Recently on Trumpcast, Jacob Weisberg discussed the three most pressing cases for impeaching President Trump with Noah Feldman, a constitutional law professor at Harvard Law School and author of the forthcoming biography The Three Lives of James Madison. The conversation has been edited and condensed. You can listen to the full interview in the player below.
Jacob Weisberg: There’s a historical question about when impeachment has been used, and there’s a constitutional question about what’s allowed, but fundamentally there’s a political question: Are you going to do this?
Noah Feldman: Impeachment has two parts. First, the House actually passes articles of impeachment, which is sort of like an indictment. It lists all the things that are wrong with the president, and the House can do an investigation and talk about it and figure it out, and then it goes to the Senate for a trial.
You can have an impeachment that’s actually intended to remove the president from office—what might have happened to Nixon, for example—or you can have impeachment that’s really just intended to supervise, humiliate, and constrain the president. That’s sort of what happened to Bill Clinton, and that could happen as soon as you have a Democratic House of Representatives that decides that it’s time to go after Donald Trump in a much more serious way than it has done thus far.
What is your understanding of what “high crimes and misdemeanors” is in constitutional terms?
There’s an instinct that it must be about crimes that are on the books, violations of statutes. That is exactly what it doesn’t mean, because the word high modifies both crimes and misdemeanors. High crimes and misdemeanors was a technical term that the Framers knew from procedures that the British used for impeachment, and high means governmental or in connection with, in our case, the presidency. High crimes and high misdemeanors are actions performed in an official capacity by a government official that violate the basic principles of the government and that therefore subject you to impeachment. They don’t have to be actual crimes that are on the statute books at all.
So say, just to be hypothetical, Trump said, “I’m firing a Supreme Court justice.” That’s not a crime, that’s not something you can do, but it is a high crime in the sense that it’s a crime that can only be committed by someone in that official capacity.
That would be a high crime because it violates the basic principles of the Constitution and because there wouldn’t be anyone there necessarily to stop him. If that happens, the Supreme Court would issue a judgment saying, “You can’t do that, Mr. President,” but other than a few U.S. marshals, there’s nobody with a gun who listens to the Supreme Court justices. The people with the guns listen to the president. So if the president marched in and had a Supreme Court justice removed, you’d need some way to respond to that. That’s a high crime.
We think of crime as big and misdemeanor being a speeding ticket, but misdemeanor didn’t really mean that historically either, did it?
It didn’t. The distinction came much later and only has to do with the criminal law. I think the Framers were just trying to sound a little bit fancy. Why not use two words when one would’ve done just fine?
Let’s talk about what Trump has done that might cross this line that might be the basis for an article of impeachment. I would think No. 1 would be the broad category of corruption.
Corruption is absolutely at the core of what high crimes and misdemeanors are because corruption means you’re gaining something, typically personal, from the fact that you have this government job. And it’s also something that is significant because it can’t always be regulated. Although there’s a lot of debate about this among constitutional scholars, it may be that Congress can’t pass laws blocking the president from doing certain kinds of things. They can say, You can’t take a bribe, but if he’s designing his business operations in such a way as to get gain at his hotels or gain in his other businesses from his actions as president, it may be that Congress can’t stop that from happening, which is what Trump was talking about when he said—
He’s exempt from conflict-of-interest law.
Exactly. Trump formulated this in this way that’s completely wrong. He said, “The president can’t have a conflict of interest.” What might be true is that under the laws that Congress passes, Congress can’t hold him responsible for that, but he can have a conflict of interest, and the way to do something about that is actually through impeachment. So I’d say corruption is definitely is bucket No. 1 of bad things that the president could do that would get him impeached. And there are all kinds of things that the president has done thus far that already I think would reach that level, most likely.
Law professors like the term emoluments, from Article I, which I think has specifically to do with taking something of value from a foreign person of government, which it certainly seems like he and members of his family have been doing. But is emoluments the core of corruption, or does it go beyond that?
Emoluments are definitely part of corruption. The emolument does have to be from a foreign government. I would say corruption goes beyond that.
Imagine that it had been the president or a trust of which the president is the beneficiary of that he hadn’t really relinquished control. Under those circumstances, imagine it wasn’t a foreign government giving him money but just a foreign person, and we could show that that had to do with his being president, which is pretty easy to show circumstantially. That would be a form of corruption. It wouldn’t necessarily be a form of emolument if the money didn’t come from a foreign government, but it would still be grounds for impeachment without any doubt.
The pattern of corruption in other countries like Italy under Berlusconi shows that when you run the country and you also have a business, people tend to overpay you for what you sell and undercharge you for what they buy from you. The Trump International Hotel compared to a Brand X hotel without the Trump name on it is going to charge more for those rooms. They doubled the membership price at Mar-a-Lago. People now want to be in proximity to the president. Is that an impeachable form of corruption?
