A panel of Duke professors on Monday discussed the political, legal and national security issues raised by the U.S. House impeachment inquiry of President Trump
Moderator B.J. Rudell, associate director of POLIS, kicked off the discussion at the Sanford School by asking what are “high crimes and misdemeanors” according to the impeachment clause of the U.S. Constitution.
“In short, it’s what Congress says it is,” said Duke Law Professor Lisa Kern Griffin, who researches constitutional criminal procedure.
The notion of high crimes comes from common law, and usually refers not “to an actual crime, but an abuse of power or an abuse of trust,” she said. What the founding fathers meant by misdemeanors is “more mysterious,” but was meant to broaden the range of covered actions, she said.
Sanford Professor Bruce Jentleson, who served in the U.S. Department of State during the Obama administration, addressed the many foreign policy and national security issues brought to light by the inquiry. Ukraine was invaded by Russia in 2014, which the international community condemned. U.S. policy to assist Ukraine had bipartisan support, he said.
While many of Trump’s actions might be impeachable, “It was the blatancy of the phone call” and the phrase “do me a favor though,” that made this different from the more complicated actions laid out in the Mueller report, Jentleson said.
Griffin explained some of the history of the Department of Justice rule that a sitting president cannot be indicted while in office.
“It was in response to the crimes of a vice president,” she said. That was Vice President Agnew, who was persuaded to resign after the creation of a detailed list of his criminality. There was a 1973 memo about the issue of who could be indicted and, after the Clinton impeachment, the Office of Legal Counsel at the Department of Justice issued a memo in 2000 saying that the president cannot be indicted.
“There were five other inquires that didn’t reach that conclusion,” Griffin said. The issue has never “gone to the Supreme Court, she noted.
President Trump recently lost a ruling and was ordered to turn over the tax records of his business. Griffin said his lawyers are making the bold claim that no one can investigate the President for any reason, that there is “no process of any kind to hold the President accountable,” a position that is not supported by law.
Trump’s lawyers are also trying to claim blanket immunity for the President’s business, his family and his staff.
“The system is not equipped to deal with bad faith, with a cohort that does not share allegiance to our institutions,” she said.
Sanford faculty member Asher Hildebrand addressed some of the political impacts of the impeachment process so far. He is the former chief of staff for Congressman David Price.
“The views of the American people have changed over the last two months,” he said, pointing to the large shift in the polls in favor of impeachment. Individual members of Congress are responsive to the public, and have to balance that with their own patriotism, values and party loyalty, he said.
Further evidence might persuade some Senate Republicans to vote for removal, but Hildebrand thought public opinion would be more persuasive. The current “public support for impeachment is higher than at any point than with Clinton,” Hildebrand said. If support climbs higher, it will be harder for Republicans to hold their current position.
Jentleson expressed concern about the damage the Trump administration has done to the State Department, including a deep demoralization heightened by the treatment of Ambassador to the Ukraine Marie Yovanovich. She was abruptly removed from her post by the administration after failing to cooperate with Rudy Guiliani, the president’s personal lawyer.
Trump has also damaged U.S. standing in the world, he said. Other countries see how easy it is to manipulate Trump and how impulsive he can be even with major decisions such as the military pull-out from Syria.
If Trump is impeached and removed, Jentleson said he would not be comforted that the process worked. “I worry a lot about violence,” he said.
Griffin said the nation is not in a constitutional crisis, but if President Trump refuses to comply with a Supreme Court ruling over evidence, we may be. It was a Supreme Court ruling that compelled Nixon to turn over the Watergate tapes. “If the White House says no, there is no Supreme Court police force,” she said.
The panel discussion was sponsored by POLIS: Duke’s Center for Political Leadership, Innovation and Service, and cosponsored by Duke's Sanford School of Public Policy, Women in Politics, Duke Political Union, and Bench & Bar Pre-Law Society.