Impeachment Trial: Former Law Clerk for Clarence Thomas Destroys Schiff’s Abuse of Power Charge

The President’s legal team did a great job in shredding the House impeachment managers’ “case” for convicting the President and removing him from office. I particularly like Professor Dershowitz’s presentation on Monday night in which he provided constitutional, historical, and precedence-based arguments that explained why nothing presented by the House managers rises to an “impeachable offense.

In particular, I appreciated Patrick Philbin’s elaboration on the fact that the House managers’ “abuse of power article is akin to a bill of attainder and an ex post facto law that is expressly unconstitutional. Philbin is Deputy Counsel to the President and Deputy Assistant to the President in the Office of White House Counsel and previously clerked for my favorite US Supreme Court Justice, Clarence Thomas. Here are his remarks from Tuesday afternoon – an excellent lesson on constitutional law and separation of powers, as well as why the Democrats’ abuse of power article is bogus.

Philbin: I’d like to start today by making a couple of observations related to the abuse of power charge in the first article of impeachment. I want to add a couple of very specific points (to Professor Dershowitz’s presentation Monday night) in support of the exposition of the Constitution and the impeachment clause that he set out.

It begins from a focus on the point in the debate about the impeachment clause at the Constitutional Convention where maladministration was offered by George Mason as grounds for impeachment, and James Madison responded that that was a bad idea. And he said, “So vague a term will be the equivalent to the tenure at the pleasure of the Senate.” And that evinced a deep-seated concern that Madison had – and it is part of the whole design of our Constitution – for ways that can lead to exercises of arbitrary power. The Constitution was designed to put limits and checks on all forms of government power. Obviously, one of the great mechanisms for that is the separation of powers – the structural separation of powers in our Constitution.

But it also comes from defining and limiting powers and responsibilities, and the concern that vague terms, vague standards are themselves an opportunity for the expansion of power and the exercise of arbitrary power. And we see that throughout the Constitution and in the impeachment clause as well. And this is why, as Gouverneur Morris argued in discussing the impeachment clause, that only few offenses ought to be impeachable, and the cases ought to be enumerated and defined.

And that’s why we see in the debate about the Constitution that many terms had been included in earlier drafts when it was narrowed down to treason and bribery – and there was a suggestion to include maladministration which had been a ground for impeachment in English practice. The Framers rejected it because it was too vague. It was too expansive; it would allow for arbitrary exercises of power.

And we see throughout the Constitution in terms that relate and fit in with the impeachment clause the same concern. One is in the definition of treason. The Framers were very concerned that the English practice of having a vague concept of treason that was malleable and could be changed even after the facts to define new concepts of treason was dangerous. It was one of the things that they wanted to reject from the English system. So they defined in the Constitution very specifically what constituted treason and how it had to be proved. And then that term was incorporated into the impeachment clause.

Similarly, in the rejection of maladministration, which had been an impeachable offense in England, the Framers rejected that because it was vague. A vague standard – something that is too changeable and can be redefined … can be malleable after the fact – allows for the arbitrary exercise of power, and that would be dangerous to give that power to the legislature as a power to impeach the executive.

And similarly, and it relates again to the impeachment clause, one of the greatest dangers from having changeable standards that existed in the English system were bills of attainder. Under a bill of attainder, the Parliament could pass a specific law saying that a specific person had done something unlawful – they were being “attained” – even though it wasn’t unlawful before that. And the Framers rejected that entire concept. In Article I, Section 9, they eliminated bills of attainder and all ex post facto laws for criminal penalties at the federal level, and they also included a provision to prohibit states from using bills of attainder.

Now in the English system, there was a relationship to some extent between impeachment and bills of attainder because both were tools of the Parliament to get at officials in the government. You could impeach them for an established offense, or you could pass a bill of attainder. And it was because the definition of impeachment as being narrowed, that George Mason at the debates suggested and pointed out that (paraphrasing) in the English system there are bills of attainder that were a great and useful tool for the government, but we were eliminating that, and now we’re getting a narrow definition of impeachment, and we ought to expand it to include maladministration. And Madison said no, and the Framers agreed: we have to have enumerated and defined offenses – not a vague concept, not something that can be blurry and interpreted after the fact, and it could be used essentially to make policy differences, or other differences like that the subject of impeachment.

