SEVEN

THE CASE OF TRUMP

As a special counsel is investigating possible wrongdoing by our 45th president, Donald Trump, we can apply the lessons derived from the history of presidential impeachments to the present historical moment. Of course, it is difficult to say anything definitive. At this writing we do not know what Special Counsel Robert Mueller will report about collusion between the Trump campaign and Russia, or obstruction of justice with respect to the Russia investigation.^* We do not know what information other investigations of Trump (and his personal lawyer, Michael Cohen) will yield, or what new facts may be unearthed by the media.

President Donald Trump

Accordingly, all we can do is address the principal allegations against President Trump and consider whether, if they turn out to be true, they justify impeachment and removal. We start with the one that gave rise to the appointment of the special counsel.

COORDINATING WITH RUSSIA

Robert Mueller was appointed to investigate ties between the Trump campaign and Russia, in particular the possibility that Russia or Russians conspired to help Trump win the 2016 presidential election. That Russians did in fact perpetrate covert operations to influence our election, including hacking into the e-mails of Hillary Clinton’s campaign staff and disseminating embarrassing material, using droves of false social media accounts, and illegally spending millions in online advertising, has been determined by multiple United States intelligence agencies. (It is illegal for non-citizens to make campaign contributions or independent expenditures in U.S. elections.) The full extent of Russia’s covert activities, and the degree to which Trump and his staff knew about, encouraged, or assisted them, remain open questions.

Several members of the Trump campaign had contacts with Russians that they initially denied. These include Michael Flynn, briefly Trump’s national security adviser until he was forced to resign and later indicted by Mueller precisely because he falsely denied such contacts. In addition, we know about an exchange of e-mails between Donald Trump Jr. and an attorney with ties to the Russian government who assured him that the Russians had damaging information about Clinton. Trump Jr. replied, “I love it.”¹ A meeting subsequently took place involving that attorney, Trump Jr., President Trump’s son-in-law and close aide Jared Kushner, and Paul Manafort, then chairman of the campaign. (Manafort was subsequently convicted for various federal offenses, though none of the charges were directly connected with the Trump campaign.)

We know, too, that candidate Trump called on Russia to “find Hillary’s e-mails”—likely in jest, but at a minimum showing an alarming insouciance about foreign involvement in a U.S. election.² He also refused to criticize Russia’s dictator, Vladimir Putin, even resisting pointed invitations to do so. For example, when confronted by talk show host Bill O’Reilly with the fact that “Putin is a killer,” the candidate replied, “There are a lot of killers. We have a lot of killers. You think our country is so innocent?”³ A candidate who did not hesitate to criticize prisoners of war (saying of John McCain, “I like soldiers who weren’t captured”)⁴ and gold star mothers, among many others, seemed unable to muster harsh words for a former KGB operative and present-day dictator antagonistic to the United States.

Unusual behavior toward Russia continued after Trump’s election (though intermixed with the imposition of sanctions for Russian misconduct). Trump publicly questioned the findings of numerous U.S. agencies that Russia had interfered with the 2016 presidential election, and seemed to accept at face value Putin’s self-serving denials. He called the Russian dictator to congratulate him for winning what most observers considered his own sham election, something Trump’s advisers allegedly urged against.

Allegations that a presidential campaign worked with a foreign adversary to affect the outcome of a U.S. election cannot be pooh-poohed. Elections are the lifeblood of democracy. If they aren’t free, neither are we. Of course, not all “coordination” with a foreign government would constitute impeachable conduct. Suppose, for example, a presidential candidate openly urged a foreign leader to support him based on the mutual interests of their two nations, and the leader’s support consisted of public declarations of his or her preference for that candidate. This might be unseemly, but American voters could make that judgment for themselves.

The problem is graver where coordination is covert (and all the more so when it involves illegal activity, such as hacking the computers of opponents or exploiting social media in ways that may violate campaign finance laws). Covert coordination could subject the president to manipulation or coercion by an adversary, since revelations might be devastating to him.

At the Constitutional Convention in 1787, James Madison observed that the impeachment option was necessary because, among other evils, the president “might betray his trust to foreign powers.”⁵ Fellow delegate Gouverneur Morris echoed this concern, noting that a president “may be bribed by a greater interest to betray his trust; and 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.”⁶

In sum, complicity in a foreign government’s operations against our elections is a close cousin of treason and certainly a basis for removing a president.

This conclusion might seem to go without saying, except some have suggested that conspiracy with the Russians would not be impeachable because it involved behavior that preceded Trump’s term in office. That view is surely mistaken. Even if pre-office behavior generally cannot justify impeaching a president, there must be an exception where his improper activity helped get him elected. Otherwise, candidates could achieve office illegitimately, then thumb their noses at critics and declare that it is too late to do anything about it.

