Has Donald Trump Committed High Crimes and Misdemeanors?

Has Donald Trump Committed High Crimes and Misdemeanors?

Has Donald Trump Committed High Crimes and Misdemeanors?

Rep. Jamie Raskin, a noted constitutional scholar—and member of the House Judiciary Committee—discusses the question.


With the release of the redacted report from special counsel Robert Mueller, the House Judiciary Committee is wrestling with questions about how to address evidence that a sitting president has engaged in abuses of power. Some of the issues are similar to those that led the committee to approve articles of impeachment against Richard Nixon in 1974. Others are unique to Donald Trump. To get a sense of how the committee might address Trump’s wrongdoing, and what upcoming hearings may reveal, I spoke with committee member Jamie Raskin. Before his 2016 election as a Democratic representative from Maryland, Raskin was a professor at American University’s Washington College of Law and one of the nation’s most distinguished commentators on constitutional questions. Here is some of what he said about how the committee and the American people should approach one of the most awesome of those questions.

john nichols: How should we be thinking about impeachment?

jamie raskin: It’s the people’s and the Congress’s final instrument of self-defense against a president who is trampling the rule of law and assuming the powers of a king. It has both legal and political dimensions. The legal aspect requires us to ask whether there have been high crimes and misdemeanors such as treason or bribery, which I take to mean grave offenses from on high of a public character against the democracy itself. The political part requires us to ask whether the public interest demands impeachment and conviction as a remedy to stop a pattern of misconduct that is contemptuous of the rule of law and our Constitution. If it were a purely legal judgment, it would have been assigned to the courts in Article III, but the founders rejected that idea and located it in Article I, with Congress.

From the beginning of the administration, I’ve said impeachment should not be a fetish for anybody, but it should be a taboo for nobody. At this point in events, we have to be taking it very seriously.

What people sometimes miss is that impeachment takes the question of holding presidents to account out of the paradigm of crime and punishment. The president is not punished by virtue of impeachment as he would be with a prosecution. He doesn’t go to jail. He may face prosecution separately, but this is about defending our Constitution by removing a president who has become an intolerable threat to the people and our form of government.

There can be real risks attendant to impeachment, as when it acts like a partisan hit over low crimes and misdemeanors, which is what happened with Bill Clinton. But there are real risks attendant to not impeaching when a president is systematically thwarting the rule of law and destroying constitutional norms. If you read David Stewart’s book about Andrew Johnson, I think you will come away with the sense that Johnson was an egregious threat to the Constitution, to the rule of law, and to Reconstruction, and he absolutely should have been impeached, convicted, and removed. Johnson’s escape from this fate by a single vote in the Senate was a tragedy for America and especially African Americans.

JN: When did you start thinking about impeachment in terms of Donald Trump?

JR: After my election in November 2016, when it became clear that Trump was going to be president, I had a sense that my service would call upon all of my constitutional training. There’s nothing normal about the times we live in.

JN: Did you think it would get to the point that it’s gotten to now?

JR: Donald Trump has a history of acting in greedy, irrational, bullying, and provocative ways, so I assumed that he would bring us to this point eventually. I felt at the beginning, and I feel now, that we need every tool in the constitutional tool kit on the table, and that includes the 25th Amendment of the Constitution, which we keep hearing about from people who leave the Trump administration.

The 25th Amendment, which was adopted in 1967, provides that the vice president and a majority of the cabinet can take action if the president is determined to be unable to discharge the powers and duties of his office. But it also says that the vice president and a majority of a separate body appointed by Congress can act under these circumstances too. It’s just that Congress has never set up the body.

JN: You’d like to see that happen.

JR: It should have been done long ago. It’s necessary for every presidential administration, not just this one. There are lots of reasons that the president might be incapacitated, as the authors of the 25th Amendment, [Indiana Senator] Birch Bayh and [New York Senator] Robert Kennedy, observed. There are physical reasons, mental and cognitive reasons. These are serious things in the nuclear age, as the framers of the 25th understood.

So the 25th Amendment is not irrelevant to discussions about presidential accountability. The amendment itself is organized around separation-of-powers principles. You can go back and find dialogue among the senators [who authored] the 25th Amendment discussing the importance of having Congress engaged with the process as well as the cabinet. Congress is central to it. We have 535 Members of Congress, but just one president.

JN: In the tool kit you discuss, impeachment looms large. Some members of Congress have called for impeachment. You’ve discussed the issue but not made a formal call. Why not?

JR: I’ve been vehement about calling for Democratic control of Congress. I threw everything I had into the 2018 fight to retake the House. And I feel the same way about the 2020 election. We are in a civilizational emergency with respect to climate change, which Republicans ignore and deny. But we have a major political party that is operating with the ethos of a religious cult in capitulating to whatever their leader tells them to do. And that leader lurches from crisis to crisis, from the shutdown of our government to the unlawful declaration of a national emergency, to the vilification of immigrants, to the systematic obstruction of the law-enforcement function of government, as was described in the Mueller report, to an effort to stop all executive-branch compliance with lawful congressional orders and demands for information.

With that said, as a member of the Judiciary Committee, I believe it is going to be very important for us to proceed deliberately, soberly, and with careful attention to all of the evidence, as well as all the information and views being brought to us by our colleagues.

JN: How should the committee make the call on whether the inquiry that extends from the Mueller report, and related issues, will become an impeachment process?

