Possibly within a matter of days or weeks Special Prosecutor Robert Mueller or New York federal prosecutors are going to have to confront an significant question: Was it the intent of the American constitutional framers to allow a sitting president to be indicted for a crime, or was impeachment the only recourse to remedy a chief executive who broke the law? In light of the Michael Cohen plea and how it may have implicated Donald Trump, or even possible charges that might be filed against the president as a result of special prosecutor Robert Muller’s investigation, these questions are getting significant scrutiny. However, despite what legal scholars such as Harvard’s Akhil Reed Amar may think, Framers’ intent is largely irrelevant to answering them, and originalism fails to provide an adequate solution.
Ascertaining the constitutional framers’ intent when seeking to determine what is an impeachable offense and whether it is the only remedy for presidential criminal misbehavior is a near futile exercise, from both a historical and linguistic approach. What would Trump have to do to constitute an impeachable offense? Article II, section four lists three possibilities–treason, bribery, and high crimes and misdemeanors.
Treason and bribery are somewhat clear but what are high crimes and misdemeanors? In adopting this phrase the constitutional framers employed language that had existed in England since 1386 when the Parliament used the term to refer to a variety of actions including the misappropriation of funds or dereliction in the performance of official duties. Mal-administration comes to mind as a close meaning, although when that word was proposed at the Constitutional Convention by George Mason, James Madison objected to it and substituted high crimes and misdemeanors in its place. Mal-administration is not simple policy disagreement or even sloppy administration, it needs to rise to perhaps a constitutional level, perhaps even including something approaching gross negligence and dereliction of duty.
An alternative meaning for the phrase was offered in 1970 when the House of Representatives tried to impeach Supreme Court Justice William Douglas. The Congressman Gerald Ford said an impeachable offense was “whatever a majority of the House of Representatives considers it to be at a given moment in history.” In truth, Ford is correct–impeachment is a matter of political judgment where Congress ultimately decides the fitness of a person to serve in office, such as the president. That is precisely the point here.
What is an impeachable offense from a historical and linguistic point of view? Did the constitutional framers simply intend to carry over the meaning of high crimes and misdemeanors from England so that it would apply the same here? There is no historical answer to this question. Any archival documents are indeterminate to what they framers meant, let alone determining who the framers are. Were they all the individuals who attended the 1787 Constitutional convention? Only the drafters and debates of Article II? Or more broadly, did it include all those in the states who voted on ratification of the Constitution?
Conversely, as linguistics and language philosophers such as Ludwig Wittgenstein contend, words get their meaning from their use and context experts in textual hermeneutics such as Hans Georg Gadamer tell us that we can only understand the past through the lens of our current experiences. We cannot reconstruct history and tell it like it was, as Leopold von Ranke thought–but must view history, including ascertaining the meaning of historical acts and texts–in light of our experiences and perspective. Finally, philosopher Leon Goldstein and I have argued that words have meanings that are historically contingent and change their meanings over time. What someone referred to as the British Parliament in 1775 is different than what one refers to today because the institution of the parliament is different today compared to then.
How all this applies to Trump is that whatever the Framers might have thought about whether sitting presidents could be charged with crimes, only impeached, or both, is impossible to resolve. Pure originalism, whatever that is, is impossible. That is why nearly from the beginning of its history the US Supreme Court has adopted functionalism as a dominant mode for interpreting the Constitution. In famous cases such as Marbury v. Madison and McCulloch v. Maryland Chief Justice John Marshall looked to structure of the US Constitution and sought a functional answer to what the document meant. We need to understand the Constitution as a blueprint for the national government. This blueprint outlines the core values of what our democracy is supposed to represent and then how our institutions perform to fulfill these values.
At its core the US Constitution stands for a small cluster of values that included limited government, rule of law, separation of powers, and checks and balances. There is no inherent government authority–the Constitution defines the limits of federal authority American democracy is not a monarchy. Our Declaration of Independence, especially the second half, is a bill of particulars against the abuses of kings. The US president is not a king. The King perhaps can do no wrong, but presidents can, and they are not above the law. We should always think of federal power as subject to limits–no one person or branch has absolute authority.
Even if one could ascertain the original intent of the constitutional framers regarding what is an impeachable offense and whether a president could be charged with a crime, functionally it makes no sense to ask this question today. Impeachment is a political judgment and in an era of partisan polarization, relying upon it as the sole remedy for criminal behavior for a president makes no sense. Remember, the framers did not write a constitution anticipating or intending political parties to exist, especially of the type that have emerged today. Impeachment simply is not a viable remedy to check allegations of presidential criminal behavior.
Forty-four years ago in a different political climate it might have made sense to declare a President Nixon an unindicted co-conspirator for his actions in Watergate and its cover up. But President Ford’s pardon of Nixon de facto if not de jure suggested he doubted that acts of the president could not be criminal. A federal court agreed. Today, the political climate is very different, suggesting that impeachment as an option is not there and that functionally, if one is to treat seriously the idea that presidents have to be held accountable for their actions, they must be subject to criminal prosecution.