different maxims, and are directed to different 
objects.'' \177\ Writing in 1829, William Rawle described 
impeachment as reserved for ``men whose treachery to their 
country might be productive of the most serious disasters.'' 
\178\ Four years later, Justice Story emphasized that 
impeachable offenses ordinarily ``must be examined upon very 
broad and comprehensive principles of public policy and duty.'' 
\179\
---------------------------------------------------------------------------
    \175\ Alexander Hamilton, Federalist No. 65, at 426.
    \176\ Id.
    \177\ James Wilson, Collected Works of James Wilson 736 (Kermit L. 
Hall and Mark David Hall ed. 2007).
    \178\ William Rawle, A View of the Constitution of the United 
States of America 218 (1829).
    \179\ 2 Story, Commentaries, at 234.
---------------------------------------------------------------------------
    The American experience with impeachment confirms that 
lesson. A strong majority of the impeachments voted by the 
House since 1789 have included ``one or more allegations that 
did not charge a violation of criminal law.'' \180\ Several 
officials, moreover, have subsequently been convicted on non-
criminal articles of impeachment. For example, Judge Robert 
Archbald was removed in 1912 for non-criminal speculation in 
coal properties, and Judge Halsted Ritter was removed in 1936 
for the non-criminal offense of bringing his court ``into 
scandal and disrepute.'' \181\ As House Judiciary Committee 
Chairman Hatton Sumners stated explicitly during Judge Ritter's 
case, ``We do not assume the responsibility . . . of proving 
that the respondent is guilty of a crime as that term is known 
to criminal jurisprudence.'' \182\ The House has also applied 
that principle in Presidential impeachments. Although President 
Nixon resigned before the House could consider the articles of 
impeachment against him, the Judiciary Committee's allegations 
encompassed many non-criminal acts.\183\ And in President 
Clinton's case, the Judiciary Committee report accompanying 
articles of impeachment to the House floor stated that ``the 
actions of President Clinton do not have to rise to the level 
of violating the federal statute regarding obstruction of 
justice in order to justify impeachment.'' \184\
---------------------------------------------------------------------------
    \180\ Constitutional Grounds for Presidential Impeachment (1974), 
at 24.
    \181\ Report of the Committee on the Judiciary, Robert W. Archbald, 
Judge of the United States Commerce Court, H.R. Rep. No. 62-946 (1912); 
H. Res. 422, 74th Cong. (1936) (enacted).
    \182\ Berger, Impeachment, at 57.
    \183\ See generally Committee Report on Nixon Articles of 
Impeachment (1974).
    \184\ Committee Report on Clinton Articles of Impeachment (1998), 
at 66.
---------------------------------------------------------------------------
    History thus affords exceptionally clear and consistent 
evidence that impeachable ``high Crimes and Misdemeanors'' are 
not limited to violations of the criminal code.

                  B. Constitutional Text and Structure

    That historical conclusion is bolstered by the text and 
structure of the Constitution. Starting with the text, we must 
assign weight to use of the word ``high.'' That is true not 
only because ``high Crimes and Misdemeanors'' was a term of art 
with its own history, but also because ``high'' connotes an 
offense against the State itself. Thus, ``high'' treason in 
Britain was an offense against the Crown, whereas ``petit'' 
treason was the betrayal of a superior by a subordinate. The 
Framers were aware of this when they incorporated ``high'' as a 
limitation on impeachable offenses, signifying only 
constitutional wrongs.
    That choice is particularly noteworthy because the Framers 
elsewhere referred to ``crimes,'' ``offenses,'' and 
``punishment'' without using this modifier--and so we know 
``the Framers knew how to denote ordinary crimes when they 
wanted to do so.'' \185\ For example, the Fifth Amendment 
requires a grand jury indictment in cases of a ``capital, or 
otherwise infamous crime.'' \186\ The Currency Clause, in turn, 
empowers Congress to ``provide for the Punishment of 
counterfeiting the Securities and current Coin of the United 
States.'' \187\ The Law of Nations Clause authorizes Congress 
to ``define and punish Piracies and Felonies committed on the 
high Seas, and Offenses against the Law of Nations.'' \188\ And 
the Interstate Extradition Clause provides that ``[a] Person 
charged in any State with Treason, Felony, or other Crime'' who 
flees from one state to another shall be returned upon 
request.\189\ Only in the Impeachment Clause did the Framers 
refer to ``high'' crimes. By adding ``high'' in this one 
provision, while excluding it everywhere else, the Framers 
plainly sought to capture a distinct category of offenses 
against the state.\190\
---------------------------------------------------------------------------
    \185\ Tribe & Matz, To End a Presidency, at 40.
    \186\ U.S. Const. Amend. V, Sec. 1.
    \187\ U.S. Const. Art. I, Sec. 8, cl. 6.
    \188\ U.S. Const. Art. I, Sec. 8, cl. 10.
    \189\ U.S. Const. Art. IV, Sec. 2, cl. 2.
    \190\ One might object that since ``Treason'' and ``Bribery'' are 
indictable crimes, the same must be true of ``other high Crimes and 
Misdemeanors.'' But this argument would fail. Although it is true that 
``other high Crimes and Misdemeanors'' share certain characteristics 
with ``Treason'' and ``Bribery,'' the key question is which 
characteristics unify them. And for all the reasons given here, it is 
wrong to conclude that criminality is the unifying principle of 
impeachable offenses. Moreover, if the Framers' goal was to limit 
impeachment to violations of the criminal law, it is passing strange 
that the Impeachment Clause uses a term of art--``high Crimes and 
Misdemeanors''--that appears neither in the criminal law itself nor 
anywhere else in the Constitution (which does elsewhere refer both to 
``crimes'' and ``offenses''). It would have been easy to write a 
provision limiting the impeachment power to serious crimes, and yet the 
Framers pointedly did not do so.
---------------------------------------------------------------------------
    That interpretation is also most consistent with the 
structure of the Constitution. This is true in three respects.
    First, as explained above, the Impeachment Clause restricts 
the consequences of impeachment to removal from office and 
disqualification from future federal officeholding. That speaks 
to the fundamental character of impeachment. In Justice Story's 
words, it is ``a proceeding purely of a political nature. It is 
not so much designed to punish an offender, as to secure the 
state against gross official misdemeanors. It touches neither 
his person, nor his property; but simply divests him of his 
political capacity.'' \191\ Given that impeachment exists to 
address threats to the political system, applies only to 
political officials, and responds only by stripping political 
power, it makes sense to infer that ``high Crimes and 
Misdemeanors'' are offenses against the political system rather 
than indictable crimes.
---------------------------------------------------------------------------
    \191\ 2 Story, Commentaries, at 272.
---------------------------------------------------------------------------
    Second, if impeachment were restricted to crimes, 
impeachment proceedings would be restricted to deciding whether 
the President had committed a specific crime. Such a view would 
create tension between the Impeachment Clause and other 
provisions of the Constitution. For example, the Double 
Jeopardy Clause protects against being tried twice for the same 
crime. Yet the Impeachment Clause contemplates that an 
official, once removed, can still face ``Indictment, Trial, 
Judgment and Punishment, according to Law.'' It would be 
strange if the Framers forbade double jeopardy, yet allowed the 
President to be tried in court for crimes after Congress 
convicted him in a proceeding that necessarily (and 
exclusively) decided whether he was guilty of those very same 
crimes.\192\ That oddity is avoided only if impeachment 
proceedings are seen ``in noncriminal terms,'' which occurs if 
impeachable offenses are understood as distinct from indictable 
crimes.\193\
---------------------------------------------------------------------------
    \192\ See Berger, Impeachment, at 80.
    \193\ Id.
---------------------------------------------------------------------------
    Finally, the Constitution was originally understood as 
limiting Congress's power to create a federal law of crimes. It 
would therefore be strange if the Framers restricted 
impeachment to criminal offenses, while denying Congress the 
ability to criminalize many forms of Presidential wrongdoing 
that they repeatedly described as requiring impeachment.
    To set this point in context, the Constitution expressly 
authorizes Congress to criminalize only a handful of wrongful 
acts: ``counterfeiting, piracy, `offenses against the law of 
nations,' and crimes that occur within the military.'' \194\ 
Early Congresses did not tread far beyond that core category of 
crimes, and the Supreme Court took a narrow view of federal 
power to pass criminal statutes. It was not until much later--
in the twentieth century--that the Supreme Court came to 
recognize that Congress could enact a broader criminal code. As 
a result, early federal criminal statutes ``covered relatively 
few categories of offenses.'' \195\ Many federal offenses were 
punishable only when committed ``in special places, and within 
peculiar jurisdictions, as, for instance, on the high seas, or 
in forts, navy-yards, and arsenals ceded to the United 
States.'' \196\
---------------------------------------------------------------------------
    \194\ William J. Stuntz, The Collapse of American Criminal Justice 
99 (2011).
    \195\ Tribe & Matz, To End a Presidency, at 48.
    \196\ 2 Story, Commentaries, at 264.
---------------------------------------------------------------------------
    The Framers were not fools. They authorized impeachment for 
a reason, and that reason would have been gutted if impeachment 
were limited to crimes. It is possible, of course, that the 
Framers thought the common law, rather than federal statutes, 
would define criminal offenses. That is undeniably true of 
``Bribery'': the Framers saw this impeachable offense as 
defined by the common law of bribery as it was understood at 
the time. But it is hard to believe that the Framers saw common 
law as the sole measure of impeachment. For one thing, the 
common law did not address itself to many wrongs that could be 
committed uniquely by the President in our republican system. 
The common law would thus have been an extremely ineffective 
tool for achieving the Framers' stated purposes in authorizing 
impeachment. Moreover, the Supreme Court held in 1812 that 
there is no federal common law of crimes.\197\ If the Framers 
thought only crimes could be impeachable offenses, and hoped 
common law would describe the relevant crimes, then they made a 
tragic mistake--and the Supreme Court's 1812 decision ruined 
their plans for the impeachment power.\198\
---------------------------------------------------------------------------
    \197\ United States v. Hudson and Goodwin, 11 U.S. 32 (1812).
    \198\ In the alternative, one might say that ``high Crimes and 
Misdemeanors'' occur when the president violates state criminal law. 
But that turns federalism upside down: invoking state criminal codes to 
supply the content of the federal Impeachment Clause would grant states 
a bizarre and incongruous primacy in the constitutional system. 
Especially given that impeachment is crucial to checks and balances 
within the federal government, it would be nonsensical for states to 
effectively control when this power may be wielded by Congress.
---------------------------------------------------------------------------
    Rather than assume the Framers wrote a Constitution full of 
empty words and internal contradictions, it makes far more 
sense to agree with Hamilton that impeachment is not about 
crimes. The better view, which the House itself has long 
embraced, confirms that impeachment targets offenses against 
the Constitution that threaten democracy.\199\
---------------------------------------------------------------------------
    \199\ Article III of the Constitution provides that ``the Trial of 
all Crimes, except in Cases of Impeachment, shall be by Jury.'' Article 
III, Sec. 2. This provision recognizes that impeachable conduct may 
entail criminal conduct--and clarifies that in such cases, the trial of 
an impeachment still occurs in the Senate, not by jury.
---------------------------------------------------------------------------

