On this week’s Amicus, Dahlia Lithwick is joined by Frank Bowman, author of the upcoming book High Crimes and Misdemeanors, A History of Impeachment for the Age of Trump, to discuss a topic that’s been on everyone’s mind. Lithwick and Bowman discuss impeachment’s historical precedent, constitutional roots, and present-day predicaments. The following is a transcript of part of that conversation, and it has been lightly edited and condensed for clarity.
Dahlia Lithwick: In your book, you say that the role of the press and polarization have changed profoundly since the 1970s and that it’s really hard to take general lessons [from the Nixon impeachment]. I hear you saying in the book that it’s very, very hard to triangulate against lessons from Watergate.
Frank Bowman: It is, although I personally attempted to do it, because I’m old enough that Watergate was a formative experience for me. I was in college at the time the Watergate hearings, both in the Senate and the House, were going on, and I and pretty much everybody else in the country watched all or most of those things obsessively. The fact that I can say that to you tells you something immediately about the media environment at the time. First, it was a media environment in which they covered those things gavel to gavel, there wasn’t a lot of other noise, and people watched. They were riveted by what was happening in front of them in Congress.
And of course now, even if the House summons the courage to commence a formal impeachment inquiry and starts to hold formal hearings, there’s a serious question about who’s actually going to watch. And that makes a huge difference, because when the Nixon impeachment drama began shortly after, really, Nixon’s reelection in ’72, and when the idea of impeachment was first bandied about, something like 25 percent of the electorate had any enthusiasm for impeaching Nixon at all. It was the constant drumbeat of news because the media had a big role to play back then in disclosing Watergate. But the constant exposure of the careful work of the Senate Watergate Committee and the House Judiciary Committee—that gradually not only exposed the facts, but changed people’s minds. So a year and a half, two years later, by the time Nixon resigns, at that point, his base of support had gone down to about 25 percent, and it was the powerful educational effect of Congress holding these hearings in a media environment in which everybody watched. Now the other thing, of course, that’s changed dramatically is the positions of the parties and the members with respect to this kind of controversy.
What’s incredibly remarkable, and it makes me feel so nostalgic to watch any of those hearings, is that although this was an effort to investigate and ultimately remove a Republican president and the Republican Party was certainly not happy about that, its elected representatives at the least took the fact-finding component of that inquiry seriously. Once the facts were reasonably well disclosed, many of them were certainly prepared to argue about their implications to say they don’t really amount to an impeachable offense, and so forth and so on. But they cooperated actively in investigating Richard Nixon’s misdeeds. They themselves, by asking questions, and the council and staff that they hired were partners with the Democrats in finding out what the facts were. That’s an environment which is almost inconceivable today.
That’s why as much as a part of me would very much like to see the House of Representatives commence a formal inquiry, at least to help engage the public in this educational exercise of figuring out what the Constitution means and whether the current president is really endangering its fundamental principles and operations—as much as I’d like to see that, I’m skeptical that Congress has now constituted … could do it.
I’ve been thinking about you in the last couple of weeks, Frank, when I’ve been watching these attempts to turn the Mueller report into a graphic novel, and then go up to Riverside Church and have John Lithgow read the Mueller report with a star-studded cast. And now, the prospect of Mueller actually testifying on July 17, I think it makes the same point you’re making, which is fundamentally that the use of an impeachment process, at least starting the inquiry, is an educative one. You want people to learn things. And I think what you’re describing is, what if they held an impeachment and nobody came, right? All the people who didn’t read 448 pages of the Mueller report may be the same people who just don’t care, and that is different from Nixon, but I think you would also maybe agree even from Clinton. People may have thought it was frivolous, or not, but at least they tuned in. It seems as though what you’re describing, which is this aspirational part of it, which is we want to air this out and have a process, and it feels like you’re saying in many, many ways, as a function both of the media landscape and the political landscape, it would matter almost not at all.
Well, I know the hopeful part of me, the patriotic part of me, if you will, wants to believe that, while it’s true in the current environment that there’s some segment of the population that simply can’t or won’t be reached, there’s also a significant population which makes up a part of the voting population certainly in the end for the next presidential election—they can be reached. That if Congress, and I say Congress as an institution, not one party or the other, if Congress does the job that the Constitution envisions for it, of at least inquiring into whether or not the president is fulfilling his responsibilities, if Congress does that, that people can be induced to listen, or at least enough of them to matter.
Now, there’s plenty of counterarguments to that. I mean, one of the things that’s different about Clinton was that the whole Clinton mess—and it wasn’t that long ago, but it occurred before the fracture of the news and media environment into its current sort of polarized state. Fox News essentially hadn’t been invented yet, and the media outlets on the left to counter the Fox effect hadn’t begun to arise. That’s only really 20 years ago or so. People didn’t receive so much of their information from siloed outlets so that they didn’t get the other side.
Clinton escaped in the end because a consensus arose that he was, in many ways, a kind of vile predatory liar, but that particular set of sins didn’t amount to a constitutionally consequential offense. Granted, there was lots of partisanship in that determination, but he survived because the country as a whole basically came to that conclusion. And it came to that conclusion because there was still a possibility for people who consumed news in the ordinary way to arrive at some sort of shared consensus about what the facts were. Clinton didn’t survive because there was any disagreement about what he’d done. He survived because everybody knew what he’d done and decided that, constitutionally, we didn’t care.