All the steps that the Framers took in the way that they approached the impeachment clause were in terms of narrowing, restricting, constricting, constraining, enumerating offenses, and not a vague and malleable approach as there had been in the English system. And I think the minority views of Republican members of the House Judiciary Committee, at the time of the Nixon impeachment inquiry summed this up and reflected this well because they explained: “The whole tenor of the Framers’ discussions … the whole purpose of their careful departures from English impeachment practice … was in the direction of limits and of standards. And an impeachment power exercised without extrinsic and objective standards would be tantamount to the use of bills of attainder and ex post facto laws which are expressly forbidden by the Constitution and are contrary to the American spirit of justice.”

And what we see in the House managers’ charges – and their definition of abuse of power – is exactly antithetical to the Framers’ approach because their very premise for their abuse of power charge is that it is entirely based on subjective motive – not objective standards, not predefined offenses – but the President can do something that is perfectly lawful, perfectly within his authority – but it’s the real reason that is in the President’s mind is something that they ferret out and decide is wrong – that becomes impeachable. That’s not a standard at all. It ends of being infinitely malleable. And it’s something that I think … a telling factor that I think reflects how malleable it is and how dangerous it is … is in the House Judiciary Committee’s report.

Because after they defined their concept of abuse of power, and they say that it involves you’re exercising government power for personal interest and not the national interest, and it depends on your subjective motives, they realized that it’s infinitely malleable. There’s not really a clear standard there, and it’s violating a fundamental premise of the American system of justice that you have to have notice of what is wrong. You have to have notice of an offense, and that is something that Professor Dershowitz pointed out last night – there has to be a defined offense in advance. And the way they try to resolve this is to say, “well, in addition to our definition, high crimes and misdemeanors involve conduct that is recognizably wrong to a reasonable person.

And that’s their kind of add-on to deal with the fact that they have an unconstitutionally vague standard. They don’t have a standard that really defines a specific offense. They don’t have a standard that really defines in coherent terms that are going to be identifiable what the offenses are, and it’s gotta be recognizable wrong. And they say they are doing this to resolve a “tension,” they call it, within the Constitution because they point out – and this is quoting from their report – “The structure of the Constitution, including its prohibition on bills of attainder and the ex post facto clause, implies that impeachable offenses should not come as a surprise.” That’s exactly what Professor Dershowitz pointed out, and that everything about the terms of the Constitution – speaking of an offense, and a conviction … that crimes should be tried by a jury … they all talk about impeachment in those criminal offense terms.

But the tension here is not within the Constitution. It’s between the House managers’ definition, which lacks any coherent definition of an offense that would catch people by surprise in the Constitution … that’s the tension that they are trying to resolve … is between their malleable standard that actually states no clear offense, and the Constitution and the principles of justice embodied in the Constitution that requires some clear offense.

So I wanted to point that out in relation to the standards for impeachable offenses because it’s another piece of the constitutional puzzle that fit in with the exposition that Professor Dershowitz set out. And it also shows an inherent flaw in the House manager’s theory of abuse of power regardless of whether or not one accepts the view that an impeachable offense has to be a crime … a defined crime. There is still the flaw in their definition of abuse of power … that it is so malleable, based on purely subjective standards … that it does not provide any clearly recognizable notice of offense. It is so malleable that in effect it recreates the offense of maladministration that the Framers expressly rejected.

The second point that I want to make is that how we tell on the House managers’ standard what an illicit motive is … when there’s an illicit motive. How are we supposed to get the proof of what’s inside the President’s head because of course motive is inherently difficult to prove where you’re talking about … and they’ve conceded we’re talking about perfectly actions on their fact within the constitutional authority of the President … but they want to make it impeachable … it’s just the wrong idea inside the President’ head. And they explain in the House Judiciary Committee report that the way we’ll tell that the President had the wrong motive, is we’ll compare what he did to what staffers in the executive branch said he ought to do. So they say that the President “disregarded US foreign policy towards Ukraine.” And that he ignored “official policy that he had been briefed on.,” and that he “ignored, defied, and confounded every agency within the executive branch.”