                     C. The Purpose of Impeachment

    The distinction between impeachable offenses and crimes 
also follows from the fundamentally different purposes that 
impeachment and the criminal law serve. At bottom, the 
impeachment power is ``the first step in a remedial process--
removal from office and possible disqualification from holding 
future office.'' \200\ It exists ``primarily to maintain 
constitutional government'' and is addressed exclusively to 
abuses perpetrated by federal officeholders.\201\ It is through 
impeachment proceedings that ``a President is called to account 
for abusing powers that only a President possesses.'' \202\ The 
criminal law, in contrast, ``sets a general standard of conduct 
that all must follow.'' \203\ It applies to all persons within 
its compass and ordinarily defines acts forbidden to everyone; 
in our legal tradition, the criminal code ``does not address 
itself [expressly] to the abuses of presidential power.'' \204\
---------------------------------------------------------------------------
    \200\ Constitutional Grounds for Presidential Impeachment (1974), 
at 24.
    \201\ Id.
    \202\ Id.
    \203\ Id.
    \204\ Id.
---------------------------------------------------------------------------
    Indeed, ``the early Congresses--filled with Framers--didn't 
even try to create a body of criminal law addressing many of 
the specific abuses that motivated adoption of the Impeachment 
Clause in the first place.'' \205\ This partly reflects ``a 
tacit judgment that it [did] not deem such a code necessary.'' 
\206\ But that is not the only explanation. The Constitution 
vests ``the sole Power of Impeachment'' in the House; it is 
therefore doubtful that a statute enacted by one Congress (and 
signed by the President) could bind the House at a later 
date.\207\ Moreover, any such effort to define and criminalize 
all impeachable offenses would quickly run aground. As Justice 
Story cautioned, impeachable offenses ``are of so various and 
complex a character, so utterly incapable of being defined, or 
classified, that the task of positive legislation would be 
impracticable, if it were not almost absurd to attempt it.'' 
\208\
---------------------------------------------------------------------------
    \205\ Tribe & Matz, To End a Presidency, at 48-49.
    \206\ Berger, Impeachment, at 78.
    \207\ Committee Report on Nixon Articles of Impeachment (1974), at 
25.
    \208\ 2 Story, Commentaries, at 264.
---------------------------------------------------------------------------
    There are also general characteristics of the criminal law 
that make criminality inappropriate as an essential element of 
impeachable conduct. For example, criminal law traditionally 
forbids acts, rather than failures to act, yet impeachable 
conduct ``may include the serious failure to discharge the 
affirmative duties imposed on the President by the 
Constitution.'' \209\ In addition, unlike a criminal case 
focused on very specific conduct and nothing else, a 
Congressional impeachment proceeding may properly consider a 
broader course of conduct or scheme that tends to subvert 
constitutional government.\210\ Finally, the application of 
general criminal statutes to the President may raise 
constitutional issues that have no bearing on an impeachment 
proceeding, the whole point of which is to assess whether the 
President has abused power in ways requiring his removal from 
office.\211\
---------------------------------------------------------------------------
    \209\ Constitutional Grounds for Presidential Impeachment (1974), 
at 24
    \210\ Id., at 24-25.
    \211\ Robert S. Mueller, III, Report On The Investigation Into 
Russian Interference In The 2016 Presidential Election, Vol. II at 170-
181 (March 2019).
---------------------------------------------------------------------------
    For all these reasons, ``[a] requirement of criminality 
would be incompatible with the intent of the framers to provide 
a mechanism broad enough to maintain the integrity of 
constitutional government. Impeachment is a constitutional 
safety valve; to fulfill this function, it must be flexible 
enough to cope with exigencies not now foreseeable.'' \212\
---------------------------------------------------------------------------
    \212\ Constitutional Grounds for Presidential Impeachment (1974), 
at 25.
---------------------------------------------------------------------------

                D. The Limited Relevance of Criminality

    As demonstrated, the President can commit ``high Crimes and 
Misdemeanors'' without violating federal criminal law. ``To 
conclude otherwise would be to ignore the original meaning, 
purpose and history of the impeachment power; to subvert the 
constitutional design of a system of checks and balances; and 
to leave the nation unnecessarily vulnerable to abusive 
government officials.'' \213\ Yet the criminal law is not 
irrelevant. ``Our criminal codes identify many terrible acts 
that would surely warrant removal if committed by the chief 
executive.'' \214\ Moreover, the President is sworn to uphold 
the law. If he violates it while grossly abusing power, 
betraying the national interest through foreign entanglements, 
or corrupting his office or elections, that weighs in favor of 
impeaching him.
---------------------------------------------------------------------------
    \213\ Keith E. Whittington, Must Impeachable Offenses Be Violations 
of the Criminal Code?, Lawfare, Nov. 19, 2019.
    \214\ Tribe & Matz, To End a Presidency, at 51.
---------------------------------------------------------------------------

               VI. Addressing Fallacies About Impeachment

    Since the House began its impeachment inquiry, a number of 
inaccurate claims have circulated about how impeachment works 
under the Constitution. To assist the Committee in its 
deliberations, we address six issues of potential relevance: 
(1) the law that governs House procedures for impeachment; (2) 
the law that governs the evaluation of evidence, including 
where the President orders defiance of House subpoenas; (3) 
whether the President can be impeached for the abuse of his 
executive powers; (4) whether the President's claims regarding 
his motives must be accepted at face value; (5) whether the 
President is immune from impeachment if he attempts an 
impeachable offense but is caught before he completes it; and 
(6) whether it is preferable to await the next election when a 
President has sought to corrupt that very same election.