A few judges have been convicted for behavior that preceded their tenure in office, including one fairly recently. In 2010, the Senate convicted Judge Thomas Poreteus by a vote of 96–0 on four articles of impeachment, three of which involved conduct preceding his term as a federal judge. Significantly, one of Porteus’s offenses involved making false statements to the Senate and the FBI in connection with his confirmation. Unless that is ground for removal, nominees would know that they could lie their way into office and safely remain—just like a president whose improper actions facilitated his or her election.

But what happens if Trump’s family members and campaign aides worked with the Russians while Trump himself knew nothing about it? On the one hand, it seems that a president should not be impeached because of the misconduct of subordinates. In his aforementioned book about impeachment, Professor Charles Black put it plainly: “We have to remember that it is the president who must be found guilty of ‘high Crimes and Misdemeanors.’”⁷ The most upright presidents have had corrupt subordinates. Even George Washington lost a cabinet member to scandal.

But, as Professor Black went on to say, “The president (like anybody else) is totally responsible for what he commands, suggests, or ratifies.”⁸ If campaign aides coordinated with Russia at Trump’s urging, or with his approval, even if the latter was given only with a wink or knowing nod, he himself is effectively guilty of working with an adversary to affect a U.S. election. Indeed, if Trump knew about his campaign’s coordination with Russia, and did not demand that it cease, he committed an impeachable offense regardless of whether he affirmatively expressed approval of the misconduct.

Professor Black also noted that “when carelessness is so gross and habitual as to be evidence of indifference to wrongdoing, it may be in effect equivalent to ratification of wrongdoing.”⁹ Or as then-Congressman James Madison put it, the president is responsible for the conduct of his executive branch subordinates and must be “subject to impeachment himself, if he suffers them to perpetrate with impunity high crimes and misdemeanors against the United States, or neglects to superintend their conduct, so as to check their excesses.”¹⁰

It is worth noting, in this connection, that one of the articles of impeachment against Richard Nixon, adopted by the House Judiciary Committee, cited his “failing to act when he knew or had reason to know [of] his close subordinates” acting improperly. Deliberate ignorance is no defense. If Trump did not know about his campaign’s improper actions because he did not want to know, preferring to maintain deniability while not discouraging shenanigans, and his nonchalance encouraged his aides to engage in wrongdoing, he could be held responsible.

One might plausibly counter that creating an environment in which subordinates feel free to cultivate foreign interference is too vague a charge to justify impeachment. If faced with this question, members of Congress would have to decide, based on all the available evidence, whether the wrongdoing by the campaign could fairly be traced back to actions (or inaction) by the president.

Caution is in order about removing a president absent confidence in his complicity, but such caution must be mitigated by a consideration specific to the “tainted election” context. Let us suppose, hypothetically, that the Russians not only attempted to tip the 2016 presidential election with the assistance of the Trump campaign, but succeeded—in other words, Trump might have lost but for their efforts. Under that circumstance, we effectively had an illegitimate election. Yet, apart from impeachment, the Constitution offers no remedy for this obviously unacceptable situation: It contains no provision for contesting a presidential election or calling for a new one after the president has been sworn in.

Accordingly, if covert foreign operations help elect a president, that candidate illegitimately wins while our democracy loses. If, however, the candidate’s campaign engaged in wrongdoing, the presumption against impeachment must be balanced against the need to preserve the legitimacy of our electoral system. If Trump’s family and aides worked with Russia in an effort to win the election, Congress should give careful consideration to how to respond, even absent proof implicating Trump directly. Under normal circumstances, the president should get the benefit of the doubt. But a president who takes office on account of foreign interference abetted by his own campaign may not be so entitled.

OBSTRUCTION OF JUSTICE

Whether or not the Trump campaign conspired with Russia’s covert operations to tip the 2016 presidential election, evidence suggests that members of the campaign and later the White House staff impeded investigations into such allegations. Donald Trump Jr. apparently made false statements about his meeting with a Russian lawyer, and the president apparently helped draft a misleading statement about the meeting. And, according to President Trump himself, he fired FBI director James Comey in part because of Comey’s persistence in investigating such allegations.

