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Bill Blum

Could a President Hillary Clinton Be Impeached Over Her Emails?

Democratic presidential candidate Hillary Clinton campaigns outside a polling place during the first-in-the-nation presidential primary on Tuesday in Manchester, N.H. (Matt Rourke / AP)
Bill Blum
Contributor
Bill Blum is a former judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam ("Prejudicial Error," "The Last Appeal" and "The Face of Justice") and is a…
Bill Blum

If Hillary Clinton is elected president, could her slow-bleeding email scandal lead to her impeachment?

The question has been percolating in right-wing circles since last October, when Republican Congressman Mo Brooks of Alabama broached the subject in an interview with conservative talk-radio host Matt Murphy. If Clinton makes it to the White House, Brooks declared in no uncertain terms, “the day she’s sworn in is the day that she’s subject to impeachment because she has committed high crimes and misdemeanors” arising from her use of a private email server to discuss matters of national security during her tenure as secretary of state.

Ordinarily, I would accord Mo Brooks no more credibility than Moe Howard of Three Stooges fame.

Brooks is one of the most outspoken and, often, zany conservatives in the House. He opposes Obamacare, abortion and stem cell research and wants to defund Planned Parenthood and NPR. He has signed Grover Norquist’s Taxpayer Protection Pledge, believes Democrats have promoted a “war on whites” and has openly called for President Obama to be jailed over his executive orders on immigration.

In the world of mainstream punditry, Brooks is also regarded as something of a buffoon, not to be taken seriously.

Within days of the congressman’s impeachment comments, reporter Philip Bump, writing in The Washington Post’s The Fix blog, attempted both to lampoon Brooks and school him on the finer points of constitutional law. In language no less confident than that used by Brooks on the radio, Bump invoked the House’s 1873 impeachment investigation of Vice President Schuyler Colfax to advance the notion that federal officials cannot be impeached and removed from their current offices for crimes committed before they have assumed those positions.

Colfax was accused of taking kickbacks in cash and discounted stock from the Union Pacific Railroad’s Crédit Mobilier subsidiary in exchange for votes while serving in the House during the 1860s. And although it’s true, as Bump argues, that the House Judiciary Committee dropped its impeachment probe mainly because Colfax’s improprieties occurred before his ascendancy to the executive branch, his case is but one episode in the tangled and often contradictory history of impeachment in America. The Colfax investigation by no means stands as a binding precedent.

Even a broken clock is right twice a day. And when it comes to impeachment, Brooks may just have stumbled onto something worthy of concern. To see if he has, let’s start with some impeachment basics:

As explained in a 2015 study, “Impeachment and Removal”, prepared by the nonpartisan Congressional Research Service (CRS), “The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal ‘civil officers’ upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors.”

The specific constitutional provisions involved are:

Article 1, Section 2, which invests the “sole Power of Impeachment” in the House;

Article II, Section 4, which sets forth the grounds of impeachment in the famous phrase, “Treason, Bribery, or other High Crimes and Misdemeanors”; and

Article I, Section 3, which stipulates, in part, that the Senate shall have the “sole Power to try all Impeachments” in proceedings presided over by the Chief Justice of the Supreme Court. The same provision instructs that those who are convicted by the Senate “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

As the CRS study stresses, it’s essential to keep in mind that “although the term ‘impeachment’ is commonly used to refer to the removal of a government official from office,” it actually refers to the accusatory process carried out by the two houses of Congress.

To quote the study further: “First, a simple majority of the House impeaches—or formally approves allegations of wrongdoing amounting to an impeachable offense, known as articles of impeachment. The articles of impeachment are then forwarded to the Senate where the second proceeding takes place: an impeachment trial. If the Senate, by vote of a two-thirds majority, convicts the official of the alleged offenses, the result is removal from office. …”

Although scores of federal officials have been the subject of impeachment deliberations since the nation’s founding, the House has referred only 19 individuals to the Senate for impeachment trials—15 federal judges (including Supreme Court Justice Samuel Chase in 1805), one senator, one Cabinet member and two presidents, including, of course, Clinton’s husband, Bill. The Senate has conducted 16 full impeachment trials, convicting eight lower-court judges. All the rest, Chase and Bill Clinton among them, were acquitted.

