A conservative newspaper, The Washington Examiner, published an article today citing legal experts who discussed the topic of Donald Trump’s impeachment.
These experts say that the U.S. Constitution does not require that “high crimes and misdemeanors” actually be committed while serving as president.
What precipitated such a discussion was the recent plea agreement special counsel Robert Mueller entered into with former Trump attorney and fixer, Michael Cohen.
As part of his deal, Cohen disclosed a great deal of information about Trump’s personal involvement in a planned major real estate project for a Trump Tower in Moscow. Some of Cohen’s testimony, and other evidence, might prove that the current president committed “high crimes and misdemeanors” while he was just a presidential candidate.
Since Trump’s impeachment is now being openly discussed, legal experts are discussing the legalities of the process of removing a president from office. Many of them say that a president can be impeached under some circumstances for behavior entered into before taking the oath of office.
Joshua Matz, an author of To End a Presidency: The Power of Impeachment, told the Examiner:
“My view, which represents the decisive majority opinion, is that President Trump can be impeached for conduct before he took office if there is an exceptionally close connection between that conduct and his acquisition of the office.”
Matz also said that,
“Presidents cannot be impeached for conduct before they take office unless that conduct related to the corrupt acquisition of the office.”
However on this last point, other experts disagree, saying the exception is broader than that.
As authority, the experts point to the 2010 impeachment of former U.S. District Judge G. Thomas Porteous. Porteous was convicted of four articles of impeachment, which included conduct while he was a state-court judge.
Rep. Adam Schiff, D-Calif., the top Democrat on the House Intelligence Committee, cited the Porteous case when he discussed whether sitting officials can be ousted for offenses committed before acquiring higher office.
“We now by constitutional terms — in a country that rarely has impeachment trials — have a precedent that you can be impeached and removed from office both for prior crimes and for lying under oath,” Schiff said in October.
Gene Healy, a vice president at the Cato Institute who focuses on executive power and the role of the presidency, said the Porteous case offers legislators a model for them to use in answering the question of the validity of impeachment for pre-presidential misconduct.
“When you understand that the impeachment process fundamentally goes to fitness for office, you can’t draw a bright line that says anything that happened before this certain date when the president assumed office, you get a clean slate and the clock starts after an election or confirmation,” Healy told the Examiner. “That’s not the way it’s supposed to work.”
Because impeachment deals with whether one is fit for office, “it stands to reason that conduct that occurred before somebody assumes their post, when it’s exposed, is relevant to that kind of inquiry,” Healy added.
Jeffrey Engel, co-author of the book Impeachment: An American History, told the Examiner:
“We need to go one level below or unpack by one level what it means to have a business deal with a foreign power. Obviously that means that the foreign power has some financial interest or financial sway and you could be influenced by money. And we certainly know the president is influenced by money.”
“Secondly, it also gives them classic opportunities to blackmail the president because Trump said numerous times on the campaign trail, ‘I have no foreign dealings with Russia. If that’s not true, then the Russians at any time could choose to disclose that information and provide proof.”
Healy and other legal authorities have referred to the Constitutional Convention in 1787 when George Mason said that a president who has obtained the office through corrupt means should not be allowed to escape punishment.
It will be interesting to see how this topic is resolved in the weeks and months ahead. Congress may not have the stomach — or the need — to bring impeachment proceedings against the president. But if they do, they will have plenty of evidence of misbehavior, much of which took place long before Donald Trump became President of the United States.