This article first appeared in The Epoch Times, Nov. 26, 2018
With a new Democratic majority in the U.S. House of Representatives, you may hear more talk about impeaching President Donald Trump.
The Constitution states that federal officials “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The House has the power to impeach, which is a form of accusation, while the Senate tries the case. Although a mere majority of the House is sufficient for impeachment, two-thirds of senators must vote for a conviction.
One problem the president’s opponents face is that unless they can uncover specific instances of treason, bribery, or felony, they will have to rely on the president’s alleged “high misdemeanors.” And that could backfire.
Constitutional experts agree that a “high misdemeanor” is much more serious than the petty offenses we commonly call “misdemeanors” today. In a recently published article in The Federalist Society Review, I explained that the Constitution uses the phrase “high misdemeanor” to mean a breach of fiduciary duty—what the American Founders called a “breach of public trust.”
Nearly all of the Founders believed legislators and public officials should be subject to fiduciary standards. This means public officials should be held to the same standards of conduct the law imposes on private trustees, agents, guardians, attorneys, and so forth.
The idea that government is a public trust is old. It’s in the writings of Aristotle (367–347 B.C.). The Roman statesman and philosopher Cicero (106–43 B.C.)—one of the Founders’ favorite authors—transmitted it to the Western European tradition. During the 16th, 17th, and 18th centuries, important Christian writers promoted it. Among them was John Locke (1632–1704), arguably the political theorist most influential among the American Founders.
The rules governing trustees, guardians, executors, attorneys, and other fiduciaries were, and are, deeply influenced by our moral ideas of how we should treat those entrusted to our care. The rules today are much the sameas when the Constitution was written, although sometimes the labels are different. The most important rules impose six obligations (“fiduciary duties”) on trustees, guardians, and the like:
• The obligation of good faith. This means the trustee or other fiduciary must act honestly.
• The obligation of loyalty to those served—even against the fiduciary’s personal interest.
• The obligation of reasonable care—that is, to act as a reasonable manager in the circumstances.
• The obligation of impartiality. If you serve several people with conflicting interests, you have treat to them all fairly and as equally as possible.
• The obligation to account—that is, provide accurate records of all transactions.
• The obligation to follow instructions in the documents governing the trust or other fiduciary relationship.
The political difficulty for the Democratic House if it tries to impeach the president is that the last time that party was in control, its own conduct fell far short of fiduciary standards. Republicans may counterattack at this very point.
Enactment in 2010 of the Patient Protection and Affordable Care Act (the ACA or “Obamacare”) provides a rich store of examples.
First, when the Democratic Congress and president passed the ACA, we already had 50 years of experience with the federal government’s third-party payer health care system. (A third-party payer system is one where government or insurance companies intervene between patients and doctors.) It rendered health care unduly bureaucratic and very, very expensive. Yet, in passing the ACA, Congress didn’t correct those policies. It doubled down on them. This was a breach of the fiduciary obligation of reasonable care.
Second, leading politicians promoting the ACA made promises they knew, or should have known, couldn’t be kept. Perhaps the most famous example was President Barack Obama’s promise that a patient happy with his or her physician and insurance coverage could keep them. By making such a promise, Obama violated the fiduciary duties of good faith and due care.
Third, Speaker of the House Nancy Pelosi’s comment that “we have to pass the bill so that you can find out what is in it” indicates either a violation of the obligation of due care or a conflict between Congress and its constituents, amounting to a breach of the obligation of loyalty.
Fourth, the Senate created the ACA by gutting a revenue bill that had been passed by the House and inserting entirely new material. As some court cases have suggested, the Senate’s constitutional power to “amend” a revenue bill allowed the Senate to substitute new taxes and fees. But the Senate went much further: It also inserted a massive set of new regulations. The latter action violated the Constitution’s Origination Clause. In other words, Congress breached the fiduciary obligation to follow instructions.
Fifth, along the same lines, during questioning, a key House leader, Rep. John Conyers (D-Mich.), demonstrated he had no idea of the constitutional justification for the ACA. Yet, Conyers then chaired the House Judiciary Committee—which handles constitutional matters—and had served on that committee for more than 50 years. Failure to inform oneself on such a basic question suggests breach of the obligations to follow instructions and of reasonable care.
Finally, once the bill was passed, the Obama administration issued exemptions from its mandates to favored interest groups, and Congress secured exemptions for itself. These were breaches of the fiduciary duties of loyalty and impartiality.
Thus, even if the House of Representatives does find that the president had breaches of fiduciary duty that justify impeachment, one effect of doing so may be to focus public attention on previous conduct the House may wish the public to forget.
On political grounds alone, the House Democratic leadership may decide that proceeding with impeachment would be ill-advised.