That is not a constitutionally coherent statement. The President cannot defy agencies within the executive branch. Article II, Section 1 of the Constitution vests all of the executive power in a president of the United States. He alone is an entire branch of government. He sets policy for the executive branch. He is given vast power, and of course within limits set by laws passed by Congress, and within limits set by spending priorities, spending laws passed by Congress … he within those constraints sets the policies of the government, and in areas of foreign affairs, military affairs, national security – which is what we’re dealing with in this case – foreign affairs, head of state communications – he has vast powers. For over two centuries, the president has been regarded as the sole organ of the nation in foreign affairs. So the idea that we’re going to find out when the President had the “wrong” subjective motives, by comparing what he did to the recommendations of some “interagency consensus” among staffers is fundamentally anti-constitutional – it inverts the constitutional structure.

And it’s also fundamentally anti-democratic. Because our system is rather unique in the amount of power that it gives to the president. The executive here has much more power than in a parliamentary system. But part of the reason that the president can have that power is that he is directly democratically accountable to the people. There is an election every four years to ensure that the president stays democratically accountable to the people. But the staffers in these supposed interagency groups who had their meetings and made recommendations to the President are not accountable to the people. There is no democratic legitimacy or accountability to their decisions or recommendations. And that is why it is the President as head of the executive branch who has the authority to actually set policies and make determinations regardless of what the staffers may recommend. They are there to provide information and recommendations, not to set policy.

So the idea that we’re going to start impeaching presidents by deciding that they have illicit motives … if we can show that they can disagree with some interagency consensus … that’s fundamentally contrary to the Constitution and fundamentally anti-democratic.

End of  Patrick Philbin’s remarks on abuse of power. To summarize:

  • The Framers debated the precise language of the Constitution’s impeachment clause and purposely restricted the terms to narrowly defined terminology while rejecting the English legal precedents of “malleable impeachment definitions” and bills of attainder.
  • The Framers expressly rejected vague terms as grounds for impeachment, for example “maladministration,” because they were greatly concerned about the arbitrary exercise of power that would result from using malleable terms.
  • All the steps that the Framers took in the way that they approached the impeachment clause were in terms of “narrowing, restricting, constricting, constraining, and enumerating offenses” while purposely rejecting the more malleable English practices. There actions are the opposite of what the House managers did developing their two articles of impeachment.
  • The House managers abuse of power charge is entirely based on subjective motive – not objective standards – just as the Founders feared might happen. In House managers’ minds, the President can do something that is perfectly lawful, perfectly within his authority – but they claim to be able to determine what was “in the President’s mind,” have decided it was wrong, and determined that is impeachable.
  • The House managers don’t have an abuse of power standard that really defines a specific offense, and that violates a fundamental premise of the American system of justice that you have to have notice of what is wrong before an act is committed.
  • The first flaw in the House managers’ definition of abuse of power is that it is so malleable and based on purely subjective standards that it does not provide any clearly recognizable notice of offense. It is so malleable that in effect it essentially recreates the offense of maladministration that the Framers expressly rejected. That makes the charge unconstitutional.
  • The second flaw is their divination of what an illicit motive is by the President, which requires essentially reading his mind, and they would determine that by comparing what he did to what staffers in the executive branch said he ought to do.
  • The House managers claim that the President “ignored, defied, and confounded every agency within the executive branch.” Under the Constitution, the President cannot defy agencies within the executive branch. Article II, Section 1 of the Constitution vests all of the executive power in a president of the United States. He alone is an entire branch of government. He alone sets policy for the executive branch. Their argument is unconstitutional on its face. The President is empowered by the Constitution and democratically accountable to the people; the bureaucrats are not.

That there are Republican senators who sat through this presentation and are still contemplating voting for new witnesses and documents is beyond my comprehension. Patrick Philbin’s arguments are crystal clear and win the day.

The end.