                       A. The Impeachment Process

    It has been argued that the House has not followed proper 
procedure in its ongoing impeachment inquiry. We have 
considered those arguments and find that they lack merit.
    To start with first principles, the Constitution vests the 
House with the ``sole Power of Impeachment.'' \215\ It also 
vests the House with the sole power to ``determine the Rules of 
its Proceedings.'' \216\ These provisions authorize the House 
to investigate potential ``high Crimes and Misdemeanors,'' to 
draft and debate articles of impeachment, and to establish 
whatever rules and procedures it deems proper for those 
proceedings.\217\
---------------------------------------------------------------------------
    \215\ U.S. Const. Art. I, Sec. 2, cl. 5.
    \216\ U.S. Const. Art. I, Sec. 5, cl. 2.
    \217\ See David Pozen, Risk-Risk Tradeoffs in Presidential 
Impeachment, Take Care, Jun. 6, 2018 (``Both chambers of Congress enjoy 
vast discretion in how they run impeachment proceedings.'').
---------------------------------------------------------------------------
    When the House wields its constitutional impeachment power, 
it functions like a grand jury or prosecutor: its job is to 
figure out what the President did and why he did it, and then 
to decide whether the President should be charged with 
impeachable offenses. If the House approves any articles of 
impeachment, the President is entitled to present a full 
defense at trial in the Senate. It is thus in the Senate, and 
not in the House, where the President might properly raise 
certain protections associated with trials.\218\
---------------------------------------------------------------------------
    \218\ Contra Letter from Pat A. Cipollone, Counsel to the 
President, to Hon. Nancy Pelosi, Speaker of the House, Hon. Adam B. 
Schiff, Chairman, H. Perm. Select Comm. on Intelligence, Hon. Eliot L. 
Engel, Chairman, H. Foreign Affairs Comm., and Hon. Elijah E. Cummings, 
Chairman, H. Comm. on Oversight and Reform (Oct. 8, 2019); Leader 
McCarthy Speech Against the Sham Impeachment Vote, Kevin McCarthy, 
Republican Leader, Oct. 31, 2019.
---------------------------------------------------------------------------
    Starting in May 2019, the Judiciary Committee undertook an 
inquiry to determine whether to recommend articles of 
impeachment against President Trump. The Committee subsequently 
confirmed, many times, that it was engaged in an impeachment 
investigation. On June 11, 2019, the full House approved a 
resolution confirming that the Judiciary Committee possessed 
``any and all necessary authority under Article I of the 
Constitution'' to continue its investigation; an accompanying 
Rules Committee Report emphasized that the ``purposes'' of the 
inquiry included ``whether to approve `articles of impeachment 
with respect to the President.' '' \219\ As the Judiciary 
Committee continued with its investigation, evidence came to 
light that President Trump may have grossly abused the power of 
his office in dealings with Ukraine. At that point, the House 
Permanent Select Committee on Intelligence, and the House 
Oversight and Foreign Affairs Committees, began investigating 
potential offenses relating to Ukraine. On September 24, 2019, 
House Speaker Nancy Pelosi directed these committees, as well 
as the House Judiciary, Financial Services and Ways and Means 
Committees, to ``proceed with their investigations under that 
umbrella of [an] impeachment inquiry.'' \220\ Finally, on 
October 31, 2019, the full House approved H. Res. 660, which 
directed the six committees ``to continue their ongoing 
investigations as part of the existing House of Representatives 
inquiry into whether sufficient grounds exist for the House of 
Representatives to exercise its Constitutional power to impeach 
Donald John Trump, President of the United States of America.'' 
\221\
---------------------------------------------------------------------------
    \219\ H. Res. 430, 116th Cong. (2019); Authorizing the Committee on 
the Judiciary to Initiate or Intervene in Judicial Proceedings to 
Enforce Certain Subpoenas and for Other Purposes To Accompany H. Res. 
430, H.R. Rep. 116-108, at 21 (2019).
    \220\ Pelosi Remarks Announcing Impeachment Inquiry, Sep. 24 2019, 
Nancy Pelosi, Speaker of the House.
    \221\ H. Res. 660, 116th Cong. (2019).
---------------------------------------------------------------------------
    This approach to investigating potential impeachable 
offenses adheres to the Constitution, the Rules of the House, 
and historical practice.\222\ House Committees have frequently 
initiated and made substantial progress in impeachment 
inquiries before the full House considered a resolution 
formalizing their efforts. That is what happened in the cases 
of Presidents Johnson and Nixon, as well as in many judicial 
impeachments (which are subject to the same constitutional 
provisions).\223\ Indeed, numerous judges have been impeached 
without any prior vote of the full House authorizing a formal 
inquiry.\224\ It is both customary and sensible for 
committees--particularly the Judiciary Committee--to 
investigate evidence of serious wrongdoing before decisions are 
made by the full House.
---------------------------------------------------------------------------
    \222\ See generally H.R. Rep. No. 116-108.
    \223\ See 3 Hinds Ch. 75 Sec. 2400 (President Johnson); 3 Deschler 
Ch. 14, Sec. 15 (President Nixon); H.R. Rep. No. 101-36, at 13-16 
(1988) (Judge Walter Nixon); H.R. Res. 320, 100th Cong. (Judge Alcee 
Hastings); H.R. Rep. No. 99-688, at 3-7 (1986) (Judge Harry Claiborne); 
3 Deschler Ch. 14 Sec. 5 (Justice William O. Douglas).
    \224\ See H. Res. 87, 101st Cong. (1989) (impeaching Judge Nixon); 
H. Res. 499, 100th Cong. (1988) (impeaching Judge Hastings); H. Res. 
461, 99th Cong. (1986) (impeaching Judge Claiborne).
---------------------------------------------------------------------------
    In such investigations, the House's initial task is to 
gather evidence. As is true of virtually any competent 
investigation, whether governmental or private, the House has 
historically conducted substantial parts of the initial fact-
finding process out of public view to ensure more accurate and 
complete testimony.\225\ In President Nixon's case, for 
instance, only the Judiciary Committee Chairman, Ranking 
Member, and Committee staff had access to material gathered by 
the impeachment inquiry in its first several months.\226\ There 
was no need for similar secrecy in President Clinton's case, 
but only because the House did not engage in a substantial 
investigation of its own; it largely adopted the facts set 
forth in a report by Independent Counsel Kenneth Starr, who had 
spent years investigating behind closed doors.\227\
---------------------------------------------------------------------------
    \225\ See Tribe & Matz, To End A Presidency, at 92 (``Historically, 
the House and Senate have investigated through their committees . . . 
Critically, although they may involve occasional public hearings, most 
investigatory activities must be kept secret until they have nearly 
reached an end.'').
    \226\ Debate on Nixon Articles of Impeachment (1974), at 86.
    \227\ Committee Report on Clinton Articles of Impeachment (1998), 
at 300.
---------------------------------------------------------------------------
    When grand juries and prosecutors investigate wrongdoing by 
private citizens and public officials, the person under 
investigation has no right to participate in the examination of 
witnesses and evidence that precedes a decision on whether to 
file charges. That is black letter law under the Constitution, 
even in serious criminal cases that threaten loss of life or 
liberty. The same is true in impeachment proceedings, which 
threaten only loss of public office. Accordingly, even if the 
full panoply of rights held by criminal defendants 
hypothetically were to apply in the non-criminal setting of 
impeachment, the President has no ``due process right'' to 
interfere with, or inject himself into, the House's fact-
finding efforts. If the House ultimately approves articles of 
impeachment, any rights that the President might hold are 
properly secured at trial in the Senate, where he may be 
afforded an opportunity to present an evidentiary defense and 
test the strength of the House's case.
    Although under no constitutional or other legal obligation 
to do so, but consistent with historical practice, the full 
House approved a resolution--H. Res. 660--that ensures 
transparency, allows effective public hearings, and provides 
the President with opportunities to participate. The privileges 
afforded under H. Res. 660 are even greater than those provided 
to Presidents Nixon and Clinton. They allow the President or 
his counsel to participate in House Judiciary Committee 
proceedings by presenting their case, responding to evidence, 
submitting requests for additional evidence, attending hearings 
(including non-public hearings), objecting to testimony, and 
cross-examining witnesses. In addition, H. Res. 660 gave the 
minority the same rights to question witnesses that the 
majority has, as has been true at every step of this 
impeachment proceeding.
    The impeachment inquiry concerning President Trump has thus 
complied in every respect with the Constitution, the Rules of 
the House, and historic practice of the House.