I think it is. When you drew my attention to the Berlusconi comparison and the data, I was kind of blown away by it because, as I think you were showing me, it’s not as though on one given day Berlusconi got a payment from one person or another person, but over the course of his time in office—remind me of what the number was?
I think it added up to 1 billion euros. People pay 1 to 2 percent more in ad rates on the TV stations Berlusconi owns. So at any given deal you can really see it. It’s so small.
It’s foreign officials staying in those hotels in order to, essentially, get money to the president, that looks like a violation of the Emoluments Clause, and it definitely looks like a form of insidious corruption. An interesting question is: What if it’s just ordinary people who want to say that they’ve stayed in a Trump Hotel because he’s the president? Trump’s whole business model is based on the branding, and the brand itself has presumably, pre-impeachment, increased in value by virtue of his becoming president.
His children are still running the business. It’s not like he distanced himself or put himself in a blind trust. Arguably, that is itself a form of public corruption. Whether that’s impeachable I think would be a debatable question. But I think there’s a case to be made, just as you described Berlusconi doing it, a presidency that’s basically run for the private profit of the president is a kind of corruption in the deepest sense. I think the Founding Fathers would’ve seen that as a form of corruption.
The market price of a room in the hotel is going up. They want to be connected to the Trump golden touch, and they want to say they stayed there. Just based on availability, he can charge more.
The charging more means something also because it’s a way to quantify, in economic terms, the gain that the president got from getting elected president. If you look at the price a room in that hotel with no Trump as president, and you compare it to the price with him as president, the difference between the two prices is the bump he got from becoming president. In some way, that could stand in for the degree of public corruption. I think one way that he could’ve avoided this was not to raise prices in the hotels. We might still have the question of foreign officials who stayed there. I don’t think that the president can’t own a business, but the question is: Can he benefit in that business from the fact that he’s president? Can that be part of his branding? I think that’s a closed question. It’s not a simple point at all.
Impeachment article No. 2—what’s in that bucket?
Abuse of power is anything the president does that he can only do by virtue of being president that threatens the basic freedoms and capacities of other people.
Let me take a very concrete example. When Trump tweets that somebody, say, Barack Obama, has committed at least an impeachable offense and probably also a crime by wiretapping him, he’s making an allegation that as president has weight and capacity that it wouldn’t have if he were a private actor. And what’s more, because he is the head of the Department of Justice, he’s threatening somebody with the possibility of prosecution. That’s something that you can only do if you’re president, and if you are doing that without evidence and in order to advance your own interests, that’s a classic example of an abuse of power.
He just did it the other day again with Susan Rice. He was asked in an interview, Do you think Susan Rice committed a crime? He took the bait and said, I think so, yes. I think she committed a crime. Now, if you or I say we think Susan Rice committed a crime, that might be wrong, and it might be nasty, but we’re not in a position to call the Department of Justice and say, “Investigate and charge her with a crime.” If I were Susan Rice’s friend, I would tell her, “Go hire a lawyer because the president of the United States has said he thinks you committed a crime, so you better be in a defensive posture and start spending the money that it takes to defend yourself.” If the president does that kind of thing without any evidence, just on a whim, that is an abuse of power, and it’s a perfect of example of the kind of abuse of power that’s distinctive to the presidency and therefore is and should be an impeachable offense.
Using the intelligence agencies or the FBI to investigate people for political reasons is an abuse of power.
Absolutely. Just through the size of bully pulpit, the president has enormous capacities to act in ways that would deeply disadvantage many, many of his opponents and enemies. Having an enemies list is itself an abuse of power. I would actually take it a bit further: I think that when the president declares the press to be enemies of the people, he’s starting to verge in the direction of this kind of abuse of power.
Don’t we have to draw a distinction between president who talks shit and the abuse of power?
One form of talking shit is literally trash-talking your opponents, and that’s fine. I mean, it’s not fine, but it’s not unconstitutional, and it’s not a violation of the president’s core function.
But the president can talk shit in a way that an ordinary politician can’t because of the consequences of what he has to say. So the allegation of criminality, which is a great example, just doesn’t fit into that category once you’re president. So candidate Donald Trump could say to Hillary Clinton, You ought to be in jail, but let’s imagine that he’s running for re-election and he says, “I believe that you’re guilty of crimes.” That could trigger an investigation of the person. That means that the exact statement with the same exact words have a different effect—I would say an unconstitutional effect—because they’re said by a person who is in fact the president at the time. That’s where I would draw the line very, very clearly.
Also, there is a difference between saying mean things about you—saying you’re an idiot, you’re ineffective, that you’re sad, you’re pathetic, if you’re John McCain that you finished last in your class at the Naval Academy then got captured—and actually defaming somebody. Defamation is that condemnation of the person’s character based on conduct that’s alleged to occurred. That’s a different thing.
Don’t we want to draw a firm line about what the impeachable offense is versus just what is terrible behavior?
I think maybe here’s behind what you’re saying: Doesn’t the president have free speech?