If conspiracy with Russia’s attacks occurred, obstruction of justice may seem redundant—the underlying offense would justify impeachment even without a cover-up. But the question arises as to what happens if no underlying misconduct can be demonstrated. We often hear the adage that the cover-up may be worse than the crime, but can there be a cover-up with no crime? The answer is yes. Perhaps some members of the Trump campaign or administration did not know whether other members coordinated with Russia’s espionage, and wanted to make sure that U.S. investigators did not find out either. Alternatively, they may have wished to prevent disclosure of activities that, while not involving crimes, were embarrassing. Regardless of motivations, anyone who knowingly impeded an official investigation—whether by the FBI, Congress, or the Office of the Special Counsel—potentially obstructed justice. If President Trump himself obstructed justice, that is surely ground for impeachment. In fact, obstruction of justice was the basis for articles of impeachment against both Nixon and Clinton.

Of course, the alleged obstructions by Nixon and Clinton were not equivalent: Nixon’s concerned investigation of a burglary by his election committee, Clinton’s his relationship with Monica Lewinsky. One could reasonably believe that any obstruction by Clinton with respect to a private matter did not rise to the level of an impeachable offense. The potential obstruction of justice by Trump resembles Nixon’s more than Clinton’s, insofar as the underlying investigation concerned covert foreign operations against the United States and an illicit effort to manipulate the 2016 presidential election.

Trump’s potential obstruction of justice involved a range of actions. According to former FBI director Comey, at a meeting attended by many principals, Trump cleared the Oval Office of everyone else so he could privately ask Comey not to prosecute Trump’s former national security adviser, Michael Flynn. President Trump also allegedly enlisted leading intelligence officials to publicly deny the existence of evidence of coordination with Russia during the 2016 election.

Trump defenders have observed that the president, as the head of the executive branch, not only has the authority to request that the FBI director drop a particular investigation, but could lawfully order him to do so. Similarly, the president has virtually unlimited discretion to fire the FBI director or anyone else under him in the executive branch. As noted in the introduction, Trump’s attorney, John Dowd, insisted that the president cannot obstruct justice because he is the chief law enforcement officer under the United States Constitution.

This may be true as far as it goes. As a general proposition, the president cannot be criminally charged for exercising power given to him by the Constitution, even after he leaves office. (There may be exceptions—for example, if the president accepts bribes in connection with the exercise of his or her authorized powers.) In this case, President Trump cannot be prosecuted for firing James Comey or otherwise impeding an executive branch investigation. But that does not immunize him from impeachment. As we have discussed, a president can commit an impeachable offense without violating the law.

To be clear, just because the president has the power to do X does not preclude him from being impeached for doing X if he exercises his powers for illegitimate reasons. For example, the president has the constitutional authority to pardon everyone who is in prison, or to refuse to speak with any foreign leaders, but few dispute that such exercises of constitutional authority could be legitimate grounds for impeachment.

This point requires emphasis because it is a subset of a larger issue, sometimes framed as whether the president is “above the law.” No one is above the law. To say that the president generally cannot be criminally charged with obstruction of justice is not to place him above the law; it is the law—the Constitution gives the president authority to make executive branch decisions, and thus such decisions, by themselves, cannot constitute crimes. (Though again, the president who accepted a bribe to issue a pardon or take other action could be charged with bribery after he left office.) But the more important point is that, even if the law insulates the president from criminal punishment for exercising the powers of his office, there remains a constitutional remedy when he abuses those powers: impeachment.

If the facts unearthed suggest that President Trump fired James Comey because the latter pursued a legitimate investigation, or tried to prevent him from doing so through other means, and took such actions solely to protect himself or his political allies, such actions would indeed constitute impeachable offenses.

The same holds true, only more so, if Trump fires Special Counsel Mueller. Department of Justice regulations dictate that the special counsel can be removed only due to “incapacity, conflict of interest, or other good cause,” and only by the attorney general—or in this case the assistant attorney general, Rod Rosenstein, since Attorney General Jeff Sessions has recused himself from the Russia investigation. But Trump has reportedly considered circumventing these regulations. He could fire Sessions and/or Rosenstein, expecting the replacement to fire Mueller.^* Or, as head of the executive branch, he could order whoever at the Department of Justice (DOJ) is in charge of the special counsel investigation to revoke the DOJ regulations creating the office and then to fire Mueller without the need for good cause. Any action designed to derail Mueller’s investigation, however, would justify impeachment unless Mueller has acted improperly or the president has another legitimate reason rooted in the national interest. If a president prevents a prosecutor from doing his or her job because he feels threatened, he obstructs justice indefensibly.

It is true that President Nixon was not impeached for the firing of Special Prosecutor Cox (although the Saturday Night Massacre increased calls for impeachment and may have marked a decisive moment in Nixon’s downfall). However, Nixon’s new attorney general appointed another special prosecutor to replace Cox. If Trump replaced Mueller with someone equally independent, the case for impeachment could be reduced, at least if he could articulate a reasonable basis for the move.