       B. Evidentiary Considerations and Presidential Obstruction

    The House impeachment inquiry has compiled substantial 
direct and circumstantial evidence bearing on the question 
whether President Trump may have committed impeachable 
offenses. President Trump has objected that some of this 
evidence comes from witnesses lacking first-hand knowledge of 
his conduct. In the same breath, though, he has ordered 
witnesses with first-hand knowledge to defy House subpoenas for 
testimony and documents--and has done so in a categorical, 
unqualified manner. President Trump's evidentiary challenges 
are misplaced as a matter of constitutional law and common 
sense.
    The Constitution does not prescribe rules of evidence for 
impeachment proceedings in the House or Senate. Consistent with 
its sole powers to impeach and to determine the rules of its 
proceedings, the House is constitutionally authorized to 
consider any evidence that it believes may illuminate the 
issues before it. At this fact-finding stage, ``no technical 
`rules of evidence' apply,'' and ``[e]vidence may come from 
investigations by committee staff, from grand jury matter made 
available to the committee, or from any other source.'' \228\ 
The House may thus ``subpoena documents, call witnesses, hold 
hearings, make legal determinations, and undertake any other 
activities necessary to fulfill [its] mandate.'' \229\ When 
deciding whether to bring charges against the President, the 
House is not restricted by the Constitution in deciding which 
evidence to consider or how much weight to afford it.
---------------------------------------------------------------------------
    \228\ Black & Bobbitt, Impeachment, at 9.
    \229\ Tribe & Matz, To End a Presidency, at 129.
---------------------------------------------------------------------------
    Indeed, were rules of evidence to apply anywhere, it would 
be in the Senate, where impeachments are tried. Yet the Senate 
does not treat the law of evidence as controlling at such 
trials.\230\ As one scholar explains, ``rules of evidence were 
elaborated primarily to hold juries within narrow limits. They 
have no place in the impeachment process. Both the House and 
the Senate ought to hear and consider all evidence which seems 
relevant, without regard to technical rules. Senators are in 
any case continually exposed to `hearsay' evidence; they cannot 
be sequestered and kept away from newspapers, like a jury.'' 
\231\
---------------------------------------------------------------------------
    \230\ Gerhardt, The Federal Impeachment Process, at 42 (``[E]ven if 
the Senate could agree on such rules for impeachment trials, they would 
not be enforceable against or binding on individual senators, each of 
whom traditionally has had the discretion in an impeachment trial to 
follow any evidentiary standards he or she sees fit.'').
    \231\ Black & Bobbitt, Impeachment, at 18. see also Gerhardt, The 
Federal Impeachment Process, at 117 (``Both state and federal courts 
require special rules of evidence to make trials more efficient and 
fair or to keep certain evidence away from a jury, whose members might 
not understand or appreciate its reliability, credibility, or 
potentially prejudicial effect.'').
---------------------------------------------------------------------------
    Instead of adopting abstract or inflexible rules, the House 
and Senate have long relied on their common sense and good 
judgment to assess evidence in impeachments. When evidence is 
relevant but there is reason to question its reliability, those 
considerations affect how much weight the evidence is given, 
not whether it can be considered at all.
    Here, the factual record is formidable and includes many 
forms of highly reliable evidence. It goes without saying, 
however, that the record might be more expansive if the House 
had full access to the documents and testimony it has lawfully 
subpoenaed from government officials. The reason the House 
lacks such access is an unprecedented decision by President 
Trump to order a total blockade of the House impeachment 
inquiry.
    In contrast, the conduct of prior chief executives 
illustrates the lengths to which they complied with impeachment 
inquiries. As President James Polk conceded, the ``power of the 
House'' in cases of impeachment ``would penetrate into the most 
secret recesses of the Executive Departments,'' and ``could 
command the attendance of any and every agent of the 
Government, and compel them to produce all papers, public or 
private, official or unofficial, and to testify on oath to all 
facts within their knowledge.'' \232\ Decades later, when the 
House conducted an impeachment inquiry into President Johnson, 
it interviewed cabinet officials and Presidential aides, 
obtained extensive records, and heard testimony about 
conversations with Presidential advisors.\233\ Presidents 
Grover Cleveland, Ulysses S. Grant, and Theodore Roosevelt each 
confirmed that Congress could obtain otherwise-shielded 
executive branch documents in an impeachment inquiry.\234\ And 
in President Nixon's case--where the President's refusal to 
turn over tapes led to an article of impeachment--the House 
Judiciary Committee still heard testimony from his chief of 
staff (H.R. Haldeman), special counsel (Charles Colson), 
personal attorney (Herbert Kalmbach), and deputy assistant 
(Alexander Butterfield). Indeed, with respect to the Senate 
Watergate investigation, President Nixon stated: ``All members 
of the White House Staff will appear voluntarily when requested 
by the committee. They will testify under oath, and they will 
answer fully all proper questions.'' \235\ President Trump's 
categorical blockade of the House impeachment inquiry has no 
analogue in the history of the Republic.\236\
---------------------------------------------------------------------------
    \232\ H.R. Jour., 29th Cong., 1st Sess., 693 (1846); 4 James D. 
Richardson ed., Messages and Papers of Presidents 434-35 (1896).
    \233\ See generally Reports of Committees, Impeachment 
Investigation, 40th Cong., 1st Sess. 183-578 (1867).
    \234\ See Jonathan David Shaub, The Executive's Privilege: 
Rethinking the President's Power to Withhold Information, Lawfare (Oct. 
31, 2019).
    \235\ The President's Remarks Announcing Developments and 
Procedures to be Followed in Connection with the Investigation, The 
White House Apr. 17, 1973. President Nixon initially stated that 
members of his ``personal staff'' would ``decline a request for a 
formal appearance before a committee of the Congress,'' but reversed 
course approximately one month later., Statement by the President, 
Executive Privilege The White House Mar. 12, 1973.
    \236\ See Tribe & Matz, To End A Presidency, at 129 (``Congress's 
investigatory powers are at their zenith in the realm of impeachment. 
They should ordinarily overcome almost any claim of executive privilege 
