A version of this article first appeared in the Epoch Times on December 6, 2019.
This short essay does what the House Judiciary Committee’s panel of “expert witnesses” did not successfully do: First, it explains the meaning of the Constitution’s “high Crimes and Misdemeanors” standard. Next, it discusses how that standard applies to President Trump’s interactions with Ukrainian president Zelensky. Finally, it details the kind of evidence the House Judiciary Committee should have gathered to determine whether the president committed an impeachable offense.
Many phrases in the Constitution— such as “necessary and proper,” “Privileges and Immunities,” and “Convention for proposing Amendments”—carry specialized 18th century meanings not obvious to the modern reader. Recall that most of the leading Founders were lawyers and the Constitution is a legal document. Some of these phases derive from 18th century law.
Therefore, to understand them you have to consult 18th century legal materials in addition to better-known sources such as the 1787 convention debates or the Federalist Papers.
Unfortunately, most of the scholars called by the House Judiciary Committee to address the meaning of “high Crimes and Misdemeanors” were not able to do so accurately. According to the authoritative Westlaw database, two of the three Democratically-appointed witnesses have published no scholarly work on impeachment: Their specialties are in other areas. None showed any familiarity with 18th century fiduciary standards—which (as explained below) are part of the law of impeachment. All of the witnesses voted against President Trump, and several have been involved in anti-Trump activity. It is not surprising, therefore, that except for Professor Jonathan Turley’s heavily footnoted 53-page written statement, the testimony was biased and superficial.
Impeachment law is not for amateurs. It rests on English parliamentary history extending at least as far back as the 1300s. Furthermore, impeachment standards evolved over time. To understand the Constitution’s rules we must know what the standards were when the Constitution was adopted. We can do so by consulting 18th century parliamentary records and legal materials.
Here is some of what they tell us:
* The term “high Crimes” means, approximately, “felonies.”
* The phrase “high . . . Misdemeanors” refers to what the founding generation called “breach of trust” and what modern lawyers call breach of fiduciary duty. Fiduciary duties are the legal obligations imposed those who manage the affairs of other people—bankers, corporate executives, accountants, guardians, and so forth. In broad outline, fiduciary law when the Constitution was adopted was similar to what it is today.
* In the 14th and 15th centuries, an official could be impeached because Parliament disagreed with his policy decisions. However, as several American Founders recognized, by the 18th century this was no longer true. The official must have violated (in the words of several sources) “the known and established law.” This limited impeachment to serious crimes and fiduciary breaches.
* The trial in the upper house of the legislature was a judicial proceeding, not primarily a political one. As the 1782 edition of the popular Jacob’s Law Dictionary noted, “the same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.” The hearsay and impressionist evidence gathered by the House Intelligence Committee is not admissible.
The core of the case against President Trump is that he used his political position to seek re-election assistance from a foreign government. Although there is dark talk of crimes committed, the principal charge is fiduciary rather than criminal. In other words, a “high . . . Misdemeanor.”
House Democrats have struggled to define Trump’s alleged offense. Initially, they described it as “quid pro quo.” Then they employed the term “bribery.” The legally correct designation is “self-dealing.”
Self-dealing is betraying your employer’s interests to enrich yourself. It is a violation of the fiduciary duty of loyalty.
We can assume the president might benefit from a Ukrainian investigation, but that doesn’t mean asking for an investigation was self-dealing as defined by fiduciary, and therefore by impeachment, law. There is nothing unusual or improper about a president asking a recipient of American foreign aid to address corruption. As for seeking political advantage: If we punished every politician who did that, they would all be swinging from the yardarm.
This is as true in foreign as in domestic affairs. When President Obama told the Russian president he would have more flexibility after his re-election, he was saying (1) an agreement now would benefit both Russia and the U.S. but (2) I’m going to sacrifice our mutual interests for the present because such an agreement might hurt my re-election campaign. Was this impeachable self-dealing? Almost certainly not.
So where is the divide between “normal” conduct and impeachable conduct? To answer this, we need to weigh at least three factors: impeachment precedent, the national interest, and the practice of other presidents.
For defining the Constitution’s phase “high . . . Misdemeanors,” the most important precedents (although not the only ones) lie in 18th century impeachment and fiduciary law.
An 18th century impeachment treatise outlines the specific facts by which several officials were impeached for what we now call self-dealing. They include the following: (1) the official enriched himself at the expense of the Crown by arranging for royal pardons, (2) he stole funds from the Royal Navy, (3) he confiscated ships and cargos without due process and appropriated the proceeds, (4) he obtained “exorbitant grants of lands and money, to the great detriment of the revenue,” (5) he seized forfeited land that should have gone to the Crown, and (6) acting through a strawman, he took the proceeds from timber sales in the king’s forests.
All these cases boil down to stealing public property. They don’t look like the Trump-Zelensky dealings at all.
Another part of the answer lies in whether President Trump violated the national interest. As a general rule, self-dealing generally is not just enriching yourself. It is enriching yourself at the expense of your employer. If Trump’s interests were aligned with those of the country, there was no fiduciary breach.
Despite Colonal Vindman’s complaint that Trump violated “the consensus view of the interagency,” the question of whether Trump acted contrary to the national interest is a difficult one to answer. Perhaps we had a national interest in not asking President Zelensky to investigate. But we also had a national interest in asking because it would be useful to know if Ukrainian officials were trying to meddle in our presidential elections. And it would be useful to know whether the family of a leading presidential candidate is engaged in corruption. Remember: the president asked only for an investigation, not for a pre-determined result.
Thus, you can argue the “national interest” issue both ways. It looks more a policy question than a clear case like theft of public funds.
Still another part of the answer lies in how similar officials act in similar circumstances. In absence of a crime, if you want to determine whether a banker handled funds properly, you should investigate how bankers usually handle funds. If you wish to determine whether an investment advisor gave reasonable advice, you should consult what other reputable advisers recommend in the same circumstances.
Similarly, to decide whether President Trump engaged in impermissible self-dealing, we need testimony about how other officials conduct themselves. We know, for example, that then-Vice-President Biden explicitly made aid to the Ukraine conditional on firing a Ukrainian prosecutor. If that conduct was not impeachable (and I do not believe it was) than Trump’s more tepid conduct certainly is not impeachable.
Thus, the Judiciary Committee should ask for testimony from officials of prior presidential administrations, and preferably from the former presidents themselves. Did they ever make foreign aid conditional? What were the conditions? Why? And so forth.
It was a good idea to empanel academic experts to provide guidance on the meaning of “high Crimes and Misdemeanors.” It should be done again, and this time correctly. The next panel should include presidential historians, parliamentary historians, and experts on fiduciary law. It should not consist primarily of law professors, who are notorious for engaging more in advocacy than in true scholarship.
Every panelist should have published research on impeachment, fiduciary law, or related areas. No panelist should be enmeshed in pro-Trump or anti-Trump political activity. They should be limited to discussing constitutional impeachment standards without expostulating on evidentiary testimony. Weighing the evidence is the job of the committee members, not of academics with little judicial or “real life” experience.
Once the scholarly panel has testified, the committee should explore whether the president’s Ukrainian actions clearly violated the national interest and it should gather testimony on the conduct of former administrations in comparable situations.
And only if all those investigations support a “self-dealing” conclusion should the committee recommend articles of impeachment.