ABUSE OF THE PARDON POWER

President Trump’s pardon of his political supporter, former Arizona sheriff Joe Arpaio, has been cited as a basis for impeachment. To a lesser extent, his pardon of Lewis “Scooter” Libby, a former adviser to Vice President Dick Cheney, has also been deemed problematic by some commentators. In order to determine the propriety of these pardons, we need to consider the scope and purpose of the pardon power, which requires placing it within its larger constitutional context.

Reflecting the commitment to individual liberty and protection against tyrannical government, the drafters of the Constitution provided a number of shields before an individual can be punished for violating United States law. First, a grand jury must find a probable violation of a preexisting law that made sufficiently clear that the conduct in question was forbidden. A trial judge must then allow the case to go forward, a jury must find guilt beyond reasonable doubt, and the judge must determine that the jury’s verdict is supported by the evidence. Only after all that may the United States brand someone a criminal. Even then, the defendant may avoid punishment if the president decides to offer clemency.

Article 2, Section 2, Clause 1 gives the president “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Apart from the impeachment exception, the president’s power to pardon is absolute, but it does not follow that all pardons are acceptable. A president who pardons someone in exchange for a cash gift clearly could be impeached. He or she would have committed bribery, an explicitly impeachable offense. (A governor, Oklahoma’s J.C. Walton, was in fact impeached and removed in part for selling pardons.) Even pardons that violated no laws could be impeachable. As emphasized, legal behavior may constitute high crimes and misdemeanors for constitutional purposes. Conceivably, Richard Nixon violated no laws when he asked the IRS to harass his opponents. Presidents have the authority to instruct the IRS, just as they have the power to issue pardons, but exercising such authority contrary to the spirit of justice and rule of law may trigger impeachment. So too with pardons: A particular pardon may be improper, notwithstanding the president’s authority to issue it. But when is a pardon improper?

The principal purpose of the pardon power is clear: It promotes justice and mercy. Sometimes a trial judge or jury gets it wrong. Sometimes they get it right at the time, but new circumstances arise that put the decision or sentence in a different light. And at times, the feeling arises that the defendant justly sentenced has nevertheless suffered enough.

Alexander Hamilton’s discussion in Federalist 74 reinforces the justice and mercy rationale. Hamilton endorsed the “benign prerogative of pardoning” because “the criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”¹¹ This elevated language expresses a straightforward idea: The law can be too harsh in particular cases. Hamilton’s phrase “unfortunate guilt” captures the person either innocent, or guilty but with extenuating circumstances. In the former case, the pardon reverses injustice. In the latter case, Hamilton says, the pardon provides “a mitigation of the rigor of the law,” showing “the mercy of the government.”^*12 But it isn’t just justice and mercy. Beyond doing right by the individual involved, pardons can serve the public interest. For example, Hamilton cited pardons to defeated insurgents and rebels that could “restore the tranquility of the commonwealth.”¹³

The very first use of the president’s pardon power, by Hamilton’s boss George Washington, dovetails with Hamilton’s senses of its purposes. After the army put down the Whiskey Rebellion, Washington pardoned all the rebels who had violently protested against the whiskey tax. They had committed acts of arson and even tarred and feathered tax collectors, but Washington understood that they got carried away in the face of a threat to their livelihood. When pardoning them, he explained that he felt the need to show “every degree of moderation and tenderness” that would not jeopardize national safety, especially when doing so would promote national reconciliation.¹⁴

Other founding fathers were similarly merciful against people whose understandable passions or fears got the better of them in the public arena. John Adams pardoned those involved in Fries’s Rebellion, and Thomas Jefferson and James Madison pardoned deserters from the Revolutionary War and the War of 1812, respectively.

Beginning in roughly 1885, presidents regularly gave reasons for their pardons. On occasion, they cited the likely innocence of the man convicted, usually established by new evidence. More typically, they felt the recipient of the pardon had suffered enough. Often presidents cited the man’s sickness or his family’s dependence on him. Other recurring justifications for pardons included youth or old age, illness, and pregnancy.

In addition, presidents continued to make post-war pardons for their healing effect on the nation. In a 1927 Supreme Court case upholding President Taft’s commutation of a death sentence, Justice Oliver Wendell Holmes wrote that a pardon amounts to the president’s determination “that the public welfare will be better served.”¹⁵ Gerald Ford defended his pardon of Richard Nixon on that basis, claiming the nation would have suffered from the criminal prosecution of Nixon, both because he (Ford) would have been consumed by the matter and because it would have reopened ugly wounds. Ford also noted that Nixon, as the only president ever forced from office by scandal, had suffered enough.

