[Congressional Record Volume 163, Number 155 (Wednesday, September 27, 2017)]
[Extensions of Remarks]
[Page E1278]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]





                 THE OVERCRIMINALIZATION OF IMPEACHMENT

                                 ______
                                 

                             HON. AL GREEN

                                of texas

                    in the house of representatives

                     Wednesday, September 27, 2017

  Mr. AL GREEN of Texas. Mr. Speaker, I would like to include the 
following CATO article for the Record:

                     [From CATO.org, Aug. 7, 2017]

                            (By Gene Healy)

       Trying to tamp down impeachment talk earlier this year, 
     House minority leader Nancy Pelosi (D-CA) insisted that 
     President Donald Trump's erratic behavior didn't justify that 
     remedy: ``When and if he breaks the law, that is when 
     something like that would come up.''
       Normally, there isn't much that Pelosi and Tea Party 
     populist Rep. Dave Brat (R-VA) agree on, but they're on the 
     same page here. In a recent appearance on Trump's favorite 
     morning show, ``Fox & Friends,'' Brat hammered Democrats 
     calling for the president's impeachment: ``there's no statute 
     that's been violated,'' Brat kept insisting: They cannot name 
     the statute!''
       Actually, they did: it's ``Obstruction of Justice, as 
     defined in 18 U.S.C. Sec. 1512(b)(3),'' according to Rep. 
     Brad Sherman (D-CA) who introduced an article of impeachment 
     against Trump on July 12. Did Trump break that law when he 
     fired FBI director James Comey over ``this Russia thing''? 
     Maybe; maybe not. But even if ``no reasonable prosecutor'' 
     would bring a charge of obstruction on the available 
     evidence, that wouldn't mean impeachment is off-limits. 
     Impeachable offenses aren't limited to crimes.
       That's a settled point among constitutional scholars: even 
     those, like Cass Sunstein, who take a restrictive view of the 
     scope of ``high Crimes and Misdemeanors'' recognize that ``an 
     impeachable offense, to qualify as such, need not be a 
     crime.'' University of North Carolina law professor Michael 
     Gerhardt sums up the academic consensus: ``The major 
     disagreement is not over whether impeachable offenses should 
     be strictly limited to indictable crimes, but rather over the 
     range of nonindictable offenses on which an impeachment may 
     be based.''
       In some ways, popular confusion on this point is 
     understandable. Impeachment's structure echoes criminal 
     procedure: ``indictment'' in the House, trial in the Senate--
     and the constitutional text, to modern ears, sounds something 
     like ``grave felonies, and maybe lesser criminal offenses 
     too.''
       But ``high crimes and misdemeanors,'' a term of art in 
     British impeachment proceedings for four centuries before the 
     Framers adopted it, was understood to reach a wide range of 
     offenses that, whether or not criminal in nature, indicated 
     behavior incompatible with the nature of the office. For 
     James Madison, impeachment was the ``indispensable'' remedy 
     for ``Incapacity, negligence, or perfidy'' on the part of the 
     president--categories of conduct dangerous to the republic, 
     only some of which will also constitute crimes.
       The criminal law is designed to punish and deter, but those 
     goals are secondary to impeachment, which aims at removing 
     federal officers unfit for continued service. And where the 
     criminal law deprives the convicted party of liberty, the 
     constitutional penalties for impeachable offenses ``shall not 
     extend further than to removal from Office,'' and possible 
     disqualification from future officeholding. As Justice Joseph 
     Story explained, the remedy ``is not so much designed to 
     punish an offender, as to secure the state against gross 
     official misdemeanors. It touches neither his person, nor his 
     property; but simply divests him of his political capacity.''
       No doubt being ejected from a position of power on the 
     grounds that you're no longer worthy of the public's trust 
     can feel like a punishment. But the mere fact that removal is 
     stigmatizing doesn't suggest that criminal law standards 
     apply. Raoul Berger once illustrated that point with an 
     analogy Donald Trump would probably find insulting: ``to the 
     extent that impeachment retains a residual punitive aura, it 
     may be compared to deportation, which is attended by very 
     painful consequences, but which, the Supreme Court held, 'is 
     not a punishment for a crime.''
       Had the Framers restricted impeachment to statutory 
     offenses, they'd have rendered the power a ``nullity'' from 
     the start. In the early Republic, there were very few federal 
     crimes and certainly not enough to cover the range of 
