Notice, Vagueness, and Trump’s Anti-Impeachment Argument

On Monday, the President’s lawyers filed a memorandum with the Senate that lays out his response to the House’s impeachment case. One argument in the memo stood out to me—the idea that President Trump cannot be impeached because he did not violate a specific criminal law.  The President’s lawyers are making this argument in response to the first article of impeachment—the one that alleges an abuse of power. 

This argument has gotten a lot of attention because Alan Dershowitz, who recently joined the President’s legal team, has argued that, as a historical matter, impeachment and removal are only constitutionally permitted if Congress proves the President committed a crime.  There is ample evidence that contradicts Dershowitz’s historical argument—evidence that constitutional experts across the country have been quick to identify. 

Importantly, the President’s lawyers have framed the argument in terms that are not purely historical.  They have also argued that, as a substantive legal matter, a President may only be impeached and removed for conduct that is clearly forbidden by law.  That substantive argument is not receiving the same level of attention as Dershowitz’s historical argument. (Though I do recommend this great essay from Ilya Somin over at the Volokh Conspiracy.)  Because the substantive argument is intuitively appealing, I think that it is important to highlight what is wrong with it.

The President’s substantive argument, in a nutshell, is that he cannot be impeached for abuse of power because there is no clear, legal definition of “abuse of power.”  In the absence of a clear definition, the argument goes, it would be unfair to impeach the President because, at the time he acted, President Trump did not know that conduct was forbidden.  It would also give Congress too much power because Congress could use the nebulous charge of “abuse of power” to impeach and remove future presidents based on legitimate policy disagreements.  If these sound familiar to you, it may be because they are similar to an argument that Josh Blackman made several weeks ago.

These may also seem like familiar arguments because they are based on due process principles.  In particular, they rely on arguments that justify the rule of lenity and the void-for-vagueness doctrine—due process limitations that many of us learned about in our first year criminal law classes.  Personally, I love teaching these topics to my students, and I have also used those principles in my scholarship to repeatedly argue for more narrow and more specific criminal laws.  But here is the rub:  I make these arguments because this is not the current law in this country.  We routinely punish people without making clear beforehand what people can and cannot do.  We have done so since this country was founded nearly 250 years ago.  We do this despite the fact that it isn’t fair to the people we punish.  And we do it despite the fact that it gives police and prosecutors enormous amounts of power.

For example, we routinely criminalize certain conduct only if it is “unreasonable.”  That term appears in literally hundreds of criminal laws in all fifty states.  What distinguishes reasonable conduct from unreasonable conduct?  The answer to that question probably changes from person to person.  And so criminal laws that forbid “unreasonable” conduct require people to guess whether prosecutors or jurors will think that their actions were reasonable or unreasonable.  Yet, the Supreme Court confirmed as recently as 2015 that those laws are constitutional.  We’ve used that same malleable standard for literally centuries.  As Supreme Court Justice Oliver Wendell Holmes once said: “[T]he  law  is  full  of  instances  where  a  man’s  fate  depends  on  his estimating  rightly,  that  is,  as  the  jury  subsequently  estimates  it,  some matter of degree.  If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.”

To be sure, the Supreme Court has, on a small number of occasions, said that a criminal law can be so vague that it violates the Constitution’s guarantee of due process.  But those decisions have either involved laws that appeared to impinge on other important constitutional rights, like the right to free speech, or they have come in the wake of repeated unsuccessful attempts by courts to make sense of confusing or conflicting statutory language. 

But “abuse of power” doesn’t fit into either of those categories.  Instead, it looks quite similar to other phrases that the Court has allowed stand, relying on courts to give meaning to them over time.  The Sherman Act’s prohibition on any “contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce” provides an example.  The cases decided since the passage of the statute have confirmed that Congress essentially delegated to the federal courts the task of creating a criminal common law of antitrust.  When it comes to “abuse of power,” it isn’t as though there is no guidance about what the phrase means.  As Harvard Law Professor Niko Bowie recently pointed out, abuse of power was considered a common law crime in this country, which means that there are cases and treatises that give real content to the concept.  It is precisely this sort of case law that has insulated similar legal phrases against vagueness attacks in the past.

President Trump’s own administration houses some of the strongest advocates for imposing punishment for violations of vague laws. Lawyers in Trump’s Justice Department have argued that statutes with vague language should be enforced against individual Americans.  This doesn’t really distinguish President Trump from the presidents that proceeded him—the Department of Justice has historically defended federal laws against vagueness challenges.  But it does seem ironic that Trump’s lawyers would claim constitutional protections in an impeachment trial while his administration works to deny those same protections to people in criminal trials. 

To the extent that people want to see more robust protections against imprecise criminal laws—and I assure you that I do—it makes no sense that we would first adopt those protections in a legal proceeding involving the most powerful person in the country where the only consequence he’d suffer is removal from office.  In fact, it would stand due process on its head to say that the President would be entitled to more protections in an impeachment trial than we are willing to give to criminal defendants who are facing the possibility of lengthy sentences of imprisonment.

It is also worth noting that the President’s substantive argument—even if it is appealing in the abstract—doesn’t make any sense in this particular factual situation.  The vast majority of Americans disapprove of the President’s decision to withhold military funding from Ukraine in order to get a public announcement about an investigation into a political rival.  So even if people might disagree about how, precisely, to define a presidential abuse of power, there is a lot of agreement that these particular actions qualify.  It is also incredibly difficult to argue that President Trump didn’t know that it was an illegal abuse of power to withhold military funding from Ukraine when he made the decision to do so.  As President Trump was refusing to release the money that Congress had appropriated, career officials were sending the message to him and his advisors that this course of action was not legally permissible. 

Finally, it is hard to ignore how President’s own actions.  He has previously said that Article II gives him unlimited power.  And since his actions became public, President Trump has insisted that he did nothing wrong and that his phone call with the Ukrainian president was “perfect.”  This behavior is hardly what we would expect from someone who is merely uncertain about the limits of his power.  To the contrary, President Trump appears to believe that his presidential powers include the ability to put this sort of pressure on a foreign nation.  And he likely will see an acquittal in the Senate of a confirmation of such sweeping power.