JR: To me, the question is whether we have sufficiently abundant evidence of high crimes and misdemeanors, meaning public offenses against the character of our government, which are part of a continuing pattern of attacks on our constitutional system. I’ve got to say that the mood here has changed over the last several days [in late April], ever since the president told the executive branch of the government to stop cooperating with congressional investigations. They are trying to disable our capacity to investigate corruption of the security-clearance process, to question the former White House counsel Don McGahn, to obtain the president’s tax returns, and to call witnesses and get documents. The obstructionism we read about in the report has come leaping off the pages and is making it impossible to do our work.

Trump is trying to pull a curtain down over the entire executive branch and cut us off at the knees. Well, every member of Congress, regardless of political party, depends upon the oversight power and specifically the power to investigate the executive branch of government. Trump’s refusal to respond to our lawful demands is a direct assault on the separation of powers and an affront to our ability to get our work done.

JN: Doesn’t what the president is doing meet the standard of impeachment or a potentially impeachable offense?

JR: There is no doubt. Obstruction of justice is plainly an impeachable offense. It was the heart of the Nixon articles. Check out Article 3: It alleged presidential obstruction of justice and congressional process, and then assembled an inventory of different things Nixon did to block and confound the investigation, including lying, intimidating subordinates, destroying evidence, and so on.

The Republicans impeached Bill Clinton for obstruction of justice when he told one lie about a private act of sex. I don’t hold that up as a standard for us. We would never sink so low as to impeach a president in those circumstances. If we wanted to impeach a president on the Republican standard that was used in the Clinton case, we would have impeached Donald Trump long ago because his hush-money payoffs to his mistresses constituted campaign-finance violations and are a far greater offense to the rule of law than Bill Clinton’s lie about a personal relationship with Monica Lewinsky. But we believe that impeachable conduct must be of a character that truly undermines essential public values, rather than just reflecting private infidelity and deception.

JN: How will you determine whether things have gotten to a point where impeachment is necessary?

JR: Before I’m ready to impeach, I want to be certain that there is convincing evidence of high crimes and misdemeanors and that the public costs now and in the future of allowing the president to continue a pattern of lawlessness are greater than the costs of removing him and going through the process.

JN: What’s your sense of the general feeling in Congress and on the Judiciary Committee at this point?

JR: The Constitution clearly gives power to impeach, and it also gives us power not to impeach. Both of these are awesome powers that we have to handle with the utmost attention to detail and the public good. It is a process and was designed as a process, not a referendum.

This is why you are not hearing many members of the Judiciary Committee simply opining “yes” or “no” and giving a thumbs up or a thumbs down. Members of the Judiciary Committee are feeling the weight of the multiple responsibilities we’ve been assigned, and if it does come to an impeachment and we recommend articles of impeachment and it goes to the floor of the House, then every member of the House will feel the exact same weight.

Every day I am more impressed by my Democratic colleagues on the House Judiciary Committee and Chairman Nadler. It’s just a wonderfully public-spirited and lively group of people, and when we meet, usually it is very light-hearted. But since America has started talking about impeachment, our hearings are a lot more solemn and people have a serious countenance. It’s a big weight.

JN: Am I right that you’ve got a copy of the Federalist Papers on your nightstand?

JR: I’ve got my beat-up copy of the Federalist Papers from college still, so it’s already underlined and marked-up. But I’ve also read all the books that have come out. My constitutional law professor, Larry Tribe, wrote one with a more recent student of his named Josh Matz. This is, I think, a very strong primer. But there are a number of good books out there. Liz Holtzman has one that’s marketed much more explicitly as an answer to Trump. I’ve got a big stack. My old friend John Bonifaz has co-authored a good book, and Allan Lichtman has one too. I wish all the answers were in the books, but the decisions have to be made out here.

JN: Is this a good time for the American people to be reading up on the issue, as well?

JR: You know, one of the pernicious dynamics of the Trump era is the assault on critical-thinking skills in the public. And constitutional literacy has been under powerful attack by a president who recently made the inadvertently comical suggestion that he wasn’t worried about impeachment because he would just appeal it to the Supreme Court. So I think it’s a great opportunity for Congress to help educate the public about the nature of the Constitution and for people across the land to reengage with it.

Whenever there’s a new outrage by Trump, one of my colleagues will get up on the floor and refer to Congress as a coequal branch of government, and I always think that there’s something forlorn and vaguely pathetic about that. We are not a coequal branch. We are the first among equals. We are in Article 1 of the Constitution. We are the representatives of the people. When you look at the powers of Congress, they are comprehensive and abundant. The president’s core job is to take care that the laws are faithfully executed, not thwarted and circumvented, much less violated.

The struggle to defend our oversight power is also a struggle to get America to see that we are a representative, constitutional democracy. We are not a presidential monarchy.

When you look at that outrageous 19-page job application, single-spaced, that Bill Barr submitted before his appointment, it’s all about his belief that the president of the United States cannot be found guilty of obstructing justice. This is way beyond the procedural point that the Department of Justice makes that the president cannot be indicted while in office.… This is an egregious constitutional error, which cuts against our fundamental belief that no one is above the law in our democracy and no one may be a judge in his own case. But the argument obviously has an eager supporter in Donald Trump, who has from the beginning promised to unleash prosecutors against Hillary Clinton and continually demands an investigation into his critics. He has incessantly interfered in the Mueller investigation.

JN: Does this period we are in have the potential, no matter what formal action Congress takes, to renew respect for the system of checks and balances?

JR: Well, I think that’s right. We’ve been plunged into a series of presidential wars and presidential crises for decades now, and this should be a moment when we restore the proper constitutional balance, with the Congress understood as the people’s branch of government. It needs to be made far more democratic, which is why we’re fighting for sweeping campaign-finance reform and abolition of gerrymandering in the states. But as imperfect as it is, it is the people’s branch, and we need to vindicate our power.

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