asserted by the president.'').
---------------------------------------------------------------------------
    As a matter of constitutional law, the House may properly 
conclude that a President's obstruction of Congress is relevant 
to assessing the evidentiary record in an impeachment inquiry. 
For centuries, courts have recognized that ``when a party has 
relevant evidence within his control which he fails to produce, 
that failure gives rise to an inference that the evidence is 
unfavorable to him.'' \237\ Moreover, it is routine for courts 
to draw adverse inferences where a party acts in bad faith to 
conceal or destroy evidence or preclude witnesses from 
testifying.\238\ Although those judicial rules do not control 
here, they are instructive in confirming that parties who 
interfere with fact-finding processes can suffer an evidentiary 
sanction. Consistent with that commonsense principle, the House 
has informed the administration that defiance of subpoenas at 
the direction or behest of the President or the White House 
could justify an adverse inference against the President. In 
light of President Trump's unlawful and unqualified direction 
that governmental officials violate their legal 
responsibilities to Congress, as well as his pattern of witness 
intimidation, the House may reasonably infer that their 
testimony would be harmful to the President--or at least not 
exculpatory. If this evidence were helpful to the President, he 
would not break the law to keep it hidden, nor would he engage 
in public acts of harassment to scare other witnesses who might 
consider coming forward.\239\
---------------------------------------------------------------------------
    \237\ Int'l Union, United Auto., Aerospace & Agr. Implement Workers 
of Am. (UAW) v. N. L. R. B., 459 F.2d 1329, 1336 (D.C. Cir. 1972); see 
also Interstate Circuit v. United States, 306 U.S. 208, 225-26 (1939); 
Rossi v. United States, 289 U.S. 89, 91-92 (1933); Mammoth Oil Co. v. 
United States, 275 U.S. 13, 51-53 (1927); Burdine v. Johnson, 262 F.3d 
336, 366 (5th Cir. 2001) (collecting cases); United States v. Pitts, 
918 F.2d 197, 199 (D.C. Cir. 1990) (holding that, where a missing 
witness has ``so much to offer that one would expect [him] to take the 
stand,'' and where ``one of the parties had some special ability to 
produce him,'' the law allows an inference ``that the missing witness 
would have given testimony damaging to that party'').
    \238\ See, e.g., Bracey v. Grondin, 712 F.3d 1012, 1018 (7th Cir. 
2013); Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 
107 (2d Cir. 2002); Nation-Wide Check Corp. v. Forest Hills 
Distributors, Inc., 692 F.2d 214, 217 (1st Cir. 1982); see also 2 Jones 
on Evidence Sec. 13:12 & Sec. 13:15 (7th ed. 2019 update).
    \239\ If the President could order all Executive Branch agencies 
and officials to defy House impeachment inquiries, and if the House 
were unable to draw any inferences from that order with respect to the 
President's alleged misconduct, the impeachment power would be a 
nullity in many cases where it plainly should apply.
---------------------------------------------------------------------------
    One noteworthy result of President Trump's obstruction is 
that the House has been improperly denied testimony by certain 
government officials who could have offered first-hand accounts 
of relevant events. That does not leave the House at sea: there 
is still robust evidence, both documentary and testimonial, 
bearing directly on his conduct and motives. But especially 
given the President's obstruction of Congress, the House is 
free under the Constitution to consider reliable testimony from 
officials who overheard--or later learned about--statements by 
the President to witnesses whose testimony he has blocked.\240\
---------------------------------------------------------------------------
    \240\ Under the Federal Rules of Evidence--which, again, are not 
applicable in Congressional impeachment proceedings--judges sometimes 
limit witnesses from offering testimony about someone else's out-of-
court statements. They do so for reasons respecting reliability and 
with an eye to the unique risks presented by unsophisticated juries 
that may not properly evaluate evidence. But because hearsay evidence 
can in fact be highly reliable, and because it is ``often relevant,'' 
Tome v. United States, 513 U.S. 150, 163 (1995), there are many 
circumstances in which such testimony is admissible in federal judicial 
proceedings. Those circumstances include, but are by no means limited 
to, recorded recollections, records of regularly conducted activity, 
records of a public office, excited utterances, and statements against 
penal or other interest. Moreover, where hearsay evidence bears indicia 
of reliability, it is regularly used in many other profoundly important 
contexts, including federal sentencing and immigration proceedings. 
See, e.g., Arrazabal v. Barr, 929 F.3d 451, 462 (7th Cir. 2019); United 
States v. Mitrovic, 890 F.3d 1217, 1222 (11th Cir. 2018); United States 
v. Woods, 596 F.3d 445, 448 (8th Cir. 2010). Ironically, although some 
have complained that hearings related to the Ukraine affair initially 
occurred out of public sight, one reason for that measure was to ensure 
the integrity of witness testimony. Where multiple witnesses testified 
to the same point in separate, confidential hearings, that factual 
conclusion may be seen as corroborated and more highly reliable.
---------------------------------------------------------------------------
    To summarize: just like grand jurors and prosecutors, the 
House is not subject to rigid evidentiary rules in deciding 
whether to approve articles. Members of the House are trusted 
to fairly weigh evidence in an impeachment inquiry. Where the 
President illegally seeks to obstruct such an inquiry, the 
House is free to infer that evidence blocked from its view is 
harmful to the President's position. It is also free to rely on 
other relevant, reliable evidence that illuminates the ultimate 
factual issues. The President has no right to defy an 
impeachment inquiry and then demand that the House turn back 
because it lacks the very evidence he unlawfully concealed. If 
anything, such conduct confirms that the President sees himself 
as above the law and may therefore bear on the question of 
impeachment.\241\
---------------------------------------------------------------------------
    \241\ The President has advanced numerous arguments to justify his 
across-the-board defiance of the House impeachment inquiry. These 
arguments lack merit. As this Committee recognized when it impeached 
President Nixon for obstruction of Congress, the impeachment power 
includes a corresponding power of inquiry that allows the House to 
investigate the Executive Branch and compel compliance with its 
subpoenas.
---------------------------------------------------------------------------

