A conversation with constitutional scholar Cass Sunstein about the history of impeachment, how it’s being misunderstood, and yes, the Mueller report
President Donald Trump speaks with reporters on the South Lawn of the White House before departing in Washington.To impeach or not to impeach. That has been the question vexing congressional Democrats since they took control of the House of Representatives last November.
CS: The first thing is that people need to have some reverence when they speak about impeachment. I think that’s really important, and that’s missing — to see impeachment against the background of brave people fighting for independence from a king, and then having a system of self-government organized around the Constitution, with the impeachment provision being essential to their understanding that they were self-governing.
It’s tempting to think it’s deliberately vague, but if you really study the background of it, it’s no more vague than terms like “refrigerator” or “microwave oven” — they aren’t vague terms, but for someone who’d never heard those words or seen those things, it may seem that way. There are some gray areas … but there’s a lot of things that are clearly in and a lot of things that are clearly out. The number of gray areas is relatively small, and I think for the these areas it’d be too simple to say it’s a political judgment. It would be a legal judgment that the House and Senate would have to make given the category that is clear: egregious abuses of authority.
So let’s suppose that Bernie Sanders becomes president and at some future time, there is justified clarity that he’s committed an impeachable offense. Then impeachment is obligatory. The Republicans would be required, whatever their political self-interest, to initiate impeachment proceedings. And the Democrats would be required to vote for impeachment, even if they love President Sanders. Just hypothetically, but it’d be— accepting a bribe or committing treason.
I’d put it slightly differently. I’d say any report by an independent or special prosecutor wouldn’t justify impeachment because the House of Representatives has its own responsibility, which is to look at the facts and the law. So if there’s a report by Kenneth Starr or Rush Limbaugh or some left-wing person or Robert Mueller, for whom I have a great deal of respect, that doesn’t eliminate the House of Representatives’ duty to do its own independent analysis.
This is a great question, and the constitutional debates don’t speak to it because Congress’ investigatory authority wasn’t at the convention or the ratification debate. The Supreme Court hasn’t spoken to this, either. There’s some lower court suggestion that if it’s an impeachment proceeding, Congress’ authority to obtain material is increased.
I’ll say one thing about the law. If the president is impeached, the Constitution is very clear that criminal proceedings against the president who’s committed a crime are completely available. So there’s no way that impeachment would foreclose a criminal proceeding against the president. So there’s no preclusion. The constitutional text actually is unambiguous.
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