Democrats impeached Trump for high crimes and misdemeanors without convicting him of a crime. This tactic was discussed in earlier debates, as recorded here:
High Crimes Without Law - Harvard Law Review
HARVARD LAW REVIEW FORUM
High Crimes Without Law
Responding to Laurence Tribe & Joshua Matz,
To End a Presidency (2018)
Response by Nikolas Bowie
DEC 10, 2018
Imagine if Justice Ruth Bader Ginsburg resigned from the Supreme Court to serve as President Donald Trump’s lawyer. You now have a sense of the whiplash Capitol Hill experienced 150 years ago when former Justice Benjamin Curtis agreed to represent President Andrew Johnson in his impeachment trial. When Curtis accepted the position, he was best known for his dissenting opinion in
Dred Scott v. Sandford1×
1. 60 U.S. (19 How.) 393 (1857). — a decision that so disgusted him that he quit the Supreme Court in protest.
2×
2. See STUART STREICHLER, JUSTICE CURTIS IN THE CIVIL WAR ERA 148–49 (2005). President Johnson, by contrast, was best known for embodying that decision’s observation that some white men would never respect a black person. A white supremacist
3×
3. President Johnson once proclaimed: “This is . . . a country for white men, and by God, as long as I am President, it shall be a government for white men.” ANNETTE GORDON-REED, ANDREW JOHNSON 112 (2011).Show More from Tennessee, President Johnson frequently clashed with members of Congress over what he termed “nigger equality.”
4×
4. JOHN SAVAGE, LIFE AND PUBLIC SERVICES OF ANDREW JOHNSON 311 (New York, Derby & Miller 1865); see also GORDON-REED, supra note 3, at 12.Show More President Johnson vetoed civil rights laws.
5×
5. See, e.g., CONG. GLOBE, 39th Cong., 1st Sess., 1679 (1866) (reporting President Johnson’s veto of a civil rights bill).Show More He accused senators of plotting with members of his Administration to undermine his policies.
6×
6. See MICHAEL LES BENEDICT, THE IMPEACHMENT AND TRIAL OF ANDREW JOHNSON 95–100 (1999); HANS L. TREFOUSSE, ANDREW JOHNSON 235 (1989).Show More And at campaign rallies across the Midwest, President Johnson drew jeers and laughter by issuing “loud threats and bitter menaces” against a Congress whose commitment to helping black people he regarded as “Radical.”
7×
7. CONG. GLOBE, 40th Cong., 2d Sess., Supp. 4 (1868).
It was in part due to these Midwestern rallies that the House of Representatives impeached President Johnson in 1868. Many congressmen saw President Johnson as an embarrassment, a threat to the Republic whose unprecedented insults were unpresidential. Invoking the Constitution’s lone provision for prematurely ending a President’s term, the House called for the Senate to convict President Johnson and remove him for committing “high crimes and misdemeanors.”
8×
8. Id. at Supp. 3; see also U.S. CONST. art. II, § 4. Most of the eleven articles of impeachment the House drafted accused President Johnson of violating a criminal statute that prohibited him from removing certain cabinet officials, but two charged him with delivering such “intemperate, inflammatory, and scandalous harangues” that they rose to the level of high misdemeanors.
9×
9. CONG. GLOBE, 40th Cong., 2d Sess., Supp. 4–5 (1868). Article X accused the president of bringing “the high office of the President of the United States into contempt” with his speeches. Id. at Supp. 4. Article XI accused him of “denying and intending to deny that the legislation of [the] Congress was valid or obligatory upon him.” Id. at Supp. 5.Show More One of these speech-related charges eventually became the focus of the subsequent impeachment trial and the first charge on which prosecutors asked the Senate to deliberate and vote.
10×
10. Id. at Supp. 4.
So why did Benjamin Curtis,
Dred Scott dissenter, agree to defend such a racist demagogue? In his opening argument before the Senate, Curtis explained that a greater principle than President Johnson or even the presidency was at stake. Then as now, there was an ongoing scholarly debate over the meaning of the phrase “high Crimes and Misdemeanors.”
11×
11. U.S. CONST. art. II, § 4. Most people, including a majority of the House of Representatives, interpreted the phrase to refer not to literal crimes or misdemeanors but to any serious abuses of presidential power.