             C. Abuse of Presidential Power is Impeachable

    The powers of the President are immense, but they are not 
absolute. That principle applies to the current President just 
as it applied to his predecessors. President Nixon erred in 
asserting that ``when the President does it, that means it is 
not illegal.'' \242\ And President Trump was equally mistaken 
when he declared he had ``the right to do whatever I want as 
president.'' \243\ The Constitution always matches power with 
constraint. That is true even of powers vested exclusively in 
the chief executive. If those powers are invoked for corrupt 
reasons, or in an abusive manner that threatens harm to 
constitutional governance, the President is subject to 
impeachment for ``high Crimes and Misdemeanors.''
---------------------------------------------------------------------------
    \242\ Document: Transcript of David Frost's Interview with Richard 
Nixon, 1977, Teaching American History.
    \243\ Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump 
Falsely Says the Constitution Gives Him ``The Right To Do Whatever I 
Want'', The Washington Post, July 23, 2019.
---------------------------------------------------------------------------
    This conclusion follows from the Constitution's history and 
structure. As explained above, the Framers created a formidable 
Presidency, which they entrusted with ``the executive Power'' 
and a host of additional authorities. For example, the 
President alone can confer pardons, sign or veto legislation, 
recognize foreign nations, serve as Commander in Chief of the 
armed forces, and appoint or remove principal officers. The 
President also plays a significant (though not exclusive) role 
in conducting diplomacy, supervising law enforcement, and 
protecting national security. These are daunting powers for any 
one person to wield. If put to nefarious ends, they could wreak 
havoc on our democracy.
    The Framers knew this. Fearful of tyranny in all its forms, 
they saw impeachment as a necessary guarantee that Presidents 
could be held accountable for how they exercised executive 
power. Many delegates at the Constitutional Convention and 
state ratifying conventions made this point, including Madison, 
Randolph, Pinckney, Stillman, and Iredell. Their view was 
widely shared. As James Wilson observed in Pennsylvania, ``we 
have a responsibility in the person of our President''--who is 
``possessed of power''--since ``far from being above the 
laws,'' he is ``amenable to them . . . by impeachment.'' \244\ 
Hamilton struck the same note. In Federalist No. 70, he 
remarked that the Constitution affords Americans the ``greatest 
securities they can have for the faithful exercise of any 
delegated power,'' including the power to discover ``with 
facility and clearness'' any misconduct requiring ``removal 
from office.'' \245\ Impeachment and executive power were thus 
closely intertwined in the Framers' constitutional plan: the 
President could be vested with awesome power, but only because 
he faced removal from office for grave abuses.
---------------------------------------------------------------------------
    \244\ 2 Elliot, Debates in the Several State Conventions, at 480.
    \245\ Alexander Hamilton, Federalist No. 70, at 456.
---------------------------------------------------------------------------
    The architects of checks and balances meant no exceptions 
to this rule. There is no power in the Constitution that a 
President can exercise immune from legal consequence. The 
existence of any such unchecked and uncheckable authority in 
the federal government would offend the bedrock principle that 
nobody is above the law. It would also upend the reasons why 
our Framers wrote impeachment into the Constitution: the exact 
forms of Presidential wrongdoing that they discussed in 
Philadelphia could be committed through use of executive 
powers, and it is unthinkable that the Framers left the Nation 
defenseless in such cases. In fact, when questioned by Mason in 
Virginia, Madison expressly stated that the President could be 
impeached for abuse of his exclusive pardon power--a view that 
the Supreme Court later echoed in Ex Parte Grossman.\246\ By 
the same token, a President could surely be impeached for 
treason if he fired the Attorney General to thwart the 
unmasking of an enemy spy in wartime; he could impeached for 
bribery if he offered to divulge state secrets to a foreign 
nation, conditioned on regulatory exemptions for his family 
business.\247\ Simply put, ``the fact that a power is exclusive 
to the executive--that is, the president alone may exercise 
it--does not mean the power cannot be exercised in clear bad 
faith, and that Congress cannot look into or act upon knowledge 
of that abuse.'' \248\
---------------------------------------------------------------------------
    \246\ 3 Elliot, Debates in the Several State Conventions, 497-98; 
Ex Parte Grossman, 267 U.S. at 121. Madison adhered to this 
understanding after the Constitution was ratified. In 1789, he 
explained to his colleagues in the House that the President would be 
subject to impeachment for abuse of the removal power--which is held by 
the President alone--``if he suffers [his appointees] to perpetrate 
with impunity High crimes or misdemeanors against the United States, or 
neglects to superintend their conduct, so as to check their excesses.'' 
1 Annals of Congress 387 (1789).
    \247\ Scholars have offered many examples and hypotheticals that 
they see as illustrative of this point. See Bowman, High Crimes and 
Misdemeanors, at 258; Black & Bobbitt, Impeachment, 115; Hemel & 
Posner, Presidential Obstruction of Justice, at 1297; Tribe & Matz, To 
End a Presidency, at 61.
    \248\ Jane Chong, Impeachment-Proof? The President's 
Unconstitutional Abuse of His Constitutional Powers, Lawfare, Jan. 2 
2018.
---------------------------------------------------------------------------
    The rule that abuse of power can lead to removal 
encompasses all three branches. The Impeachment Clause applies 
to ``The President, Vice President and all civil Officers of 
the United States,'' including Article III judges.\249\ There 
is no exception to impeachment for misconduct by federal judges 
involving the exercise of their official powers. In fact, the 
opposite is true: ``If in the exercise of the powers with which 
they are clothed as ministers of justice, [judges] act with 
partiality, or maliciously, or corruptly, or arbitrarily, or 
oppressively, they may be called to an account by 
impeachment.'' \250\ Similarly, if Members of Congress exercise 
legislative power abusively or with corrupt purposes, they may 
be removed pursuant to the Expulsion Clause, which permits each 
house of Congress to expel a member ``with the Concurrence of 
two thirds.'' \251\ Nobody is entitled to wield power under the 
Constitution if they ignore or betray the Nation's interests to 
advance their own.
---------------------------------------------------------------------------
    \249\ U.S. Const. Art. II, 4.
    \250\ Bradley v. Fisher 80 U.S. 335, 350 (1871).
    \251\ U.S. Const. Art. I, Sec. 5, cl. 2.
---------------------------------------------------------------------------
    This is confirmed by past practice of the House. President 
Nixon's case directly illustrates the point. As head of the 
Executive Branch, he had the power to appoint and remove law 
enforcement officials, to issue pardons, and to oversee the 
White House, IRS, CIA, and FBI. But he did not have any warrant 
to exercise these Presidential powers abusively or corruptly. 
When he did so, the House Judiciary Committee properly approved 
multiple articles of impeachment against him. Several decades 
later, the House impeached President Clinton. There, the House 
witnessed substantial disagreement over whether the President 
could be impeached for obstruction of justice that did not 
involve using the powers of his office. But it was universally 
presumed--and never seriously questioned--that the President 
could be impeached for obstruction of justice that did involve 
abuse of those powers.\252\ That view rested firmly on a 
correct understanding of the Constitution.
---------------------------------------------------------------------------
    \252\ See generally 1998 Background and History of Impeachment 
Hearing.
---------------------------------------------------------------------------
    Our Constitution rejects pretensions to monarchy and binds 
Presidents with law. A President who sees no limit on his power 
manifestly threatens the Republic.