And my answer to that is no. Under impeachment, no one’s going to put the president in jail for what he said, but when it comes to removing the president from office, he can’t say, Well, that was just me exercising my free speech. Free speech says that Congress can’t make a law punishing you for speaking, but it doesn’t say that it can’t impeach him for things that he’s said. He’s not immune from impeachment. I think that’s sort of the punchline. The president is never immune from impeachment.
And saying that all of your political opponents, at one point or another, belong in jail does cross that line?
It absolutely crosses the line. It’s great to have free speech values, and Trump should never be put in jail for things that he’s said. I would very strongly defend his free speech rights repeatedly, and with my nose held during the campaign, but it’s not true that he’s immune from being impeached.
Our third bucket is undermining the rule of law, and that also gets into this whole category of democratic norms. What are the potential offenses that could constitute an article of impeachment around the rule of law?
Well, let’s talk about Russia. Assume for the sake of argument that it could be shown that the president or people very close to him cooperated with Russia in hacking the Democrats during the election. Technically that’s conduct that happened before the election, so to that extent the president could make a plausible argument that it shouldn’t be considered in his impeachment.
This seems like the most obviously impeachable offense: If you proved that his campaign colluded with the Russians to steal the election, the election would be illegitimate.
Elections are the most basic component we have of democracy, and to corrupt those elections by colluding with a foreign power and then give them something back I think would certainly count. Again, if the president did this while he was in office, he would obviously be impeachable for that. It’s a little trickier with respect to conduct that happened before because remember in our definition high crimes and misdemeanors are abuses of the office, so if you’re not in office, it might be criminal to take action, but it might not be technically impeachable.
Now, in the real world this may not matter. It may be that if evidence that comes out that’ll be good enough for Congress, but I would certainly think that subverting the election process is a good example of subverting democracy, so at least we should start there.
Trump, at the moment, seems to be making some efforts to show that he’s not favoring Russia.
Well, that’s smart of him, and maybe he could offer it as some kind of a defense if this situation further arises. But I do think that the corruption of the electoral process would be a classic example of this kind of third bucket of impeachable offense.
I would add with that the systematic attack on the press. The press is in the Constitution. Members of the press are not part of the government, but that doesn’t mean they don’t fulfill the role of a core constitutional function. Calling them the “Fourth Estate” is a metaphor, but in an important way it’s also true that the press is essential to the functioning of democracy. The Framers knew that, and that’s why they gave the press special protection in the Constitution. Without them, without a free press, you don’t have a functioning democracy. There are no examples in the world of functioning democracy without a free press.
The president says that the press are enemies of the people, all of them, systematically. That weakens our capacity to act democratically. If you look at places where in recent years we’ve seen democracy eroding—take Turkey as a great example—one of the ways that that erosion has happened is through subtle, careful, slow undercutting of press freedom. It’s not always by actions that today would be seen as clearly violating the First Amendment. It’s a phone call from the president to the owner of the newspaper who calls the editor who says that columnist is kind of pushing the envelope. You hear about that and you say, Well no one’s actually violated a law. It’s not clear you could litigate that in the United States. That is how you undercut free speech at first. I heard about these things in Turkey four or five years ago, and I thought to myself, This is bad, but it doesn’t yet rise to the level of subverting democracy. Then a few years later it did.
I don’t think the press is going to like the idea that a president might be impeached for attacking us. We always think the remedy is more speech.
I’m not talking here about criminalizing the president’s actions. I’m talking about holding him accountable under the rubric of impeachment. The real purpose of impeachment at the deepest level is for Congress to express its beliefs about what the right way to be president is with respect to respect for democracy and the rule of law.
Trump doesn’t have to bend over backward to say how much he loves the press, but it includes not taking actions that are effectively intended to curtail press freedoms, to frighten the press, especially through corporate pressure, into ceasing to be effective critics. That is how democracy erodes. That may make people uncomfortable, but I think it’s making people uncomfortable because they’re mistakenly taking the free speech paradigm of the First Amendment and applying it supervision of the president through impeachment. This is not about punishing the president; it’s about assuring that the governmental system that respects a free press continues.
How do you maintain the sense that impeachment is extraordinary and a tool that you use in extraordinary circumstances?
It’s worth noting that to some extent we’ve already gone down that road, and that is what happened to Bill Clinton. I have no doubt if there had been any point at which the Republicans could’ve gone after Barack Obama, they probably would have.
I don’t think that Trump’s activities are so ordinary that going after him would set a precedent for everybody in office being sought for impeachment. We’re talking about concrete enrichment of the president while in office, which has not been the case for other people and is unlikely to be the case for other presidents in the future. We’re talking about abuses of power with respect to allegations of crimes that have never been undertaken, to my knowledge, by any president in this way. And if something to do with the Russian allegations is shown, we’re also talking about a form of corruption of the democratic process that, with the exception of Nixon, has not been shown of a sitting president. You have to focus on these cases because if you don’t use the impeachment process now, there is a question of what’s the point of having it at all.