Ukrainegate Is Impeachable. But So Is Putting Kids in Cages

This blog was originally published on Common Dreams. 

ACS is publishing a series of blogs in a symposium that examines different legal aspects of the impeachment inquiry of President Trump. See also:

• Ciara Torres-Spelliscy on the president’s campaign finance violations as a basis for impeachment.
• Austin Evers on why obstruction of congressional investigations could be grounds for impeachment
• Neil Kinkopf on the mechanics of the impeachment process
• Heidi Kitrosser on the president’s abuse of executive secret-keeping powers.
• Gabe Lezra on emoluments clause violations
• Barbara McQuade on why Attorney General Barr should recuse himself from the Ukraine affair.
• David Driesen on how executive privilege may not apply in this current scandal.

President Trump’s Ukraine scandal has resulted in growing support for impeachment—as it should. But as Congress begins to get serious about holding Trump accountable, it must not lose sight of the kids in cages. That’s because, contrary to some naysayers, racist abuse of office—just like corruptly pressuring a foreign power for the president’s own benefit—is also grounds for impeachment. As our recent report When is Racist Abuse of Office an Impeachable Offense? shows, the text, history, and theory of impeachment all point to this conclusion.

Separating the merely deplorable from the positively impeachable

There’s a common misconception that impeachable offenses need to be prosecutable crimes. But the constitutional phrase “high Crimes and Misdemeanors” has long included abuses of office that don’t necessarily violate a criminal statute. In fact, Congress’s very first case of impeachment and removal (in 1804) didn’t involve a criminal statute.

Rather, as Alexander Hamilton wrote in the Federalist Papers, impeachable offenses “relate chiefly to injuries done immediately to the society itself.” For Trump’s racist rhetoric and action, the injuries to society are clear enough. Besides the suffering of the victims of his bigoted policies, experts have quantified the “Trump Effect”—measurable increases in racial violence and hostility associated with Trump rhetoric. But an issue, until now, has been the lack of a principled constitutional framework for determining when these injuries to society cross the line into impeachable territory.

The best place to start is the Constitution’s requirement that the president “take Care that the Laws be faithfully executed.” Those laws include the Constitution’s Equal Protection Clause, which provides that the government cannot—and therefore the president must take care that it not—“deny to any person within its jurisdiction the equal protection of the laws.” Obviously, the president isn’t responsible for every single equal protection violation. But he must at least try to ensure that the Equal Protection Clause is followed. And if he actively undermines the Equal Protection Clause, whether by deed or word, that violates the Take Care Clause.

Three categories of impeachable racist abuse of office

At minimum, counselling members of the armed forces or federal or state law enforcement officers to commit illegal violence—such as by suggesting that soldiers execute prisoners of war, or that police officers hurt people taken into custody—crosses the line into high crimes and misdemeanors. (The late Charles Black Jr. gave a variation of this as a hypothetical in his classic text on impeachment, probably not imagining that President Trump would test the principle.) There is no sense in which advocating illegal government violence can be said to “take care” that the laws be faithfully executed.

More subtly, the Take Care Clause also prohibits the president from using his bully pulpit to encourage private citizens to discriminate or commit violence against disfavored groups. This isn’t about criminally prosecuting the president; the First Amendment imposes a stringent standard on “incitement” prosecutions, and most Trump speeches don’t quite cross that line. But that’s not the question. The issue is when Congress should hold him accountable for violating his duty to take care that the Equal Protection Clause be faithfully executed.

Constitutional law provides two useful principles to answer that question. First, the Supreme Court has long held that government action based on a desire to harm a “politically unpopular group,” such as undocumented immigrants, violates the Equal Protection Clause. Second, the government is responsible for harm caused by third parties when government misconduct “places a person in peril in deliberate indifference to their safety.” Presidential action or speech that undermines or violates these principles, such as by repeatedly trumpeting the language of violent white supremacists, doesn’t “take care” that these protections be faithfully executed. (There’s precedent in Congress’s tenth article of impeachment against President Andrew Johnson, which cited Johnson’s feverish, violence-inspiring rant blaming a white-led massacre on congressional efforts to extend the vote to black people.)

Finally, while as a general matter policy differences don’t give rise to impeachable offenses, the Constitution itself isn’t a policy preference. When a president implements a pattern of government actions that are motivated entirely by bigotry—such as putting kids in cages, and other immigration policies based on his insistence that Latino immigrants are “rapists” while Haiti and African countries are “s—hole countries”—this intentional discrimination so undermines the Equal Protection Clause that it becomes an impeachable Take Care Clause violation as well. (Secret tapes aren’t necessary: as the Supreme Court has emphasized, “discriminatory purpose may often be inferred from the totality of the relevant facts.”)

Why does this matter?

These racist abuses of office aren’t the only ground for impeaching President Trump. But as scholar Keith Whittington has explained, a key purpose of impeachment is “to articulate, establish, preserve and protect constitutional norms.” In 1790, George Washington reassured the worried Hebrew Congregation of Newport, Rhode Island that the United States government “gives to bigotry no sanction, to persecution no assistance.” No modern president has done so much to undermine that norm as Donald Trump. And if we don’t draw the line here, we miss the opportunity to reestablish that norm. Do we really want to send future presidents the message that, so long as they don’t pressure foreign governments to punish their political opponents, they can put children in internment camps?

An article of impeachment for racist abuse of office (alongside other well-established grounds) won’t completely repair the injuries that Trump has already caused to our society. But it would delegitimize his stream of abuse as the official voice of the United States—and perhaps reduce the flames before there’s a conflagration.

Immigration, Separation of Powers and Federalism