      D. Presidential Pretexts Need Not Be Accepted at Face Value

    Impeachable offenses are often defined by corrupt intent. 
To repeat Iredell, ``the president would be liable to 
impeachments [if] he had acted from some corrupt motive or 
other,'' or if he was ``willfully abusing his trust.'' \253\ 
Consistent with that teaching, both ``Treason'' and ``Bribery'' 
require proof that the President acted with an improper state 
of mind, as would many other offenses described as impeachable 
at the Constitutional Convention. Contrary to occasional 
suggestions that the House may not examine the President's 
intent, an impeachment inquiry may therefore require the House 
to determine why the President acted the way he did. 
Understanding the President's motives may clarify whether he 
used power in forbidden ways, whether he was faithless in 
executing the laws, and whether he poses a continuing danger to 
the Nation if allowed to remain in office.
---------------------------------------------------------------------------
    \253\ Id., at 49.
---------------------------------------------------------------------------
    When the House probes a President's state of mind, its 
mandate is to find the facts. There is no room for legal 
fictions or lawyerly tricks that distort a clear assessment of 
the President's thinking. That means evaluating the President's 
explanations to see if they ring true. The question is not 
whether the President's conduct could have resulted from 
innocent motives. It is whether the President's real reasons--
the ones actually in his mind as he exercised power--were 
legitimate. The Framers designed impeachment to root out abuse 
and corruption, even when a President masks improper intent 
with cover stories.
    Accordingly, where the President's explanation of his 
motives defies common sense, or is otherwise unbelievable, the 
House is free to reject the pretextual explanation and to 
conclude that the President's false account of his thinking is 
itself evidence that he acted with corrupt motives. The 
President's honesty in an impeachment inquiry, or his lack 
thereof, can thus shed light on the underlying issue.\254\
---------------------------------------------------------------------------
    \254\ See Tribe & Matz, To End A Presidency, at 92 (``Does the 
president admit error, apologize, and clean house? Does he prove his 
innocence, or at least his reasonable good faith? Or does he lie and 
obstruct until the bitter end? Maybe he fires investigators and 
stonewalls prosecutors? . . . These data points are invaluable when 
Congress asks whether leaving the president in office would pose a 
continuing threat to the nation.'').
---------------------------------------------------------------------------
    President Nixon's case highlights the point. In its 
discussion of an article of impeachment for abuse of power, the 
House Judiciary Committee concluded that he had ``falsely used 
a national security pretext'' to direct executive agencies to 
engage in unlawful electronic surveillance investigations, thus 
violating ``the constitutional rights of citizens.'' \255\ In 
its discussion of the same article, the Committee also found 
that President Nixon had interfered with the Justice Department 
by ordering it to cease investigating a crime ``on the pretext 
that it involved national security.'' \256\ President Nixon's 
repeated claim that he had acted to protect national security 
could not be squared with the facts, and so the Committee 
rejected it in approving articles of impeachment against him 
for targeting political opponents.
---------------------------------------------------------------------------
    \255\ Committee Report on Nixon Articles of Impeachment (1974), at 
146.
    \256\ Id., at 179.
---------------------------------------------------------------------------
    Testing whether someone has falsely characterized their 
motives requires careful attention to the facts. In rare cases, 
``some implausible, fantastic, and silly explanations could be 
found to be pretextual without any further evidence.'' \257\ 
Sifting truth from fiction, though, usually demands a thorough 
review of the record--and a healthy dose of common sense. The 
question is whether ``the evidence tells a story that does not 
match the explanation.'' \258\
---------------------------------------------------------------------------
    \257\ Purkett v. Elem, 514 U.S. 765, 776-77 (1995) (Stevens, J., 
dissenting).
    \258\ Dep't of Commerce v. N.Y., No. 18-966, at 27 (U.S. Jun. 27, 
2019).
---------------------------------------------------------------------------
    Because courts assess motive all the time, they have 
identified warning signs that an explanation may be 
untrustworthy. Those red flags include the following:
    First, lack of fit between conduct and explanation. This 
exists when someone claims they were trying to achieve a 
specific goal but then engaged in conduct poorly tailored to 
achieving it.\259\ For instance, imagine the President claims 
that he wants to solve a particular problem--but then he 
ignores many clear examples of that problem, weakens rules 
meant to stop it from occurring, acts in ways unlikely to 
address it, and seeks to punish only two alleged violators 
(both of whom happen to be his competitors). The lack of fit 
between his punitive conduct and his explanation for it 
strongly suggests that the explanation is false, and that he 
invented it as a pretext for corruptly targeting his 
competitors.
---------------------------------------------------------------------------
    \259\ See Romer v. Evans, 517 U.S. 620, 632 (1996); Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 425 (1975); Miller-El v. Dretke, 545 U.S. 
231, 260 (2005).
---------------------------------------------------------------------------
    Second, arbitrary discrimination. When someone claims they 
were acting for a particular reason, look to see if they 
treated similarly-situated individuals the same.\260\ For 
example, if a President says that people doing business abroad 
should not engage in specific practices, does he punish 
everyone who breaks that rule, or does he pick and choose? If 
he picks and chooses, is there a good reason why he targets 
some people and not others, or does he appear to be targeting 
people for reasons unrelated to his stated motive? Where 
similarly-situated people are treated differently, the 
President should be able to explain why; if no such explanation 
exists, it follows that hidden motives are in play.
---------------------------------------------------------------------------
    \260\ Flowers v. Mississippi, 139 S. Ct. 2228, 2249 (2019); Miller-
El v. Cockrell, 537 U.S. 322, 345 (2003).
---------------------------------------------------------------------------
    Third, shifting explanations. When someone repeatedly 
changes their story, it makes sense to infer that they began 
with a lie and may still be lying.\261\ That is true in daily 
life and it is true in impeachments. The House may therefore 
doubt the President's account of his motives when he first 
denies that something occurred; then admits that it occurred 
but denies key facts; then admits those facts and tries to 
explain them away; and then changes his explanation as more 
evidence comes to light. Simply stated, the House is ``not 
required to exhibit a naivete from which ordinary citizens are 
free.'' \262\
---------------------------------------------------------------------------
    \261\ See Foster v. Chatman, 136 S. Ct. 1737, 1754 (2016); Evans v. 
Sebelius, 716 F.3d 617, 620-21 (D.C. Cir. 2013); Geleta v. Gray, 645 
F.3d 408, 413-14 (D.C. Cir. 2011); EEOC v. Sears Roebuck & Co., 243 
F.3d 846, 853 (4th Cir.2001); Dominguez-Cruz v. Suttle Caribe, Inc., 
202 F.3d 424, 432 (1st Cir. 2000); Thurman v. Yellow Freight Sys., 
Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).
    \262\ United States v. Stanchich, 550 F.2d 1294, 1300 (2nd Cir. 
1977) (Friendly, J.) (making a similar point about federal judges).
---------------------------------------------------------------------------
    Fourth, irregular decisionmaking. When someone breaks from 
the normal method of making decisions, and instead acts 
covertly or strangely, there is cause for suspicion. As the 
Supreme Court has reasoned, ``[t]he specific sequence of events 
leading up the challenged decision'' may ``shed some light on 
the decisionmaker's purposes''--and ``[d]epartures from the 
normal procedural sequence'' might ``afford evidence that 
improper purposes are playing a role.'' \263\ There are many 
personnel and procedures in place to ensure sound 
decisionmaking in the Executive Branch. When they are ignored, 
or replaced by secretive irregular channels, the House must 
closely scrutinize Presidential conduct.
---------------------------------------------------------------------------
    \263\  See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 
429 U.S. 252, 267 (1977).
---------------------------------------------------------------------------
    Finally, explanations based on falsehoods. Where someone 
explains why they acted a certain way, but the explanation 
depends on demonstrably false facts, then their explanation is 
suspect.\264\ For example, if a President publicly states that 
he withheld funds from a foreign nation due to its failure to 
meet certain conditions, but the federal agencies responsible 
for monitoring those conditions certify that they were 
satisfied, the House may conclude that the President's 
explanation is only a distraction from the truth.
---------------------------------------------------------------------------
    \264\  See, e.g., Reeves v. Sanderson Plumbing Products, 530 U.S. 
133, 147 (2000); Geleta v. Gray, 645 F.3d 408, 414 (D.C. Cir. 2011); 
Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir. 2007); Murray v. 
Gilmore, 406 F.3d 708, 716 (D.C. Cir. 2005); Salazar v. Wash. Metro. 
Transit Auth., 401 F.3d 504, 511-12 (D.C. Cir. 2005); Anderson v. 
Zubieta, 180 F.3d 329, 348 (D.C. Cir. 1999).
---------------------------------------------------------------------------
    When one or more of these red flags is present, there is 
reason to doubt that the President's account of his motives is 
accurate. When they are all present simultaneously, that 
conclusion is virtually unavoidable. Thus, in examining the 
President's motives as part of an impeachment inquiry, the 
House must test his story against the evidence to see if it 
holds water. If it does not, the House may find that he acted 
with corrupt motives--and that he has made false statements as 
part of an effort to stymie the impeachment inquiry.

          E. Attempted Presidential Misconduct Is Impeachable

    As a matter of settled constitutional law, and contrary to 
recent suggestions otherwise, attempted Presidential wrongdoing 
can be impeachable. This is clear from the records of the 
Constitutional Convention. In the momentous exchange that led 
to adoption of the ``high Crimes and Misdemeanors'' standard, 
Mason championed impeaching Presidents for any ``great and 
dangerous offenses.'' It was therefore necessary, he argued, to 
avoid a narrow standard that would prevent impeachment for 
``attempts to subvert the Constitution'' (emphasis added). 
Then, only minutes later, it was Mason himself who suggested 
``high Crimes and Misdemeanors'' as the test for Presidential 
impeachment. The very author of the relevant constitutional 
text thus made clear it must cover ``attempts.''
    The House Judiciary Committee reached this conclusion in 
President Nixon's case. Its analysis is compelling and 
consistent with Mason's reasoning:

          In some of the instances in which Richard M. Nixon 
        abused the powers of his office, his unlawful or 
        improper objective was not achieved. But this does not 
        make the abuse of power any less serious, nor diminish 
        the applicability of the impeachment remedy. The 
        principle was stated by Supreme Court Justice William 
        Johnson in 1808: ``If an officer attempt[s] an act 
        inconsistent with the duties of his station, it is 
        presumed that the failure of the attempt would not 
        exempt him from liability to impeachment. Should a 
        President head a conspiracy for the usurpation of 
        absolute power, it is hoped that no one will contend 
        that defeating his machinations would restore him to 
        innocence.'' Gilchrist v. Collector of Charleston, 10 
        F. Cas. 355, 365 (No. 5, 420) (C.C.D.S.C. 1808).