Justice, mercy, and the public interest thus were and are the main bases for pardons. The problem is that pardons can produce injustice rather than justice and harm rather than benefit the public interest. Alexander Hamilton recognized as much, lamenting the use of the pardon “to shelter a fit object of [law’s] vengeance.”¹⁶ This will happen, Hamilton suggested, when the president indulges in favoritism, bending to his own biases or the beseeching of others.

What does all of this tell us about President Trump’s pardon of Sheriff Joe Arpaio? Arpaio violated a federal district court order that he stop detaining individuals solely based on the belief that they were in the country illegally, a practice that many thought involved racial profiling. As a result, following a bench trial he was convicted of criminal contempt. President Trump pardoned Arpaio prior to sentencing, and a White House statement explained the basis of the pardon:

Throughout his time as sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration. Sheriff Joe Arpaio is now 85 years old, and after more than 50 years of admirable service to our nation, he is a worthy candidate for a Presidential pardon.¹⁷

The statement does not defend Arpaio’s underlying criminal acts, nor suggest that punishment would be too severe. (He faced a maximum term of six months.) It does make reference to his age, which could be seen as gesturing toward mercy, but the statement suggests the pardon primarily was a reward for public service, an aim that does not comport with the usual rationales behind the pardon power. President Trump viewed Arpaio as an ally in the fight against illegal immigration, not to mention a vocal political supporter. Accordingly, we should recall Hamilton’s warning against use of the pardon power as an act of favoritism. Moreover, Trump’s decision to pardon Arpaio raises separation of powers concerns insofar as Arpaio’s crime was contempt of the judicial process and his underlying action impeded the judiciary’s effort to provide victims of unlawful discrimination with a remedy. His pardon suggested President Trump’s willingness to compromise constitutional norms to reward an ally.

That said, the pardon of Arpaio is not by itself impeachable. The framers intended the pardon power to be broad, and while the pardon of Arpaio may be regrettable, the idea of generosity toward an octogenarian with a long career in law enforcement, the stated rationale for the pardon, cannot be said to be beyond the constitutional pale. Indeed, the last several presidents all delivered pardons as controversial and dubious as the pardon of Arpaio.

Much of the above also applies to Trump’s pardon of Scooter Libby, a former high-ranking White House official convicted in 2007 of several charges based on lying to a special prosecutor investigating the leaking of the covert identity of a CIA agent. The official statement accompanying the pardon cited “credible evidence” of Libby’s innocence and his “more than a decade of honorable service to the nation.”¹⁸ While, as noted, the latter is not a traditional basis for a pardon, both of these justifications fall within the president’s broad prerogatives.

Concern stems from suspicion that the real motive for the Libby pardon was to signal several former Trump aides, either indicted or under investigation, that if they held steady and declined to offer prosecutors evidence of the president’s wrongdoing, they would be rewarded with pardons of their own. If that were indeed the principal motive, it would amount to using a presidential power for the purpose of impeding law enforcement—surely justifying impeachment. It would, however, be exceptionally difficult to prove that this was the president’s motive, and Congress should not impeach based on suspicion.

Media reports indicate that President Trump has inquired about the viability of pardoning himself. Knowing that a self-pardon is a possibility down the road, the issue warrants discussion.

Questions about the propriety of a self-pardon have kicked around since the final days of the Nixon presidency in 1974, when his Office of Legal Counsel issued an opinion that he lacked that authority. Several pardon attorneys and other experts, including Solicitor General Robert Bork, disagreed. The issue arose again at the end of George H.W. Bush’s term in 1992, when Bush’s pardon of government officials involved in the Iran-Contra affair prompted speculation that he might pardon himself. Experts were again divided on whether a president has that authority. Ditto when the question emerged during Bill Clinton’s travails.

When word got out in July 2017 that President Trump had asked his lawyers about the self-pardon, legal experts again produced a split decision. Interestingly, some on both sides regarded the question as a no-brainer. Alan Dershowitz criticized both sides: “Can the president pardon himself? The answer is crystal clear! And anyone who gives you a different answer is misleading you, because there is only one correct answer. Here it is: Nobody knows!”¹⁹

Dershowitz has a point. The founding fathers did not address the self-pardon question, no president has attempted to pardon himself, and no court has addressed the question. How is it, then, that experts on both sides seem cocksure? The answer is that each side has at its disposal a powerful argument that, seen a certain way, looks self-evident.