Because of the plenary powers given to Congress, the impeachment process is largely insulated from judicial review. As a result, invoking the example of Colfax in rebuttal to Brooks is of little avail. Past impeachment investigations aren’t binding on subsequent sessions of Congress in the way that past judicial rulings and precedents are binding on judges. In the words of Gerald Ford, who as House minority leader spearheaded an unsuccessful campaign to remove Supreme Court Justice William O. Douglas in 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Nor is it true, historically, that impeachment proceedings have been limited to offenses committed after accused officials have been elected or appointed to their current offices. To cite two examples discussed in the CRS report:

● In 1912, Judge Robert Archbald was impeached and convicted while serving on the 3rd Circuit Court of Appeals and the short-lived United States Commerce Court (which was disbanded in 1913) in part because he had accepted gifts from litigants and lawyers and committed other corrupt practices while working previously as a federal district court judge.

● More recently and even more on point, federal Judge G. Thomas Porteous was convicted in 2010 by a Senate vote of 96-0 on four articles of impeachment, two of which concerned financial corruption that began while he was a state court judge in Louisiana in the 1980s, and a third that alleged he had made false statements to the Senate and the FBI in connection with his appointment to the federal bench. The articles passed in his case were signed and certified by Nancy Pelosi, then the House speaker and current a Hillary Clinton backer.

It should also be remembered that the investigation that ultimately led to Bill Clinton’s impeachment began with an examination of the Whitewater real estate scandal that took place in Arkansas in the 1970s and ’80s. From there, the probe expanded to the former president’s sexual encounter with Paula Jones while he was governor of Arkansas, then to the deposition he gave while president in Jones’ civil lawsuit against him—in which he lied about his relations with White House intern Monica Lewinsky.

Thus, when contemplating a potential Hillary Clinton impeachment, the vital question may not be whether some tea party zealot in the House, such as Brooks, will call for a formal inquiry over her pre-election conduct—that much seems fairly assured. Indeed, the email controversy has already been the subject of hearings before the House Select Committee on Benghazi and the Senate Judiciary and Homeland Security committees. (There is even a Facebook page dedicated to her future impeachment.)

The real question is whether Brooks would succeed in persuading a House majority that her use of the private server rose to the level of a high crime or misdemeanor. In this respect, the CRS study doesn’t cite Ford’s quip about Justice Douglas, but it nonetheless supports Ford’s view that the phrase historically has been given a broad and robust reading, suggesting that it pertains to conduct that results in serious violations of the “public trust.” Such conduct usually is criminal in nature, but need not be, at least in the strict sense.

This probably means that the end of Clinton’s email travails is nowhere in sight. Her critics have alleged that, at a minimum, her use of a private email server to conduct official business while she had ready access to a government email account was reckless and foolish. Some critics have also alleged that she should be indicted immediately for violating a variety of federal laws, including statutes dealing with the mishandling of classified information.

To compound Clinton’s problems, the FBI has opened an investigation of her emails. According to Fox News, citing anonymous “intelligence sources,” the bureau’s probe has widened to “look at whether the possible ‘intersection’ of Clinton Foundation work and State Department business may have violated public corruption laws.”

If Clinton avoids indictment before the presidential election, demands no doubt will arise that she be charged afterward. Whether a sitting president can be indicted remains one of the big, unresolved questions of constitutional law. Both Bill Clinton and Richard Nixon came perilously close. There is no question, however, that a president can be impeached.

To date, Hillary Clinton’s defense has been threefold: that the attacks against her are political rather than legal; that previous secretaries of state such as Colin Powell and aides to Condoleezza Rice also used private email to conduct official business; and that none of her emails contained material that was classified at the time they were drafted, sent and received.

No one can fault Clinton for fighting back. And when and if the dust finally settles, she may be proved right on all three counts, especially the first. Impeachment isn’t just a creature of the law. It’s also a means for exacting political retribution and revenge.

But the political nature of impeachment is nothing new, and that fact offers little consolation, much less absolution, for Clinton. This is especially true when her diehard enemies, such as Brooks, are convinced that the law—in addition to morality and God—is on their side.

And so we can expect the email crisis and the talk of impeachment in the event of her inauguration to persist, sapping the nation’s energy and attention in yet another Clinton family drama, writ large.

If only there was some alternative to Clinton’s nomination as the Democratic candidate for president, we might avert the drama and potential constitutional crisis it portends. Oh wait, there is … but that’s a subject for a future column.

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