Stanford Law’s David Sklansky on Articles of Impeachment

On Tuesday, Dec. 10, 2019, House Democrats issued articles of impeachment of President Donald Trump—focusing on abuse of power and obstruction of Congress. A vote in Congress on these articles is expected to follow soon. The matter, if adopted, will then go to the U.S. Senate. Here, Stanford Law Professor David Sklansky discusses the articles of impeachment and next steps in this historic process.

First, can you tell us what the Constitution says about impeachment—the bar that must be met to impeach the president?

The Constitution provides that the president can be impeached on charges of “treason, bribery, or other high crimes and misdemeanors.”  There’s widespread agreement that the phrase “high crimes and misdemeanors” is a term of art, and that it is meant to reserve impeachment for serious violations of the public trust.

Stanford Law Professor David Sklansky

Did the two articles of impeachment issued today—Abuse of Power and Obstruction of Congress—meet that bar? Are there legal grounds to impeach President Trump?

I think so.  They closely parallel the grounds that were thought sufficient to justify the impeachment of President Nixon. Nixon resigned before the full House of Representatives had a chance to vote on his impeachment, but the House Judiciary Committee had approved three articles of impeachment against him:  obstruction of justice (having to do with delaying and impeding the investigation into the Watergate break-in), abuse of power (in particular, trying to use federal investigations for political purposes), and defiance of congressional subpoenas.  The articles of impeachment against Trump charge him with using the powers of his office to pressure Ukraine to launch investigations for his political benefit (that’s the abuse-of-power article) and defying congressional subpoenas and ordering his subordinates not to cooperate with the congressional investigation (that’s the obstruction-of-Congress article).

Did anything surprise you in the resolution? Anything missing?

Nothing in the resolution is truly surprising, because it tracks very closely the events and the legal arguments that were the focus of the recent hearings before the House Intelligence Committee and the House Judiciary Committee.  There are lots of other allegations against President Trump that might have been included in the articles of impeachment, but the Democratic leadership in the House of Representatives decided to keep the resolution narrowly focused.

The resolution does say in passing that the pressuring of Ukraine was “consistent with President Trump’s previous invitations of foreign interference in United States elections.”  That looks like an effort to straddle the fence.  It keeps the charges focused on Ukraine and 2019, but it could allow the prosecutors in an impeachment trial to go into Trump’s welcoming of Russian meddling in the 2016 election, on the theory that the prior misconduct throws light on what he later was trying to accomplish in his dealings with Ukraine.

You are a former prosecutor. Based on the evidence presented in the Congressional hearings, would you feel confident bringing charges?

Yes, definitely.  Compared to the evidence in most bribery and corruption cases, the evidence in this case is very, very strong.  You almost never have a transcript of the criminal defendant saying, “I want you to do me favor,” and then explicitly setting out what he is demanding.  You almost never have a close associate of the defendant admit publicly the true motivations for the demand, as White House Chief of Staff Mick Mulvaney did with regard to President Trump and Ukraine.  And you virtually never have so many credible witnesses corroborate what was demanded and why.

That all has to do with the evidence for the abuse-of-power article.  Regarding the obstruction-of-Congress article, there is no dispute about the facts at all; the only question is whether it was OK for the president to try to stonewall Congress the way he did.

Did the Democrats follow House rules in these proceedings? There have been some allegations that the process has been unfair to the president.

The public proceedings before the Intelligence Committee and the Judiciary Committee did follow House rules.  Those were similar in many ways to the rules followed during the impeachment proceedings against President Nixon and later President Clinton, but they also differed in some respects.  I don’t think the differences made the proceedings unfair.

The Intelligence Committee held two sets of hearings.  The first were behind closed doors, and the second were public.  The president and his lawyers were not invited to participate in either, but Republican members of the committee had the same rights to question witnesses as the Democrats.  The hearings before the Judiciary Committee were public, and President Trump and his lawyers were invited to participate, but chose not to.

When the House was considering articles of impeachment against President Nixon, it held only one set of hearings:  public hearings before the Judiciary Committee. The same was true when President Clinton was impeached.  In both cases much of the investigative work had been done earlier, in secret:  by special counsels working within the Department of Justice, and before grand juries.  (In Nixon’s case, the Senate had also held hearings.)  The closest analogy to the role played by the Intelligence Committee in this case was what the special counsels and grand juries did in the Nixon and Clinton cases, and all of that was behind closed doors, outside the presence of the president and his lawyers—and without the check that Republican members of the Intelligence Committee could play in this case.

The Republicans have complained that the proceedings before the Intelligence Committee and the Judiciary Committee were unfair because, as the minority, the Republicans didn’t have the power to subpoena witnesses or to object to witnesses called by the Democrats.  There is something to this complaint, but not much.  It is true the Republicans, as the minority party, could subpoena witnesses in these hearings only with the concurrence of the Democrats.  But that is largely how the hearings operated in the Nixon and Clinton impeachment probes, as well.

It’s also true that the rules for the recent hearings didn’t require the committee chairs—Rep. Adam Schiff in the Intelligence Committee and Rep. Jerry Nadler in the Judiciary Committee—to consult with the ranking minority members before issuing subpoenas.  And that is a significant difference from the rules that applied during the Nixon and Clinton impeachment proceedings.  But it corresponds to a general shift in the practice of House committees, which took place in 2015, during the Obama Administration, when the House was controlled by Republicans, and it is a shift that was pushed through at that time by the Republican leadership, over strong objections from the Democrats.

What about the charge from some that this process has been rushed? Why not issue subpoenas to get key witnesses to testify?

Litigating the validity of subpoenas can take months if not years.  The Democrats say that they did not want to allow the White House to stall the proceedings, and that even without the Administration’s cooperation the evidence of impeachable offenses was strong enough to warrant moving forward.  This makes sense to me as a former prosecutor.  You never have all the evidence you might want before you move forward with an indictment; you make a decision about whether the evidence you have is sufficient, and whether the additional evidence you could seek is worth waiting for.

And if you think the subject of the investigation is continuing to commit crimes (or impeachable offenses), you’re much less likely to want to wait around for more evidence that could stretch out the investigation for months or years.

Assuming that the House votes to impeach, what are the next steps regarding process?  Does Senate Majority Leader McConnell have a lot of influence on that process? Or are there rules that dictate the proceedings?

The Constitution says that the next step would be a trial in the Senate, presided over by the Chief Justice of the United States.  The Senate has its own rules for how an impeachment trial proceeds.  Those rules require, for example, that the trial begin the day after the House sends articles of impeachment to the Senate.  But the Senate can decide otherwise under the rules, and McConnell has said that the trial wouldn’t begin until sometime in January.  More fundamentally, the Senate can change its rules for impeachment trials whenever it wants to, and McConnell will have a lot to do with whether that happens, and about how the trial will be conducted.