Those who say that President Trump can pardon himself cite the Constitution’s unambiguous language. As noted, Article II places no limits on whom the president may pardon. While unclear textual provisions demand interpretation, clear ones demand obedience. Moreover, if the framers started placing limits on the pardon power, where would they stop? If it is absurd for someone to pardon himself, isn’t it also problematic to pardon one’s family? How about close friends and associates? To start down this slippery slope would create difficult distinctions and erode the president’s authority as the last safeguard against criminal punishment.

But the opposite argument is also strong, rooted in the age-old principle that no person shall be a judge in his or her own case. Blackstone, the great British legal historian, considered this a sacred principle, and our founding fathers cited it routinely, including James Madison in The Federalist. Moreover, the U.S. Constitution directly played a variation on this theme. The vice president presides over the Senate with one single exception: during an impeachment trial of the president. (In that instance, the chief justice presides.) The framers recognized a disqualifying conflict of interest preventing the person next in line from presiding over the president’s trial, but the conflict is obviously even greater if the president pardons himself.

Note that the Constitution does not state that the vice president cannot preside at his own impeachment trial. That literally went without saying. It may be that the same is true when it comes to the idea of the president pardoning him- or herself.

For present purposes, it does not matter which of the competing views on presidential self-pardon is correct. Let us suppose for the sake of argument that the president does indeed have absolute pardon power, including the power to self-pardon: Any court must honor the self-pardon and forbid criminal prosecution. It does not follow, however, that the president cannot be impeached for this action. (He could not pardon himself with respect to the impeachment, for the Constitution explicitly says that the pardon power does not extend to impeachments.) To the contrary, improper use of the pardon power, like improper use of any executive branch power, could justify impeachment.

Absent a most unusual situation, a presidential self-pardon would violate rather than advance the legitimate purposes of the pardon power. As a sitting president probably cannot be indicted, any self-pardon would be prospective—granted before the president was charged, much less convicted. Thus, the president would not be self-pardoning because of wrongful conviction or an overly harsh punishment.

The pre-prosecution pardon is unusual and requires special justification, such as Gerald Ford’s belief that the prosecution of Richard Nixon would have hampered Ford’s own presidency. And Ford’s pardon of Nixon, far from supporting the idea of a self-pardon, shows why it is unnecessary. If a president perceives that his prosecution will harm the nation, there is a ready remedy: pardon by the next president, whose judgment would be less clouded by self-interest. To the extent Ford’s motives were questioned, with suspicions that he agreed to pardon Nixon in exchange for the latter resigning, it only reinforces the problems of self-pardon, which involve an even more blatant conflict of interest.

So too, there is reason to doubt that the president’s self-pardon will enhance national tranquility. Again, the next president would be the better judge of that, and more generally, the better judge of whether the pardon would serve the public interest. The self-pardon may well be motivated by something other than justice, mercy, or the public interest. More likely it will reflect self-favoritism. Few would dispute that a president who uses the pardon power solely to reward family, friends, or campaign contributors misuses it. How much more so if used for self-pardon.

That such action will typically be impeachable starts with the fact that the president who self-pardons effectively admits to guilt in underlying crimes. (The Supreme Court has said that acceptance of a pardon amounts to admission of guilt. In the case of a self-pardon, administering and accepting are inseparable.) By definition, such a president would also transgress the time-honored principle that no person can judge his or her own case.

We need to recall that the Constitution sharply separates the processes for impeachment and criminal law. The former can happen only to a sitting president and cannot result in punishment beyond loss of office; the latter can happen only to one no longer in office, and can result in incarceration. As a matter of criminal law, perhaps the president can self-pardon and thereby immunize himself from criminal punishment once she leaves office. But such action can hasten the day she leaves office because it constitutes potentially impeachable behavior. If the current president or any other should remove himself from legal jeopardy, Congress should consider removing him from political office as well.

RECEIPT OF EMOLUMENTS

Article I, Section 9, Clause 8 of the Constitution declares that no U.S. officeholder may, without consent of Congress, “accept [ ] any present, Emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign State.”

Since emoluments are generally defined as any fee or profit, and President Trump’s hotels, golf courses, and restaurants are visited by foreign leaders, the violation of the Emoluments Clause might seem to go without saying. Not surprisingly, several lawsuits (one by state attorneys general, one by members of Congress, and one by a citizen watchdog group) have been filed alleging such a violation.

