Can a sitting president be indicted? Can he be investigated by a special prosecutor? Supreme Court nominee Brett Kavanaugh has previously suggested that the answer to both questions is no. Now those past writings have become a flashpoint in the fight over his confirmation to the Supreme Court.
That certainly makes sense: Whether President Donald Trump will be prosecuted for federal crimes, how the Supreme Court might intervene and whether that could lead to Trump’s impeachment could soon hinge on Kavanaugh’s views. But today’s public debate tends to focus on criminal prosecution as a necessary first step before impeachment, and that concedes too much.
Contrary to a common misunderstanding, impeachment does not require evidence that the president committed a federal crime. While senators will be right to question whether Kavanaugh would cast the deciding vote to protect Trump from prosecution, Americans must not surrender an important constitutional safeguard against a president’s non-criminal abuse of power.
The Constitution states that the president may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” But those “high Crimes and Misdemeanors” don’t need to be criminal offenses. The framers borrowed the phrase from England, where officials were impeached for abuses of their office that were not always criminal offenses, and that’s how the framers used the phrase.
The fact that Trump has committed impeachable offenses that are not crimes has been lost in our current public discussion.
Consider, for example, the Constitution’s foreign emoluments clause, which bans officials from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Through his businesses, Trump has been raking in payments from the governments of countries like Saudi Arabia and China since the moment he took office. Some of his rather unusual foreign policy decisions, like blatantly contradicting his own policies to help Chinese state-backed phone company ZTE, seem suspiciously responsive to opportunities for the Trump Organization.
These foreign government payments are a serious constitutional violation, but receiving such emoluments is not a criminal offense. For that reason, they are not within the scope of special counsel Robert Mueller’s investigation. And a future Justice Kavanaugh’s views on criminal investigations of the president will not bear on this issue.
Yet the framers told us that pocketing foreign emoluments is an impeachable offense. In the constitutional debates over the impeachment power, Gouverneur Morris (the “Penman of the Constitution”) argued that “no one would say that we ought to expose ourselves to the danger of seeing the [president] in foreign pay, without being able to guard against it by displacing him.” Later, at Virginia’s closely divided ratifying convention, discussing the possibility of a president influenced by “emoluments from foreign powers,” future first U.S. Attorney General Edmund Randolph observed, “If discovered, he may be impeached.”
The fact that Trump has committed impeachable offenses that are not crimes has been lost in our current public discussion, which misleadingly speaks of impeachment as either a prerequisite to or a consequence for a finding of criminal violations. This narrow framing effectively shrinks the scope of Congress’ impeachment power by ignoring serious but non-criminal offenses like pocketing foreign emoluments and abusing the pardon power.
To be sure, many impeachable offenses are also prosecutable crimes, and this is where Kavanaugh’s views could come into play. For example, there is powerful public evidence that Trump has probably violated criminal statutes related to obstruction of justice. And despite some well-intentioned efforts to read Kavanaugh’s past writings in a generous light, two legal experts have concluded that the Supreme Court nominee has “clearly declared his position on specific issues already in play in a criminal investigation that directly affects the president.” Indeed, Kavanaugh wrote in 2009 that a president should not be required even to face “depositions or questioning.” These views should give the Senate great pause, as the Supreme Court might need to rule on such questions quite soon.
Yet critical national questions must not be left solely to the criminal process. Kavanaugh himself has written that Congress is fully capable of conducting factual investigations to determine whether to impeach and remove the president — even before criminal investigators are involved. Deferring Congress’ most awesome responsibility to a prosecutor with a limited mandate allows politicians to hide from difficult choices. And rewriting impeachment into a response to criminality alone undermines the Constitution by erasing Congress’ duty to protect the country from a president’s grave but non-criminal abuses of office.
Any Supreme Court nomination by a president under criminal investigation would be suspect. And we should be particularly concerned that Trump’s team closely studied Kavanaugh’s writings on criminal investigations of presidents. It suggests they believe that Trump may bring these issues to a head by fighting federal prosecutors as Mueller’s investigation closes in, compelling the Supreme Court to resolve the high-stakes dispute. But we must not overlook Congress’ authority to check a president as well.
The Constitution does not entrust the power of impeachment to the Supreme Court or to Robert Mueller. That power ― and that responsibility ― belong to Congress.
Ron Fein is the legal director of Free Speech For People and a co-author of the forthcoming book The Constitution Demands It: The Case for the Impeachment of Donald Trump, which will be published by Melville House in August 2018.