12×
12. See CONG. GLOBE, 40th Cong., 2d Sess., Supp. 411 (1868). This interpretation remains the dominant one 150 years later. In the words of Professor Laurence Tribe and Joshua Matz, the majority view is that a president can legally be impeached for “intentional, evil deeds”
13×
13. LAURENCE TRIBE & JOSHUA MATZ, TO END A PRESIDENCY 42 (2018). that “drastically subvert the Constitution and involve an unforgivable abuse of the presidency” — even if those deeds didn’t violate any criminal laws.
14×
14. Id. at 38.
But Curtis was not so convinced. Acknowledging that he was about to make an argument that had been rejected by most of the “learned dissertations” on the question of what should constitute an impeachable offense, Curtis thought the answer was actually pretty straightforward.
15×
15. CONG. GLOBE, 40th Cong., 2d Sess., Supp. 134 (1868) (opening argument of Benjamin Curtis).Show More An impeachment proceeding is a trial, Curtis began, in which the House brings charges of “high Crimes and Misdemeanors” and the Senate judges whether the defendant is guilty.
16×
16. Id. at Supp. 123. It is a basic principle of impartial justice, Curtis continued, that a judge cannot declare something a crime or misdemeanor unless it was made so by some law at the time it was done.
17×
17. Id. at Supp. 134. But in President Johnson’s case, there was no law outlawing scandalous speeches. The House had declared President Johnson’s conduct a high misdemeanor only in retrospect. As Curtis put it, these charges asked each senator to say, “if I cannot find a law I will make one.”
18×
18. Id. And what Curtis was defending wasn’t President Johnson’s uncouth behavior but the principle of
nullum crimen sine lege: “There can be no crime, there can be no misdemeanor without a law.”
19×
19. Id. ...
“Judge Curtis gave us the law, and we followed it,” Senator William Pitt Fessenden later wrote.
27×
27. STREICHLER, supra note 2, at 173. When the arguments ended and the House prosecutors asked the Senate to vote on one of the charges, they selected one of the speech-related charges on which they were certain the Senate would vote to convict — but Fessenden and six other Republicans surprisingly defected from their party’s position to acquit the President by a single vote.
28×
28. CONG. GLOBE, 40th Cong., 2d Sess., Supp. 411 (1868) (roll call of Art. XI). The final tally was 35 “guilty,” 19 “not guilty” — one less than the two-thirds needed to convict. See U.S. CONST. art. I, § 3.Show More (A week later, the same seven Republicans also voted to acquit President Johnson of two of the other charges that accused the President of violating the criminal statute that forbade him from removing certain cabinet officials.
29×
29. CONG. GLOBE, 40th Cong., 2d Sess., Supp. 414–15 (1868) (roll calls of Arts. II and III); see Tenure of Office Act of 1867, ch. 154, 14 Stat. 430 (repealed 1887).Show More ) These seven acquitters were no friends of President Johnson. They included Senator Lyman Trumbull, coauthor of the Thirteenth Amendment, and Senator James W. Grimes, coauthor of the Fourteenth.
30×
30. CONG. GLOBE, 40th Cong., 2d Sess., Supp. 414–15 (1868); David B. Kopel, Lyman Trumbull: Author of the Thirteenth Amendment, Author of the Civil Rights Act, and the First Second Amendment Lawyer, 47 LOY. U. CHI. L.J. 1117, 1119 (2016); Earl M. Maltz, The Fourteenth Amendment as Political Compromise — Section One in the Joint Committee on Reconstruction, 45 OHIO ST. L.J. 933, 958 (1984).Show More But as Senator Grimes explained, “I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable President.”
31×
31. CONG. GLOBE, 40th Cong., 2d Sess., Supp. 424 (1868) (opinion of Sen. James W. Grimes). Like Curtis, Senator Grimes refused to accept an interpretation of “high Crimes and Misdemeanors” as something that changed “according to the law of each Senator’s judgment, enacted in his own bosom, after the alleged commission of the offense.”
32×
32. Id. at Supp. 423–24. He wanted President Johnson out of office — but thought that a conviction for a crime without the violation of any law would be “construed into an approval of impeachments as part of future political machinery.”33×
33. Id. at Supp. 424. But see GORDON-REED, supra note 3, at 138–39 (arguing that Senator Grimes was also persuaded by promises from President Johnson to cease interfering with Reconstruction).Show More