A Primer on Impeachment

Faculty Discuss Constitutional History, Corruption, National Security
White House
November 13, 2019

As the U.S. House of Representatives moves forward with an impeachment inquiry against President Donald Trump, the Karsh Center for Law and Democracy at the University of Virginia School of Law recently hosted a three-part faculty discussion and Q&A series on impeachment.

Among the issues UVA Law faculty attempted to address included executive branch resistance to the inquiry, questions related to a whether the president made foreign aid to Ukraine contingent on an investigation of the son of a political rival (Democratic presidential candidate Joe Biden), and implications for national security.

Professors Saikrishna Prakash and Frederick Schauer on Oct. 21 discussed the impeachment clauses and powers delegated to Congress.

Prakash, whose scholarship focuses on separation of powers, particularly executive powers, said that the executive branch has a long history of defying congressional subpoenas and that alone doesn’t create a constitutional crisis.

“I think what is a constitutional crisis is just in the eye of the beholder,” Prakash said. “I mean that in the following sense: What you might have thought was a constitutional crisis 200 years ago, like a president starting a war, is no big deal anymore.”

Schauer, who has written widely on constitutional law and theory, addressed how evidence works during impeachment proceedings.

“My own view is that a procedure that is actually provided for in the Constitution is not a constitutional crisis,” Schauer said. “A constitutional crisis might exist under circumstances of extreme disobedience to highest court orders.”

Professors Michael Gilbert and Deborah Hellman on Oct. 31 discussed how agreed-upon meanings of terms like “corruption” and “bribery” will have an impact on how impeachment proceedings could play out. They are two of the inaugural scholars in UVA’s Corruption Lab on Ethics, Accountability, and the Rule of Law, also known as CLEAR, and also are serving as Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professors, which are affiliated with the Karsh Center.

Even if the president hasn’t committed a crime, Gilbert noted, that doesn’t mean he can’t be impeached and then convicted by Congress.

“‘Other high crimes and misdemeanors’ — does that mean it has to be a crime as defined in federal statutes? Or does that mean it just has to be a crime as how the House of Representatives and the Senate understand some kind of activity to be bad enough to be equivalent to be a crime?” he said. “The answer’s probably the latter.”

Hellman has written extensively on the relationship between money and legal rights, including bribery.

“What’s ‘corrupting’ of the institution of the president depends on what the good of the presidency is or what the internal values of our society or our democracy are,” she said.

Professors Ashley Deeks and John Harrison on Nov. 7 discussed impeachment and national security powers of the presidency.

Deeks is a member of the State Department’s Advisory Committee on International Law and formerly served as the assistant legal adviser for political-military affairs in the U.S. State Department's Office of the Legal Adviser.

She agreed with critics that the inquiry is creating new national security concerns.

“The U.S. government generally prides itself on being able to walk and chew gum at the same time,” Deeks said. “However, I think that impeachment is heavily distracting to a host of different agencies right now. Some of these agencies were already in some level of disarray already, in part because of significant personnel turnover.”

Harrison has served as counselor on international law in the Office of the Legal Adviser at the U.S. Department of State. He previously served in numerous capacities with the Department of Justice from 1983-93.

He said the president has vast powers over foreign affairs, but parsing public and private interest in executing policy can be difficult.

“Permissible purposes [of presidential conduct] are those for which the power is conferred having to do with the public interest,” Harrison said. “The impermissible purposes are personal reasons. What about the situation in which … the decision-maker has both motives?”

Professor Micah Schwartzman ’05, director of the Karsh Center, introduced the speakers for each of the three events.

The Karsh Center is a nonpartisan institute that promotes understanding and appreciation of the principles and practices necessary for a well-functioning, pluralistic democracy.

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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