Patrick Semansky/AP Photo
President Donald Trump walks to Marine One on the South Lawn of the White House, September 12, 2019.
The Open Mind explores the world of ideas across politics, media, science, technology, and the arts. The American Prospect is re-publishing this conversation.
Frank Bowman III is professor of law at the University of Missouri and visiting professor at Georgetown Law. A constitutional scholar, Bowman is author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. This interview has been edited and condensed for clarity.
Alexander Heffner: Historically frame for us what the catalysts have been in moving the momentum, the bar towards impeachment. You could identify tweets, you could mention Helsinki or Charlottesville as events that morally, ethically, if not legally, ought to be a catalyst for what we consider high crimes and misdemeanors.
Frank Bowman III: I think it’s dangerous constitutionally to think about impeaching presidents for intemperate or even racially inflammatory remarks. That’s a tricky road to go down. I think social values change over time and that would be something I would be loath to suggest as a proper ground for impeachment. [Andrew] Johnson was overtly in favor of essentially returning the black freed men of the post-Civil War era to a position of effectively being slaves. I think [that’s] a somewhat different question than Trump’s repulsive language, but as revolting as it is and badly as it reflects on him as a man. But I certainly think there are a number of points on which impeachment could at least be considered against Mr. Trump.
The second volume of the Mueller Report, which I think perfectly plainly establishes that he engaged in obstruction of justice, not only in the technical criminal legal sense but also in the broader constitutional sense, almost exactly analogous and in many ways analogous in particulars to the second article of impeachment passed by the Judiciary Committee against President Nixon. There’s also an obstruction or erosion of the justice system more broadly. He has engaged in a whole variety of behavior deleterious to the rule of law. The Trump administration has essentially stopped cooperating at all with congressional inquiries, not just in matters that relate to the president personally or potential misconduct by himself or his family but essentially the Trump administration has stopped providing meaningful responses to Congress across almost the entire array of legitimate inquiries as part of their legislative and oversight authority.
Heffner: If you wanted to improve the prospects for impeachment, would you not expand the breadth of the wrongdoing morally and legally and say that the racism and the Mueller report findings are one and the same: un-American?
Bowman: I think it is a huge mistake to start talking about impeaching presidents for un-American attitudes. It’s far too easy to start.
Heffner: What about treasonous?
Bowman: Treason has a very narrow meaning, and it’s the only crime that’s actually defined in the Constitution. It refers only to giving aid and comfort to the enemy essentially in a time of war. The framers defined treason extraordinarily narrowly, precisely because British Parliament and for that matter, the crown had used charges of treason against their political opponents for centuries. And the framers made quite sure that they, they did not want loose definitions of treason being thrown around to try to bring down the political opponents of either the administration or Congress, whoever it might be. So it is perfectly plain that whatever else Mr. Trump may have done, he hasn’t committed treason because we’re not in the midst of armed conflict. He hasn’t given aid and comfort to the enemy. Now, one may conclude based on whatever evidence wants, one wants to look at, that he is on Warren to believe favorable to the Russians for reasons which are not yet entirely clear and that under certain circumstances might constitute an impeachable offense, but it ain’t treason under the Constitution of the United States.
Heffner: There are living constitutionalists who would say in response to your assertion that cyber war is war, and the refusal of the mainstream media to acknowledge the hacking of the DNC as analogous to what occurred during Watergate was totally regrettable. But it was also plainly wrong to not view it as a kind of modern day war.
Bowman: However much one may and deplore is a mild word, the behavior of the Russians vis-à-vis the 2016 election and however much one may deplore the behavior of Mr. Trump and his campaign in at the least apparently being willing to accept the assistance in certain respects of foreign power. There is at this point absolutely no evidence, and Mueller cites none. And there isn’t any that in advance of this behavior by the Russians, Trump knew about this behavior or aided and abetted in any way. I am not a big fan of the president as you may gather, but we have to be very cautious about, you know, how we couch our arguments against his behavior. It ain’t treason. He has been a terrible president in many, many ways. I think there are a number of grounds on which at least as, as an historical matter, as a constitutional matter, perfectly valid articles of impeachment could be framed against him, that people across the political spectrum at least ought to be able to support.
Heffner: But if you were to try to learn the lesson from Johnson and Nixon, which is that you have to cast a wide net in terms of defining impeachable activity, how would you do it beyond noncompliance with subpoena and Congressional Investigative Authority?
Bowman: The central point that you’re making is a very important one. If one were going to try to frame articles of impeachment against Mr. Trump, I think it would be a mistake, for example, to limit one’s focus to either section of the Mueller report. Because the real challenge that Mr. Trump presents is not any one thing. It is that across an array of behavior, the obstruction of justice, that basic undercutting of the judicial process by the attacks on judges and so forth and so on, and the hollowing out of the Justice Department from the inside. The defiance of congressional subpoenas, the, his, his essentially turning, he and his family essentially turning the presidency into what Madison called a “scheme of peculation.” That is to say a way of self-enrichment his, his disastrous foreign policy, vis-à-vis our traditional allies and his embrace of autocrats and dictators across the world. And one can go on and on and on. And if you look at the historical record of the kinds of things that the British parliament thought were impeachable the kinds of things that I think the framers thought should be impeachable and the kinds of things that in our own relatively limited history of impeachments, ‘cause there’ve only been 21 of them a little over 200 years. The kinds of things that we have found to be impeachable, there’s an array of behavior that he’s engaged in. But the key is that if you’re going to go out, if you’re going to go down that road, you have to understand that we have in front of us now in this president is that he is in essence the reason that the impeachment clauses were enacted in 1787. He’s the disaster for which impeachment was created. He’s a guy who threatens the entire order of our constitution. And only if you’re going to impeach him, you have to understand that and you have to figure out a way of framing an understandable way for the public, for Congress, why it is he represents such a fundamental threat to the American republic.
Heffner: Yet Nancy Pelosi doesn’t blink on this question of impeachment. She’s a no-go. Doesn’t this go back to my earlier point about a catalyst? You’re talking about the comprehensive case for impeachment legalistically. I’m saying in order to propel a movement towards impeachment, there have to be events or at least a single event that sparks the consciousness of the nation and the legislators to pressure Pelosi to act.
Bowman: I’m not sure that there is such an event sadly. I think that’s because of the polarization of our political parties and changes in the media structure such that it’s not clear to me that no matter what happens, that one is going to be able to rally sufficient support to even commence an impeachment investigation.
Heffner: Pelosi’s in effect then just conceding we’re in a post-impeachment. That it is not a winnable battle.
Bowman: Speaker Pelosi’s made the political calculation that a) maybe that just can’t be effective in the modern media era, and b) I think she’s made the calculation that in the current media environment, that political effect on Democrats is actually is likely to reelect him.