The foreign Emoluments Clause, categorically worded (barring a gift or emolument “of any kind whatever”), stemmed from concern about foreigners essentially bribing U.S. officials in order to attain or increase influence. Note that the Clause bans emoluments regardless of whether there is a quid pro quo. The drafters wished for officeholders to avoid any temptation to impropriety. And while President Trump has allegedly transferred day-to-day control of his businesses to his children, he continues to visit some of these businesses—country clubs, golf courses, hotels, restaurants—and remains their ultimate beneficiary, so the potential conflicts of interest are undiminished.

In briefs defending against the lawsuits, Trump’s lawyers argue that the Emoluments Clause precludes only benefits given to the president in his official capacity or from services he personally provides, and that “fair market exchanges” involving his businesses are exempt. But these arguments seem at odds with the language and purpose of the clause.

Law dictionaries define emoluments as “monies that have been received for services given or for reimbursements”—exactly what happens when, for example, people pay for their room at the Trump Hotel. Dr. Samuel Johnson’s dictionary, published two years before America’s Constitutional Convention in 1787, defined “emolument” broadly as a “profit or advantage.” No founding-era dictionary supports a narrower definition that would exempt the patronage of Trump’s businesses. Lest there by any doubt that they intended a broad reading of the prohibition, the framers included “presents” as well as “emoluments” and, as noted, added “of any kind whatever.”

The ban on emoluments guards against foreign influence. Joseph Story, the great 19th-century Supreme Court justice and legal historian, explained that the framers so dreaded foreign influence that they “put [ ] it out of the power of any officer of government” to decide what benefits to accept from foreign countries.²⁰ President Trump stands to benefit personally from the patronage of his various businesses, presenting the real risk that foreign countries will attempt to curry favor with him through such patronage or by granting his businesses favorable treatment within their borders.

The case of President Trump’s relationship with Rodrigo Duterte, the ruthless president of the Philippines, illustrates the concerns underlying the Foreign Emoluments Clause. Duterte has reportedly ordered his police (and others) to kill thousands of people suspected of involvement in the drug trade. Trump has publicly praised Duterte. It may be that Trump sees Duterte as an ally in the war on drugs, but skeptics cite Trump’s extensive business involvements with the Philippines, including his $150 million Trump Tower in Manila.

There has also been speculation that his business interests in China have affected his decision-making. Trump had spent a fortune over the course of a decade seeking a trademark for the use of his name in construction projects in China. Shortly after he took office, the Chinese government granted him preliminary approval, made final two days after Trump confirmed that he would not pursue the “two-China” policy that the Chinese vehemently oppose. China has since approved dozens of Trump trademarks, and he has not kept his campaign promise to seek punishment of China as a currency manipulator.

Coincidence? Quid pro quo? Thanks to the Emoluments Clause, we should not be put in the position of trying to determine that. The Philippines and China present only two examples of how President Trump’s business interests could affect how he treats foreign nations and vice versa. His business interests extend around the globe. It does not follow that someone in Trump’s position cannot serve as president. He could seek congressional approval (which the Emoluments Clause explicitly authorizes) or divest his holdings.

We have been focusing on foreign emoluments, but there is also a potential problem resulting from Trump’s extensive business activities within the United States. Article II, Section 1, Clause 7, the so-called “Domestic Emoluments Clause,” refers to the president’s salary and says he “shall not receive [during his term in office] any other emolument from the United States or any of them.” Trump’s businesses have received numerous benefits from states, such as discretionary tax credits, in possible violation of the prohibition on domestic emoluments. (These, too, are alleged in the various lawsuits against him.)

In Federalist 73, Alexander Hamilton discussed the Domestic Emoluments Clause. Hamilton considered it self-evident that the president should receive no benefits other than his salary, including no emoluments. Rather, the president’s sole interest should be the good of the country, uncompromised by conflicts created by possible private gain: “He can, of course, have no pecuniary inducement to renounce or desert the independence intended for him by the Constitution.”

President Trump’s domestic business interests arguably violate this principle. All 50 states are motivated to take actions, directly or indirectly, that affect Trump’s financial holdings. Indeed, even if they wanted to, states could not avoid taking actions that affect his interests, since routine fiscal and regulatory measures necessarily have such an effect.

If Trump is in violation of the foreign or domestic emoluments clauses, a strong case can be made that he has committed an impeachable offense. After all, these clauses are part of the Constitution itself.

And yet, Trump’s receipt of emoluments does not warrant impeachment at this time. Case law on the emoluments clauses barely exists and Trump is entitled to a court finding of his alleged violations. Some Trump supporters have floated the argument that the Foreign Emoluments Clause does not apply to presidents. While this and other defenses against Trump’s apparent violations may seem strained, they could yet prevail. Or courts may find that no one has standing to bring such claims, in which case Congress should address the matter. (Two courts have weighed in on this issue, reaching opposite conclusions about standing.)

