What the ‘Expert’ Panel Should Have Told You About Impeachment—But Didn’t

What the ‘Expert’ Panel Should Have Told You About Impeachment—But Didn’t
Constitutional scholars (L-R) Noah Feldman of Harvard University, Pamela Karlan of Stanford University, Michael Gerhardt of the University of North Carolina, and Jonathan Turley of George Washington University are sworn in prior to testifying before the House Judiciary Committee in the Longworth House Office Building on Capitol Hill in Washington on Dec. 4, 2019. Alex Wong/Getty Images
Rob Natelson

This short essay does what the House Judiciary Committee’s panel of “expert witnesses” didn’t successfully do.

First, it explains the meaning of the Constitution’s “high Crimes and Misdemeanors” standard. Next, it discusses how that standard applies to President Donald Trump’s interactions with Ukrainian President Volodymyr Zelensky. Finally, it details the kind of evidence the House Judiciary Committee should gather to determine whether the president committed an impeachable offense.

Many phrases in the Constitution—such as “necessary and proper,” “Privileges and Immunities,” and “Convention for proposing Amendments”—carry specialized 18th-century meanings not obvious to the modern reader. Recall that most of the leading Founding Fathers were lawyers and the Constitution is a legal document. Some of these phrases derive from 18th-century law.

Therefore, to understand them you have to consult 18th-century legal materials in addition to better-known sources such as the 1787 convention debates or the Federalist Papers.

Unfortunately, most of the scholars called by the House Judiciary Committee to address the meaning of “high Crimes and Misdemeanors” were not able to do so accurately.

According to the authoritative Westlaw database, two of the three Democratic-appointed witnesses have published no scholarly work on impeachment: Their specialties are in other areas. None showed any familiarity with 18th-century fiduciary standards—which (as explained below) are part of the law of impeachment. All of the witnesses voted against Trump, and several have been involved in anti-Trump activity.

It’s not surprising, therefore, that, except for professor Jonathan Turley’s heavily footnoted 53-page written statement, the testimony was biased and superficial.

What Is the Standard?

Impeachment law isn’t for amateurs. It rests on English parliamentary history extending at least as far back as the 1300s. Furthermore, impeachment standards evolved over time. To understand the Constitution’s rules, we must know what the standards were when the Constitution was adopted. We can do so by consulting 18th-century parliamentary records and legal materials.
Here’s some of what they tell us:
  • The term “high Crimes” means, approximately, “felonies.”
  • The phrase “high ... Misdemeanors” refers to what the founding generation called “breach of trust” and what modern lawyers call breach of fiduciary duty. Fiduciary duties are the legal obligations imposed upon those who manage the affairs of other people—bankers, corporate executives, accountants, guardians, and so forth. In broad outline, fiduciary law when the Constitution was adopted was similar to what it is today.
  • In the 14th and 15th centuries, an official could be impeached because Parliament disagreed with his policy decisions. However, as several American Founders recognized, by the 18th century, this was no longer true. The official must have violated (in the words of several sources) “the known and established law.” This limited impeachment to serious crimes and fiduciary breaches.
  • The trial in the upper house of the legislature was a judicial proceeding, not primarily a political one. As the 1782 edition of the popular Jacob’s Law Dictionary noted, “the same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.” The hearsay and impressionist evidence gathered by the House Intelligence Committee isn’t admissible.
The core of the case against Trump is that he used his political position to seek reelection assistance from a foreign government. Although there’s dark talk of crimes committed, the principal charge is fiduciary rather than criminal. In other words, a “high ... Misdemeanor.”

House Democrats have struggled to define Trump’s alleged offense. Initially, they described it as a “quid pro quo.” Then they employed the term “bribery.” The legally correct designation is “self-dealing.”

Self-dealing is betraying your employer’s interests to enrich yourself. It’s a violation of the fiduciary duty of loyalty.

We can assume the president might benefit from a Ukrainian investigation, but that doesn’t mean asking for an investigation was self-dealing as defined by fiduciary, and therefore by impeachment, law. There’s nothing unusual or improper about a president asking a recipient of U.S. foreign aid to address corruption. As for seeking political advantage: If we punished every politician who did that, they would all be swinging from the yardarm.

