Trump, Russia, and the Misconduct of Public Men

By Andrew C. McCarthy

Wednesday, July 12, 2017

‘Collusion is not a crime.”

“Are you kidding? It could be a campaign-finance-law violation. After all, opposition research is a ‘thing of value.’ There could be a conspiracy to defraud the United States by impeding the legitimate functions of the Federal Election Commission. Plus, Trump said his campaign had nothing to do with Russia. He lied to the public.”

“Lying to the public is not a crime.”

This is the sort of banter that went on all day Tuesday, following revelation of the devastating e-mail exchange between Donald Trump Jr. and Rob Goldstone. Plainly, both sides of the political aisle are badly misinformed about the Constitution’s take on executive misconduct. When the president’s behavior is at issue, it is the Constitution, not the criminal law, that is paramount.

On the Right and in Republican circles, there are staunch Trump supporters, as well as reluctant ones (including moi) who voted for Trump reasoning that the only practical alternative was Hillary (not an alternative). The former are all in, seemingly no matter what Trump does; the latter support him when he pushes conservative policies but are not invested in him, politically or personally. Trump-Russia brings the divide into sharp relief.

The tepid-on-Trump camp is aghast at revelations of the extent and nature of the Trump clan’s ties to a murderous anti-American regime — and, speaking only for myself, humbled by analysts who were more troubled by the circumstantial evidence in the absence of smoking guns. Trump fans, to the contrary, are doing the full Clinton: doubling down on the absurd insistence that Trump-Russia is a big ol’ “nothingburger.”

“Look at the U.S. penal code,” they scoff, defying outraged Americans to identify a single criminal-law violation that has been established. There is no crime, they maintain, in colluding with the Russian government to collect and broadcast damaging information about an opposition American candidate.

On the Left, meanwhile, are the legal beagles. They are busily squirreling through the law books and straining their creative brains to come up with an offense — some novel prosecution theory under which the Trump-Russia facts can be pigeonholed into a campaign-law violation, a computer-fraud crime, or maybe even misprision of a felony (i.e., a failure to report one).

One side is mulishly determined not to see outrageous misconduct. The other side is inadvertently trivializing it.

But the question is not whether collusion is a crime. It is whether collusion is a high crime or misdemeanor.

When I wrote Faithless Execution, my 2014 book about impeachment, I well understood that there was no prospect of impeaching President Obama. Indeed, I argued in the book that it would be not merely foolish but counterproductive to commence impeachment proceedings against a president as to whom there was no political prospect of removal from office. A failed impeachment effort would be like a license to mutilate. It would tell the president who escaped unscathed that he was invulnerable — it would actually encourage more misconduct.

But there was still, I believed, a need for such a book. The wayward public debate after disclosure of the Trump Jr. e-mails proves the point. Not enough of us who are informing the public are informed ourselves about how our constitutional system is supposed to work.

Nothing caused the Framers greater anxiety than the new office they were creating, the presidency of the United States. They were rightly convinced of the need in a dangerous world for an energetic executive able to act swiftly and decisively in times of crisis. But, being close students of human nature, they were equally worried that the enormous powers attendant to the office could be abused, that they could fall into the hands of an unfit incumbent, or that they could come under the influence of foreign powers.

They thus gave Congress a dispositive check: the power of impeachment and removal. Impeachment, not criminal prosecution, is our Constitution’s response to egregious executive malfeasance.

Thus, the critical part: The standard for impeachment, the commission of “high crimes and misdemeanors,” is not concerned with criminal offenses found in the penal statute books and suitable for courtroom prosecution. It relates instead to the president’s high fiduciary duty to the American people and allegiance to our system of government.

Alexander Hamilton put it best in Federalist No. 65. Impeachable offenses are those

Which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.

The bickering over collusion “crimes” misses the point. If an unfit person holds the presidency, the danger to our society is that he will abuse the power that he wields. The imperative is to remove him from office. Whether, in addition to that, his misconduct also happens to violate penal statutes and be ripe for criminal prosecution is a side issue. It is a subordinate legal question, whereas fitness for the presidency is a core political issue. That is why it is rightly observed that impeachment is a political remedy, not a legal one.

We are a good distance from being able to assess whether President Trump should be impeached. It is specious, though, to suggest that this is not a question worthy of exploration, or that its answer hinges on whether collusion with Russia amounts to a criminal-law violation.

Our aspiration for presidential fitness is something more than “nothing he has done is indictable.” Abuses of trust go to the core of self-determining, republican governance. It is fatuous to fret over whether they also amount to, say, campaign-finance infractions — even “major” offenses in that category, such as the 2008 Obama campaign’s acceptance of nearly $2 million in illegal contributions, are so trivial in the greater scheme of things that they are commonly settled by the payment of an administrative fine.

All politicians practice a certain economy with the truth, but flat-out lying to the American people on a significant matter is a major abuse of trust. And forfending collusion with a foreign sovereign was an imperative for the Framers.

That is why, for example, the Constitution requires that the president be a “natural born citizen.” The presidency is the only federal office for which naturalized citizens are not qualified. That is not because we think them any less fit for the obligations of citizenship; it is because the Framers believed the presidency and its commander-in-chief powers had to be fortified against the potential of foreign intrigue.

The principal duty of the president is to safeguard the nation against foreign threats to our security and system of government. If a president instead has put them at greater risk, if he has conducted himself in such a way as to raise the specter of blackmail by a foreign power, it is always appropriate to question his fitness for the nation’s highest office.

We are closer to the beginning than to the end of the Trump-Russia drama. The Framers wisely made removal from office hard to do, which is why impeachment is so very rare. Even though it takes only one “high crime and misdemeanor” to warrant impeachment, you could have a hundred of them and a president still would not be removed unless there was a strong political consensus for doing so.

The requirement of a two-thirds supermajority Senate vote in impeachment cases ensures this. No president will be removed from office absent misconduct sufficiently grave that support for impeachment cuts across our deep partisan and ideological divides. Remember: It is a political remedy, not a legal one. It is an easy thing to condemn President Trump’s canoodling with Putin’s regime. It will be more difficult to weigh it against other political dalliances with anti-American regimes that we have tolerated. There was no move to impeach President Obama over the Iran deal and all the chicanery attendant to it. Democrats had no qualms about nominating Hillary Clinton despite the Clinton Foundation’s shameful acceptance of millions in foreign funding and her consequent green-lighting, as secretary of state, of Russia’s acquisition of major American uranium reserves.

The investigation of Trump’s relationship with Russia will continue. We need to get to the bottom of exactly what it was, exactly what was wrong about it, and how that impropriety affects his ability credibly to carry out his duties — informed by precedents we seem to have established for executive relations with foreign sovereigns.

The conclusions to be drawn about the president, however, will have little or nothing to do with whether prosecutable crimes have been committed. The questions are those that arise from “the misconduct of public men”: abuse of trust and fitness for office.