Adhering to this legal analysis, the Committee approved 
articles of impeachment against President Nixon that 
encompassed acts of attempted wrongdoing that went nowhere or 
were thwarted. That includes President Nixon's attempt to block 
an investigation by the Patman Committee into the Watergate 
break-ins,\265\ his attempt to block testimony by former 
aides,\266\ his attempt to ``narrow and divert'' the Senate 
Select Committee's investigation,\267\ and his attempt to have 
the IRS open tax audits of 575 members of George McGovern's 
staff and contributors to his campaign, at a time when McGovern 
was President Nixon's political opponent in the upcoming 1972 
presidential election.\268\ Moreover, the article of 
impeachment against President Nixon for abuse of power charged 
that he ``attempted to prejudice the constitutional right of an 
accused to a fair trial.'' \269\
---------------------------------------------------------------------------
    \265\ Committee Report on Nixon Articles of Impeachment (1974), at 
64.
    \266\ Id., at 120.
    \267\ Id.
    \268\ Id., at 143.
    \269\ Id., at 3.
---------------------------------------------------------------------------
    History thus confirms that defiance by his own aides do not 
afford the President a defense to impeachment. The Nation is 
not required to cross its fingers and hope White House staff 
will persist in ignoring or sidelining a President who orders 
them to execute ``high Crimes and Misdemeanors.'' Nor can a 
President escape impeachment just because his corrupt plan to 
abuse power or manipulate elections was discovered and 
abandoned. It is inconceivable that our Framers authorized the 
removal of Presidents who engage in treason or bribery, but 
disallowed the removal of Presidents who attempt such offenses 
and are caught before they succeed. Moreover, a President who 
takes concrete steps toward engaging in impeachable conduct is 
not entitled to any benefit of the doubt. As one scholar 
remarks in the context of attempts to manipulate elections, 
``when a substantial attempt is made by a candidate to procure 
the presidency by corrupt means, we may presume that he at 
least thought this would make a difference in the outcome, and 
thus we should resolve any doubts as to the effects of his 
efforts against him.'' \270\
---------------------------------------------------------------------------
    \270\ Black & Bobbitt, Impeachment, at 93.
---------------------------------------------------------------------------
    Common sense confirms what the law provides: a President 
may be impeached where he attempts a grave abuse of power, is 
caught along the way, abandons his plan, and subsequently seeks 
to conceal his wrongdoing. A President who attempts impeachable 
offenses will surely attempt them again. The impeachment power 
exists so that the Nation can remove such Presidents from power 
before their attempts finally succeed.

            F. Impeachment is Part of Democratic Governance

    As House Judiciary Committee Chairman Peter Rodino 
emphasized in 1974, ``it is under our Constitution, the supreme 
law of our land, that we proceed through the sole power of 
impeachment.'' \271\ Impeachment is part of democratic 
constitutional governance, not an exception to it. It results 
in the President's removal from office only when a majority of 
the House, and then a super-majority of the Senate, conclude 
that he has engaged in sufficiently grave misconduct that his 
term in office must be brought to an early end. This process 
does not ``nullify'' the last election. No President is 
entitled to persist in office after committing ``high Crimes 
and Misdemeanors,'' and no voter is entitled to expect that 
their preferred candidate will do so. Under the Constitution, 
when a President engages in great and dangerous offenses 
against the Nation--thus betraying their Oath of Office--
impeachment and removal by Congress may be necessary to protect 
our democracy.
---------------------------------------------------------------------------
    \271\ Debate on Nixon Articles of Impeachment (1974), at 2.
---------------------------------------------------------------------------
    The Framers considered relying solely on elections, rather 
than impeachment, to remove wayward Presidents. But they 
overwhelmingly rejected that position. As Madison warned, 
waiting so long ``might be fatal to the Republic.'' \272\ 
Particularly where the President's misconduct is aimed at 
corrupting our democracy, relying on elections to solve the 
problem is insufficient: it makes no sense to wait for the 
ballot box when a President stands accused of interfering with 
elections and is poised to do so again. Numerous Framers spoke 
directly to this point at the Constitutional Convention. 
Impeachment is the remedy for a President who will do anything, 
legal or not, to remain in office. Allowing the President a 
free pass is thus the wrong move when he is caught trying to 
corrupt elections in the final year of his first four-year 
term--just as he prepares to face the voters.
---------------------------------------------------------------------------
    \272\ Elliot, Debates on the Adoption of the Federal Constitution, 
at 341.
---------------------------------------------------------------------------
    Holding the President accountable for ``high Crimes and 
Misdemeanors'' not only upholds democracy, but also vindicates 
the separation of powers. Representative Robert Kastenmeier 
explained this well in 1974: ``The power of impeachment is not 
intended to obstruct or weaken the office of the Presidency. It 
is intended as a final remedy against executive excess . . . 
[a]nd it is the obligation of the Congress to defend a 
democratic society against a Chief Executive who might be 
corrupt.'' \273\ The impeachment power thus restores balance 
and order when Presidential misconduct threatens constitutional 
governance.
---------------------------------------------------------------------------
    \273\ Debate on Nixon Articles of Impeachment (1974), at 16.
---------------------------------------------------------------------------

                            VII. Conclusion

    As Madison recognized, ``In framing a government which is 
to be administered by men over men, the great difficulty lies 
in this: You must first enable the government to control the 
governed; and in the next place oblige it control itself.'' 
\274\ Impeachment is the House's last and most extraordinary 
resort when faced with a President who threatens our 
constitutional system. It is a terrible power, but only 
``because it was forged to counter a terrible power: the despot 
who deems himself to be above the law.'' \275\ The 
consideration of articles of impeachment is always a sad and 
solemn undertaking. In the end, it is the House--speaking for 
the Nation as a whole--that must decide whether the President's 
conduct rises to the level of ``high Crimes and Misdemeanors'' 
warranting impeachment.
---------------------------------------------------------------------------
    \274\ James Madison, Federalist No. 51, at 356.
    \275\ Jill Lepore, The Invention--And Reinvention--Of Impeachment, 
The New Yorker, Oct. 21 2019.

                             Minority Views

    Voluminous academic writings and government publications 
have addressed standards of impeachment under the Constitution. 
The hearing of December 4, 2019, held by this committee, 
featured four academic witnesses, only one of whom (Professor 
Jonathan Turley) contributed something of significant substance 
to the record. Professor Turley's submitted written testimony 
is attached at the end of these views.\276\
---------------------------------------------------------------------------
    \276\ See also Written Statement of Jonathan Turley, H. Comm. on 
Judiciary hearing, ``The Impeachment Inquiry into President Donald J. 
Trump: Constitutional Grounds for Presidential Impeachment,'' December 
4, 2019, available at https://docs.house.gov/meetings/JU/JU00/20191204/
110281/HHRG-116-JU00-Wstate-TurleyP-20191204.pdf.
---------------------------------------------------------------------------
    Regarding the current impeachment proceedings directed at 
President Donald J. Trump, because the Committee invited no 
fact witnesses to testify, its Majority Views add nothing to 
the factual record--a record which the Republican Staff Report 
\277\ amply shows is based on nothing other than hearsay, 
opinion, and speculation. As a result, the Majority Views 
necessarily fail to make any plausible case for impeachment.
---------------------------------------------------------------------------
    \277\ See Report of Evidence in the Democrats' Impeachment Inquiry 
in the House of Representatives, December 2, 2019, available at https:/
/republicans-oversight.house.gov/wp-content/uploads/2019/12/2019-12-02-
Report-of-Evidence-in-the-Democrats-Impeachment-Inquiry-in-the-House-
of-Representatives.pdf.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]