The Clinton Impeachment Is Not a Precedent for Trump

(Bloomberg Opinion) -- On both sides of the political spectrum, a new argument is gaining traction: The impeachment of Bill Clinton is a strong precedent for the impeachment of Donald Trump.

It's a bad argument, unfair to both presidents.

The impeachment clause is a direct outgrowth of the American Revolution. The constitutional phrase “high crimes and misdemeanors” refers to egregious abuses of official authority.

It means, in the words of Gouverneur Morris at the Constitutional Convention, that “the people are the King.”

If a president tramples on civil liberties, punishes dissenters or pays no attention to the separation of powers, he can be impeached. If a president shoplifts, fails to pay his taxes or cheats on his wife, he is not impeachable.

Violations of the criminal law are not necessarily a legitimate basis for impeachment. And a president can be impeached for abusing his authority, even if he has not committed any crime.

In the Watergate era, when President Richard Nixon faced an impeachment proceeding (and resigned before a formal vote), both Democrats and Republicans took the constitutional standard seriously.

They acted with dignity. They focused on abuses of presidential authority, as through Nixon's efforts to undermine the electoral process and to use the Internal Revenue Service and the Federal Bureau of Investigation for political purposes and in violation of people's constitutional rights.

By contrast, the impeachment of Bill Clinton was politically motivated – and it did not come close to meeting the constitutional standard.

True, Clinton was alleged (among other things) to have perjured himself and to have obstructed justice in connection with the sexual harassment suit brought by Paula Jones. Those are serious allegations. But they are not the kind of wrongdoing that triggers the impeachment clause.

Invoking the Clinton precedent as a basis for impeaching Trump, Bret Stephens of the New York Times approvingly quotes Republican Senator Lindsey Graham, who said in 1998 that Clinton “lied under oath numerous times, that he tampered with evidence, that he conspired to present false testimony to a court of law. We believe he assaulted our legal system in every way.”

Maybe so, but Clinton's conduct is not what the impeachment clause is about. To use the Clinton impeachment as a precedent for Trump would compound a grave constitutional blunder. That's something for both Democrats and Republicans to avoid.

If Trump had affairs and arranged to pay women to keep quiet, he would not be impeachable for that reason. The real problem for him lies elsewhere.

At a key moment in the Constitutional Convention, the delegates were debating whether to have an impeachment clause at all. In general, the arguments in favor of the clause focused on abuse of authority.

James Madison warned, “He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.” Edmund Randolph noted, “The Executive will have great opportunitys of abusing his power.”

But there was one exception to the focus on abuse of authority while in office. George Mason urged, “No point is of more importance than that the right of impeachment should be continued.” His central example took the form of this question: “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”

Mason was speaking of situations in which a president succeeded in corrupting members of the Electoral College. But his principle was broader.

Above all, the founding generation sought to create a republic. Because of their commitment to self-government, they saw the electoral process as sacrosanct. If a president “procured his appointment” through “corruption” – well, that is one thing that the impeachment clause is for.

It follows that if any president conspired with a foreign nation to obtain his office, the clause would be triggered. It also follows that the real issue, right now, is the admission by Michael Cohen, Trump's former lawyer, that he made payments to two women in violation of federal campaign laws “in coordination with and at the direction of a candidate for federal office.”

To make matters far worse, he did so “for the principal purpose of influencing the election.”

It is too early to make definitive statements about how Congress should respond to that devastating admission. But from the constitutional point of view, Cohen's admission, and not the supposed Clinton precedent, is the right focus.

(Cass R. Sunstein is the author of "Impeachment: A Citizen's Guide," published in 2017.)

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of "The Cost-Benefit Revolution" and co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2018 Bloomberg L.P.