A move in the House to impeach President Trump for derogatory remarks is triggering a debate among constitutional law scholars, some of whom warn Democrats risk flouting the Constitution’s standard for impeachment and threatening free speech principles.
Democratic Rep. Al Green of Texas says he will force an impeachment vote Wednesday afternoon in response to Trump suggesting four nonwhite Democratic congresswomen should “go back” to their “original” countries.
The Constitution says a president may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” But Green said Monday he would force the vote in response to Trump’s “bigotry” and said Tuesday the impeachment would be for “the harm” of Trump’s remarks.
A majority vote is needed in the House. A subsequent two-thirds Senate vote is needed to remove a president.
“Bigotry is not a grounds for impeachment. There is a difference between what is grounds for condemnation and what is proper for impeachment,” said George Washington University law professor Jonathan Turley.
“Such an amorphous standard would not only negate free speech protections for presidents but make the impeachment standard itself functionally meaningless,” Turley said. “It would do precisely what the Framers wanted to avoid: to allow impeachment by impulse.”
The House voted 240-187 Tuesday to condemn Trump’s “racist” remarks about the four left-wing congresswomen — Reps. Ilhan Omar of Minnesota, Alexandria Ocasio-Cortez of New York, Rashida Tlaib of Michigan, and Ayanna Pressley of Massachusetts — with four Republicans joining Democrats. It’s unclear how many Democrats will support impeachment.
In May, Trump scoffed at impeachment, saying “I can’t imagine the courts allowing it.” Most scholars, however, agree impeachment cannot be overturned in court, though a Senate removal might be different.
UCLA law professor Eugene Volokh, a free speech expert, said he believes enough Democrats will vote against impeachment after they “look at the Constitution and say, ‘Is this high crimes or misdemeanors?”’ and reflect on setting precedent.
Volokh said lawmakers “ought to consider the American tradition, which is not to use impeachment lightly,” and to reflect on “the precedent it creates for future situations.” He adds: “I’m sure they will be considering it … If not all of the Democrats, enough to swing against it.”
Two presidents have been impeached, Andrew Johnson in 1868 and Bill Clinton in 1998. Neither were removed. A 1993 Supreme Court ruling, Nixon v. U.S., upheld the removal of a judge by impeachment, finding it a “political” matter that the courts could not review. That precedent is cited by scholars who argue Trump can’t overturn an impeachment.
Some advocates for impeaching Trump have expressed qualms about Green’s approach.
Harvard law professor Laurence Tribe, who says alleged obstruction of justice in the Mueller Report constitutes impeachable crimes, has taken issue with Green’s “overly broad definition of impeachable conduct.”
“Policy differences don’t suffice to make something impeachable,” Tribe said.
But Tribe said alleged racism motivated Johnson’s impeachment, and that Congress’s rationale is off-limits to courts anyhow.
“There are many impeachable offenses, like using the pardon power to reward your political allies and hurt your political enemies, or deciding to spend your entire presidency hobnobbing with Saudi princes rather than doing any of your duties as chief executive, that are blatantly impeachable offenses but don’t violate any criminal statute,” Tribe added.
Michael Gerhardt, a law professor at the University of North Carolina, Chapel Hill, said the question of whether Congress has the power is distinct from whether that decision can be reviewed.
“The Congress does not have the power to impeach, convict, and remove any official for anything other than impeachment offense,” he said, also noting that “the president has his First Amendment rights, but they are not absolute.”
“The terms ‘high crimes and misdemeanors’ do cover noncriminal offenses. Bigotry may or may not be, depending on the context,” Gerhardt said. “Here, the president is in a position much like Andrew Johnson was; indeed, one article of impeachment against him was based on his racist language and profanity in demeaning Congress.”
Although the consensus of legal scholars is that Supreme Court precedent makes impeachment a nonappealable “political” question, some scholars have theorized legal fights.
Harvard law professor emeritus Alan Dershowitz speculated that the Supreme Court chief justice, who presides over Senate trials, could dismiss charges. And Volokh said that he would imagine the Supreme Court making some quick ruling if Trump challenged Senate removal.
Turley notes “the likelihood is low” of Trump succeeding if impeached, but that he’s not ruling out the possibility.
“Most impeachments involve multiple articles of impeachment, so that any flawed articles are not determinative,” Turley said. “Courts have generally left the merits of impeachment to Congress. Of course, we have not had an impeachment that was expressly based on a claim that is demonstrably outside of the constitutional standard.”
Green forced two previous impeachment votes, failing 364-58 in December 2017 and 355-66 in January 2018. The earlier version of Green’s bill listed offenses such as Trump defending pro-Confederacy demonstrators in Charlottesville, Virginia, and deriding NFL players.