     misdeeds that would rightly disqualify public officials from 
     continued service.
       Criminality wasn't an issue in the first impeachment to 
     result in the removal of a federal officer: the 1804 case of 
     district court judge John Pickering. Pickering's offense was 
     showing up to work drunk and ranting like a maniac in court. 
     He'd committed no crime; instead, he'd revealed himself to be 
     a man ``of loose morals and intemperate habits,'' guilty of 
     ``high misdemeanors, disgraceful to his own character as a 
     judge.''
       As Justice Story noted in 1833, in the impeachment cases 
     since ratification, ``no one of the charges has rested upon 
     any statutable misdemeanours.'' In fact, over our entire 
     constitutional history, fewer than a third of the 
     impeachments approved by the House ``have specifically 
     invoked a criminal statute.'' What's been far more common, 
     according to a comprehensive report by the Nixon-era House 
     Judiciary Committee, are ``allegations that the officer has 
     violated his duties or his oath or seriously undermined 
     public confidence in his ability to perform his official 
     functions.''
       The president's violation of a particular criminal statute 
     can serve as evidence of unfitness, but not all such 
     violations do. That's obvious when one considers the enormous 
     growth of the federal criminal code in recent decades. 
     Overcriminalization may have reached the point where Donald 
     Trump, like everyone else, is potentially guilty of ``Three 
     Felonies a Day,'' but even in Lawrence Tribe's wildest 
     imaginings, that wouldn't translate to three impeachable 
     offenses daily. If Trump were to import crocodile feet in 
     opaque containers, fill an (expansively defined) wetland on 
     one of his golf courses, or misappropriate the likeness of 
     ``Smokey Bear `` he'd have broken the law, but would not have 
     committed an impeachable offense.
       It's also easy enough to imagine a president behaving in a 
     fashion that violates no law, but nonetheless justifies his 
     removal. To borrow an example from the legal scholar Charles 
     Black, if the president proposed to do his job remotely so he 
     could ``move to Saudi Arabia [and] have four wives'' (as well 
     as his very own glowing orb), he couldn't be prosecuted for 
     it. Still, Black asks: ``is it possible that such gross and 
     wanton neglect of duty could not be grounds for 
     impeachment''?
       A more plausible impeachment scenario presented itself 
     recently, with reports that President Trump had ``asked his 
     advisers about his power to pardon aides, family members and 
     even himself'' in connection with the special counsel's 
     Russia investigation. The president's power to self-pardon is 
     an open question, but his power to pardon others has few 
     limits. There's little doubt Trump could issue broad 
     prospective pardons for Don Jr., Jared Kushner, Paul 
     Manafort, Mike Flynn, and anyone else who might end up in the 
     Mueller's crosshairs--and it would be perfectly legal. It 
     would also be impeachable, as James Madison suggested at the 
     Virginia Ratifying Convention: ``if the President be 
     connected, in any suspicious manner, with any person, and 
     there be grounds to believe he will shelter him, the House of 
     Representatives can impeach him; [and he can be removed] if 
     found guilty.''
       Some years ago, I put together a collection of essays on 
     the expansion of the criminal sanction into areas of American 
     life where it doesn't belong--published under the title, Go 
     Directly to Jail: The Criminalization of Almost Everything. 
     The idea that criminal law concepts had infected and weakened 
     the constitutional remedy of impeachment wasn't quite what I 
     had in mind with that subtitle, but it seems to fit.
       Congress has made the problem worse by outsourcing its 
     investigative responsibilities to the executive branch. As 
     Princeton's Keith Whittington observes in a recent essay for 
     the Niskanen Center ``relying so heavily on prosecutors to 
     develop the underlying charges supporting impeachment has 
     come at a high cost . . . it has created the widespread 
     impression that the impeachment power can only appropriately 
     be used when criminal offenses have been proven.''
       It's important to get this straight, because confusing 
     impeachment with a criminal process can be harmful to our 
     political health. It may lead us to stretch the criminal law 
     to ``get'' the president or his associates, warping its 
     future application to ordinary citizens. And it can leave the 
     country saddled with a dangerously unfit president whose 
     contempt for the rule of law is apparent, even if he hasn't 
     yet committed a crime.

                          ____________________