Impeachment on the basis of unconstitutional receipt of emoluments should be considered only if President Trump fails to comply with a relevant court order or a determination by some other qualified body such as Congress or his own Office of Legal Counsel.

PAYOFFS TO STORMY DANIELS AND KAREN MCDOUGAL

The criminal conviction of Trump’s personal attorney and “fixer,” Michael Cohen, yielded another possible basis of impeachment. On August 21, 2018, Cohen pled guilty in federal court to eight charges, two of them stemming from payments to porn star Stormy Daniels and former Playboy model Karen McDougal ($130,000 and $150,000, respectively) in exchange for their silence about alleged trysts with Trump. Because the payments were made during the latter stages of the 2016 presidential campaign and were motivated by a desire to assist Trump’s candidacy, they constituted a violation of campaign finance laws—an in-kind contribution to the Trump campaign that wasn’t reported and that vastly exceeded the maximum contribution of $2,700.

For present purposes, the crucial question concerns Trump’s participation in these violations. He has denied the relationships, and knowledge of the payments in advance, but in open court Cohen declared that he made the payments at Trump’s behest. If Cohen is telling the truth, would Trump’s behavior be impeachable?

The answer is no, with respect to the alleged affairs themselves. A president’s adulterous relationship before he became president is less malignant than actions by Bill Clinton that should not have given rise to impeachment. (Clinton’s affair with Monica Lewinsky occurred while he was in office and gave rise to perjury.) Trump’s possible complicity in the violation of campaign finance laws is more significant. It may seem that such actions, though potentially criminal, are too minor to amount to impeachable offenses. As we have noted, statutory crimes do not automatically qualify as constitutional high crimes and misdemeanors.

However, the alleged conduct here involves more than a technical violation of campaign finance laws of the sort routinely committed, often inadvertently, by political campaigns. Here, the payments of hush money were apparently designed to prevent the dissemination of information that could have affected the outcome of the election. If the president was involved in such conduct, impeachment could be justified.

CONCLUDING THOUGHTS

Of the various charges leveled against President Trump, conspiracy with Russia and obstruction of justice are the ones that, if such behavior occurred, most clearly merit impeachment. At least based on the evidence developed thus far, his other allegedly improper actions probably do not independently justify Trump’s impeachment. However, it does not follow that the non-impeachable actions are irrelevant if and when Congress contemplates impeachment.

We must keep in mind the “rotten store” metaphor discussed in connection with Richard Nixon, the idea that a pattern of improper actions forfeits the president’s presumption against impeachment. In this connection, we must observe the wide range of conduct by president Trump, including not only actions discussed above but also seeking to prevent Muslims from entering the country; pressuring his attorney general to resign because the latter recused himself rather than do the president’s bidding with respect to the special counsel’s investigation; recklessly accusing former President Obama of ordering wiretapping of Trump Tower; attacking the Justice department, FBI, and individual federal judges; downplaying the actions of white supremacists; and waging an assault on the media (including calling them “the enemy of the people” and threatening to restrict their freedom) that arguably contradicts the spirit of the First Amendment.²¹

People may disagree about the extent of impropriety of some of these actions, but the overarching point should be uncontroversial: If members of Congress are uncertain whether any of the president’s specific offenses warrant his removal, they may consider whether the administration has systematically compromised constitutional and democratic norms and the dignity of the office.

* Some commentators have emphasized that there is no specific crime of “collusion” in the federal code. While this is true, it is not directly relevant to the impeachment inquiry because, as repeatedly noted, a formal crime is not necessary for impeachment purposes. However, to avoid confusion, I will avoid the word “collusion” henceforth, referring to “coordination” or other synonyms for collusion.

* The DOJ regulation would still require good cause for the attorney general or acting attorney general to fire Mueller. During Watergate, a similar regulation safeguarded Special Prosecutor Cox from discharge absent “extraordinary improprieties.” When several members of Congress brought suit following Cox’s removal, a federal judge in the District of Columbia declared the discharge illegal. The court of appeals ruled the matter moot when Nixon resigned.

* In that same vein, in an 1833 Supreme Court opinion, Chief Justice John Marshall termed the pardon “an act of grace.” A Court opinion in 1855 called it “an act of mercy flowing from the fountain of bounty and grace.” United States v. Wilson, 32 US 150 (1833) [after “an act of grace”]; United States v. Athens Armory, 35 Ga. 362 (1855) [after “an act of mercy”].