CommentaryAmericans love to pretend that the Constitution is a legal document. Of course, it’s nothing of the sort. At best, it’s a restatement of an imaginary common ideology, a Rorschach card onto which we project our vision of the ideal legal order. The Constitution enables us to resolve political problems by magically transforming them into legal ones. While it always requires a certain suspension of disbelief, nowhere is constitutional magic stretched more thinly than impeachment.
The Constitution provides, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” But what does that mean? The Constitution provides a process for impeachment and trial, but doesn’t explain when impeachment is proper and when it isn’t.
On December 4, 2019, the House Judiciary Committee launched a hearing on the impeachment of President Donald Trump by hearing testimony from four law professors on what constitutes an impeachable offense. Noah Feldman of Harvard Law School argued that “President Trump’s conduct described in the testimony and evidence clearly constitutes an impeachable high crime and misdemeanor under the Constitution” because he “abused his office by soliciting the president of Ukraine to investigate his political rivals in order to gain personal political advantage,” among other things. Pamela Karlan of Stanford Law School argued that Trump “used the powers of his office to demand that a foreign government participate in undermining a competing candidate for the presidency.” And Michael Gerhardt of the University of North Carolina School of Law observed, “If what we’re talking about isn’t impeachable, then nothing is impeachable.” By contrast, Jonathan Turley of the George Washington University Law School urged caution, and advised against “lowering impeachment standards to fit a paucity of evidence and an abundance of anger.”
But all of the law professor testimony was simply beside the point. When the Republicans unsuccessfully tried to impeach Justice William O. Douglas in 1970, Representative Gerald Ford memorably observed, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Ford was right. The House of Representatives can impeach the President for any reason, or no reason at all, and the Senate has absolute discretion whether to convict and remove the President. Impeachment is not a legal process, but a political one.
Perhaps an illustration would be helpful. On August 28, 2014, President Barack Obama committed an impeachable offense. Scandalized news and political figures watched with horror as the leader of the free world addressed the nation on developments in the fight against the Islamic State and Russia’s invasion of Ukraine in a tan suit. For his fashion faux-pas– some might allege that it clearly met the definition of “high crimes” against good style– the rebukes were swift and biting.
“There’s no way, I don’t think, any of us can excuse what the President did yesterday,” claimed Long Island Republican Representative Peter King on NewsMaxTV, “I mean, you have the world watching.” Lou Dobbs of Fox News tweeted: “#Obama in a #TanSuit? What message is the President trying to send?” Others opted for a lighter scolding, roughly the equivalent of censure in the halls of public opinion. GQ’s Jake Woolf offered “a few simple tweaks that could make this look, I don’t know, Presidential.”
It was arguably the dumbest controversy of Obama’s presidency, although it had plenty of competition. But Obama’s tan suit, and every other action or inaction of a President past or present, is an impeachable offense. If the House had decided to impeach Obama on the basis of his tan suit, it would have been a valid impeachment. Presumably, many people would have questioned the wisdom and legitimacy of the impeachment, but no one could have prevented it. And if the House had impeached Obama, the Senate could have convicted him and removed him from office. Surely, many people would have objected and complained that sartorial choices are not a proper subject of impeachment. But their complaints would have been irrelevant, so long as there were enough votes to convict.
Obviously, the law professors testified for a reason. Democrats want to make a political case for impeachment, and Republicans want to make a case against. But at the end of the day, the law that matters can’t be found in constitutional theories advanced by legal scholars. According to Noah Feldman, “If we cannot impeach a president who abuses his office for personal advantage, we no longer live in a democracy — we live in a monarchy, or we live in a dictatorship.” That’s simply untrue.
We can impeach or not impeach a President for anything, without harming any democratic values. All we need are votes. The only relevant “law” is the process provided by the Constitution: how many votes the President has in the Senate. For better or worse, it looks like the answer is “plenty.”
Lucille E. Nguyen is a college student, a research assistant at the University of Kentucky College of Law, and a host of Ipse Dixit, a podcast on legal scholarship. Brian L. Frye is the Spears-Gilbert Associate Professor of Law at the University of Kentucky College of Law and another host of Ipse Dixit.
Suggested citation: Lucille E. Nguyen & Brian L. Frye, Obama’s Tan Suit was an Impeachable Offense, JURIST – Academic Commentary, December 9, 2019, https://www.jurist.org/commentary/2019/11/nguyen-frye-obamas-tan-suit-impeachable/
This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org
