Harvard Legal Scholar Brings Historical Perspective to Impeachment Process

Harvard Legal Scholar Brings Historical Perspective to Impeachment Process

"Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?"

Cass Sunstein, a professor at Harvard Law School and one of the nation's top administrative legal scholars, spoke about the constitutional history of impeachment at a Harvard Coop lecture last Thursday. The free event was held on the third floor of the bookstore's Harvard Square location and was organized in promotion of Sunstein's recent book Impeachment: A Citizen's Guide.

A former administrator of the White House Office of Information and Regulatory Affairs during President Obama's first term, Sunstein has been making his rounds on the media circuit for the past few months as the impeachment inquiry against President Donald Trump continues to heat up. Originally released in 2017, Sunstein's Impeachment was re-released this past June with an added analysis of the Mueller report.

Despite this context, the current president was not a major focal point during Sunstein's hour-long lecture. The legal scholar eventually addressed this lack of Trump punditry, assuring the roughly two dozen Coop audience members that he would eventually comment on the president's ongoing impeachment inquiry.

"I bet you're surprised and disappointed that I didn't mention the name of our current president," Sunstein said, "but I'm willing to do that during the Q&A."

Instead, Sunstein's lecture was primarily focused on providing a historical perspective on the impeachment process. He explained how there was a great deal of debate amongst the Founders regarding how impeachment should be defined in the U.S. Constitution.

"Virginia's [Constitutional Convention delegate] George Mason was the most eloquent. He said 'No point is of more importance than that the right of impeachment should be continued... Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?'"

Sunstein went on to explain that in the working draft of the Constitution, the only two impeachable offenses explicitly mentioned were treason and bribery. Mason thought that this was insufficient and suggested that "maladministration" be added as a catch-all offense.

James Madison took issue with the vagueness of such a charge, arguing that the Senate would be able to impeach any president that they politically disagreed with under the guise of maladministration. Eventually, the men reached a compromise with the phrase "other high Crimes and Misdemeanors," which has remained in Article I of the Constitution ever since.

Falling back onto previous presidential impeachment inquiries as case studies, Sunstein said that "high Crimes" shouldn't be thought of traditional crimes, but as abuses of power that are "misuses of distinctly presidential authority."

Using this definition, Sunstein argued that what Nixon did ("using the FBI and CIA to investigate his political enemies") was an impeachable offense, but Bill Clinton's public crimes ("potential perjury and obstruction of justice") didn't technically warrant impeachment.

Honoring his promise, Sunstein did turn to the question of President Trump's impeachability during the Q&A portion of the event. He said that many of the previous concerns over Trump's presidency — that he's unfit for the office, that he's violating the oath of office — don't meet the threshold for impeachable offenses.

One audience member asked if Trump's refusal to address climate change could be seen as an impeachable violation of U.S. citizens' civil liberties, but Sunstein quickly shot down this idea with a simple question: "That's just rhetoric, no?"

Another question was about whether Trump could be impeached if he lost re-election but refused to leave office. Sunstein explained that this scenario would likely trigger a larger constitutional crisis rather than an impeachment inquiry.

Sunstein didn't spend a lot of time discussing the Ukraine scandal — he only said the phrase "Quid pro quo" once during the entire hour-long lecture — but he did offer up what he thought was the Trump team's strongest argument against impeachment: that the president had credible reason to believe that there was serious corruption involved in the previous administration's dealings in Ukraine.

Still, he said that if President Obama had approached him with that exact scenario back when he was Sunstein's boss at the White House, Sunstein would have advised against any action.

"I would have told him 'Don't get within a million miles of that,'" Sunstein said. "'That's impeachment territory.'"