In the current environment, it’s not clear to me that it’s even possible to achieve a sort of general consensus on what the facts are, much less their constitutional consequence. As an American patriot, that prospect just frightens me to death. Because if I’m right about that, then we are closer to losing the republic than we think, and not just because we can’t impeach one president. I mean, after all, the other thing to be said about the Framers is that, for a while, they were torn on whether or not even to have impeachment because many of them thought, “Well, we’ve got these elections,” and quadrennial elections should be sufficient to get rid of a sufficiently degenerate president.
They ultimately decided that wasn’t enough. They decided that the danger was real and they needed a weapon against it, but we may be at a point where at least that particular weapon against executive tyranny is no longer functionally available to us. And that means while, in and of itself, it doesn’t take us to a destruction of the constitutional order, it certainly means we have one less tool to hold us back from that ultimate collapse.
Frank, why did the Framers single out and name-check treason and bribery?
To recount all the ebbs and flows of the constitutional summer of 1787 is more than we want to do here. What I can say is that the definition of what would constitute impeachable conduct started out very broad at the beginning of the summer, including basically any kind of mismanagement as well as any regular crimes. That got whittled away to treason or bribery. And then in September of the session, George Mason stands up and says, “I don’t like treason and bribery. That’s too darn narrow. How about maladministration?”
Oh, that’s catchy, “maladministration.”
Yeah, maladministration. It was used often in lots of the impeachments. As a matter of fact, it was used in many of the state constitutions that had been in place prior to 1788. But Madison then rises and says, in effect, “That’s too broad. If we’re going to go impeaching people for maladministration, that’s going to make the president,” in Madison’s terms, “simply a creature of the Senate,” whereupon Mason thinks about it a little bit and says, in effect, “Well, you don’t like maladministration. How about high crimes and misdemeanors?” And everybody looks at each other and says, “That sounds great, let’s do it.”
Now, of course, that’s not really what happened. We don’t really know exactly what they said when they were trading those phrases back-and-forth, but one of the ironies of the movement from treason and bribery, to treason and bribery or maladministration, to treason, bribery, or high crimes and misdemeanors, is that it’s perfectly plain that high crimes and misdemeanors in British parlance actually included maladministration, and it’s pretty plain that Mason knew that and probably Madison too. But what I think Madison was trying to suggest by objecting to maladministration is that we don’t want presidents just to be removed because the Congress is dissatisfied with the job the president’s doing. It needs to be more than that. It doesn’t have to be actually criminal, but it has to be something that really strikes at his legitimacy or really strikes at undermining the constitutional order, and high crimes and misdemeanors, I think, felt more like that for him and other people who were there.
I think your concluding point [in your book] is the constitutional health of the country requires that Donald Trump be impeached because that is what, as you said, is destroying the Constitution itself. Is that a position you started with when you started undertaking this research, or was kind of delving into all of the history of the Stuarts and everything that came after, did that inform the way you now think about the role impeachment plays?
Well, let me see if I can break that down into a couple of pieces first. If you ask me the question: Do I think that the current president of United States, Donald Trump, has engaged in conduct which, as a matter of history, constitutional text, and American practice, can fairly be characterized as impeachable? The answer is plainly yes. At a minimum, Volume 2 of the Mueller report makes out a case for obstruction of justice in both the statutory sense and also in the broad constitutional sense, which was the basis, for example, of at least one of the articles of impeachment adopted by the House Judiciary Committee against Richard Nixon.
Moreover, I think there are other grounds for considering his impeachment. The blanket resistance to essentially any congressional inquiries about the operation of this administration is verging on impeachable conduct but hasn’t already reached there. And indeed, I think the degree of that resistance has been reported, but perhaps not completely reported. It’s clear to me from talking to folks on Capitol Hill that the administration has essentially effectively stopped cooperating with legitimate congressional inquiries across the entire range of governmental operations, and that essentially threatens one of the essential interrelationships between two branches of the government. I think that’s … if it isn’t already impeachable, it’s certainly getting there, and a number of the other areas that you mentioned are certainly possibilities.
Second question, would I necessarily say to Speaker [Nancy] Pelosi, “Gosh, I think it’s absolutely imperative that the House impeach this guy”? I think today—and I may think differently tomorrow—I think today that it would be a good idea to at least commence a formal inquiry on impeachment against the president, among other reasons, of course, because once you do that, the House of Representatives’ power of compelling the production of witnesses and information is infinitely stronger than it is even for their general oversight power.
But also for the reasons with which I think we began, which is that I think one of the roles of impeachment has always been educational—it’s defining. Impeachments not only remove miscreants. They also inevitably involve conversations about what we think the constitution means and how the branches should relate to each other, how we’re supposed to live with each other, how the constitutional order is supposed to work. And it is troubling to me that, for reasons that may make perfectly sound political sense, and I’m never going to second-guess Nancy Pelosi on matters of politics, but for whatever reason, the House seems to be unable or unwilling even to open that conversation. It doesn’t seem to trust itself or the American people to listen long enough to form an educated opinion either about what this man has done or whether it’s the kind of behavior that we ought to tolerate in a constitutional democracy. And that’s pretty darn disheartening.