This is as true in foreign as in domestic affairs. When President Barack Obama told the Russian president he would have more flexibility after his reelection, he was saying (1) an agreement now would benefit both Russia and the United States, but (2) I’m going to sacrifice our mutual interests for the present because such an agreement might hurt my reelection campaign. Was this impeachable self-dealing? Almost certainly not.

So where is the divide between “normal” conduct and impeachable conduct? To answer this, we need to weigh at least three factors: impeachment precedent, the national interest, and the practice of other presidents.

Impeachable Conduct

For defining the Constitution’s phrase “high ... Misdemeanors,” the most important precedents (although not the only ones) lie in 18th-century impeachment and fiduciary law.

An 18th-century impeachment treatise outlines the specific facts by which several officials were impeached for what we now call self-dealing.

They include the following: (1) the official enriched himself at the expense of the Crown by arranging for royal pardons, (2) he stole funds from the Royal Navy, (3) he confiscated ships and cargoes without due process and appropriated the proceeds, (4) he obtained “exorbitant grants of lands and money, to the great detriment of the revenue,” (5) he seized forfeited land that should have gone to the Crown, and (6) acting through a strawman, he took the proceeds from timber sales in the king’s forests.

All these cases boil down to stealing public property. They don’t look like the Trump–Zelensky dealings at all.

Another part of the answer lies in whether Trump violated the national interest. As a general rule, self-dealing generally isn’t just enriching yourself. It’s enriching yourself at the expense of your employer. If Trump’s interests were aligned with those of the country, there was no fiduciary breach.

Despite Lt. Col. Alexander Vindman’s complaint that Trump violated “the consensus of the interagency,” the question of whether Trump acted contrary to the national interest is a difficult one to answer.

Perhaps we had a national interest in not asking Zelensky to investigate. But we also had a national interest in asking, because it would be useful to know if Ukrainian officials were trying to meddle in our presidential elections. And it would be useful to know whether the family of a leading presidential candidate is engaged in corruption. Remember: the president asked only for an investigation, not for a pre-determined result.

Thus, you can argue the “national interest” issue both ways. It looks more like a policy question than a clear case, such as theft of public funds.

Still another part of the answer lies in how similar officials act in similar circumstances. In the absence of a crime, if you want to determine whether a banker handled funds properly, you should investigate how bankers usually handle funds. If you wish to determine whether an investment adviser gave reasonable advice, you should consult what other reputable advisers recommend in the same circumstances.

Similarly, to decide whether Trump engaged in impermissible self-dealing, we need testimony about how other officials conduct themselves. We know, for example, that then-Vice President Biden explicitly made aid to Ukraine conditional on firing a Ukrainian prosecutor. If that conduct wasn’t impeachable (and I don’t believe it was), then Trump’s more tepid conduct certainly isn’t impeachable.

Thus, the Judiciary Committee should ask for testimony from officials of prior presidential administrations, and preferably from the former presidents themselves. Did they ever make foreign aid conditional? What were the conditions? Why? And so forth.

Another Panel

It was a good idea to empanel academic experts to provide guidance on the meaning of “high Crimes and Misdemeanors.” It should be done again, and this time correctly.

The next panel should include presidential historians, parliamentary historians, and experts on fiduciary law. It shouldn’t consist primarily of law professors, who are notorious for engaging more in advocacy than in true scholarship.

Every panelist should have published research on impeachment, fiduciary law, or related areas. No panelist should be enmeshed in pro-Trump or anti-Trump political activity. They should be limited to discussing constitutional impeachment standards without expostulating on evidentiary testimony. Weighing the evidence is the job of the committee members, not of academics with little judicial or “real life” experience.

Once the scholarly panel has testified, the committee should explore whether the president’s Ukrainian actions clearly violated the national interest, and it should gather testimony on the conduct of former administrations in comparable situations.

And only if all those investigations support a “self-dealing” conclusion should the committee recommend articles of impeachment.

Rob Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, a constitutional historian, and a former constitutional law professor. He is the author of “The Original Constitution: What It Actually Said and Meant“ (3rd ed. 2015).
Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015). He is a contributor to The Heritage Foundation’s “Heritage Guide to the Constitution.”