Does Congress have the power to investigate the allegations of sexual misconduct against President Trump, as Senator Kirsten Gillibrand recently demanded? Could Congress impeach the President on those grounds? Answering these difficult questions requires an appreciation of the limits of congressional authority to hold the President accountable for past transgressions.
A #MeToo Reckoning for Trump?
Donald Trump’s unexpected victory over Hillary Clinton in the 2016 presidential election was probably a catalyst to the subsequent #MeToo movement, which has rapidly shifted the national conversation regarding sexual assault and harassment. Women had been inspired by the Clinton candidacy and mobilized by her sudden defeat. It was only a matter of time until Trump himself would come under new scrutiny in the context of the #MeToo movement. His own history of dubious behavior toward women was a matter of public record, and that history was amplified during the campaign by the release of a now infamous Access Hollywood audio recording of Trump in his days as a TV celebrity bragging about the ease with which he could grope women without repercussions. Trump himself would dismiss the tape as nothing more than “locker room talk,” perhaps a matter of bad taste but only “words” not “action.” When women came forward with specific allegations of sexual misbehavior, Trump dismissed them as “fabricated stories of women who I don’t know and/or have never met,” yet another example of “FAKE NEWS!”
After Democratic Senator Al Franken announced that he would resign as a result of his own sexually charged transgressions and Republican hopeful Roy Moore lost his bid for the Senate, a number of female Democratic legislators aimed the spotlight at President Donald Trump. In December of 2017, members of the congressional Democratic Women’s Working Group (DWWG) sent a letter to the leadership of the House Committee on Oversight and Government Reform calling on the committee to “investigate the reports of sexual misconduct raised against President Trump. . . . ” At the same time, Democratic Senator Kirsten Gillibrand called on Trump to resign the presidency. If he failed to “immediately resign,” then Congress “should have appropriate investigations of his behavior and hold him accountable.” After the president dismissed the senator as a “[l]ightweight” and a “total flunky,” Gillibrand renewed her call for his resignation. “[I]f he’s unwilling to do that, which is what I assume, then Congress should hold him accountable. We are obligated to have hearings.”
The senator’s call for Congress to hold hearings and hold the president accountable raises interesting questions about the scope of congressional power. Gillibrand suggested that a congressional hearing would give the president the “due process” to which he has said those alleged to have engaged in sexual misconduct are entitled. The letter of the DWWG argued that the “American people deserve a full inquiry into the truth of these allegations,” and that the Oversight Committee “may at ‘any time’ investigate ‘any matter.’” Oversight Committee Chair Trey Gowdy rebuffed the DWWG, and minority leader Nancy Pelosi has discouraged suggestions for the Democrats to hold their own “mock hearings.”
What might be the purpose of a hearing, and what would it mean to hold the president “accountable”? Gillibrand and others have been coy about what it might mean to “take action” in this context, though plenty of activists on both the left and the right have drawn the natural inference that any such hearings would be laying the groundwork for impeachment.
The Limits of Congressional Hearings
One option is to think that the process is the punishment. The purpose of hearings would simply be to publicly shame the president for his actions by allowing his accusers to speak in such a visible forum. Of course, many of the accusers have already aired their grievances using high-profile platforms in the national media. Even so, congressional hearings would no doubt be a spectacle in their own right, and Congress has at times found substantial political value in holding spectacular hearings that can command public attention.
Holding hearings for the sake of holding hearings is problematic in this context, however. At midcentury, the U.S. Supreme Court had an opportunity to weigh in on the scope of the congressional power to hold hearings. The House Un-American Activities Committee and its Senate counterpart infamously used their power to hold public hearings in order to expose alleged Communists. Since many of those witnesses were called to testify involuntarily, the judiciary was eventually brought into the controversy to assess the validity of congressional contempt citations against those who refused to testify. Trump’s accusers could be expected to offer their testimony voluntarily, and so any hearings would be unlikely to produce serious litigation. Even though the courts are unlikely to enforce limits on congressional hearings focused on Trump’s past misbehavior, however, there are constitutional boundaries that responsible legislators should themselves respect.
The Court’s McCarthy-era opinions on the scope of legislative investigatory powers are useful in this context. Chief Justice Earl Warren emphasized that the “power of Congress to conduct investigations is inherent in the legislative process” and is necessarily “broad,” but also observed that the power “is not unlimited.” Notably, “there is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress” nor can the inquiry be “an end in itself . . . solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated.” Justice John Marshall Harlan II subsequently elaborated that Congress had the constitutional authority to conduct hearings to facilitate its power “to legislate” or “to appropriate from the national purse,” but could not “inquire into matters that are exclusively the concern of the judiciary” or that “belong[] to the Executive.”
No doubt Congress’s modern legislative power encompasses a vast range of subjects, but the investigations proposed by the DWWG lack even the pretext of a jurisdictional hook to the legislative function. The letter incorrectly suggests that the Oversight Committee could launch investigations of “any matter,” and itself only points to “reports of sexual conduct” by a then-private individual, Donald Trump. House Rule X, clause (4)(c)(2), does indeed establish the Committee on Oversight and Government Reform and authorize it to conduct investigations without regard to the jurisdiction of other standing committees. But that can hardly be construed to empower the committee to act without regard to the jurisdiction of Congress itself. The official conduct of government officials is certainly of interest to congressional investigators, and the conduct of private individuals might well be of interest if it is potentially informative of policy questions that might give rise to legislation. It is hard to see how the misbehavior of an individual reality television star might enlighten the members of Congress on the administration or drafting of federal statutes.
Although the Republican chairman of the Oversight Committee might be expected to be less inclined to hold such hearings than a hypothetical Democratic chairman after the midterm elections, Gowdy’s response to the DWWG letter should be taken into consideration by any future committee chair. Gowdy points out that the “specific allegations set forth in your letter constitute crimes,” and primarily “allege violations of state laws.” No committee of Congress can “prosecute crimes,” and alleged “violations of specific criminal statutes” are better investigated by appropriate “law enforcement professionals” than by congressional committees. As the Court cautioned the two chambers of Congress well over a century ago, “neither of these bodies possesses the general power of making inquiry into the private affairs of the citizen.” “No judicial power is vested in the Congress or either branch of it,” and Congress should be cautious not to launch itself into inquiries properly entrusted to the judiciary.
Congress could at least throw a legislative fig leaf over hearings designed to air allegations of past acts of sexual harassment and abuse by Trump by situating that particular testimony within a larger set of hearings examining, for example, sexual harassment in the workplace and the potential need for additional federal legislation to address such problems. Such hearings might well be appropriate to Congress’ constitutional role, but bringing them within the proper ambit of congressional power would necessitate distancing them from the rhetoric of Gillibrand and the DWWG and the stated goal of holding Trump to account for his actions.
Of course, Donald Trump is no longer a mere celebrity. He now holds the office of President of the United States. That does not by itself give Congress any greater authority to investigate his behavior prior to his inauguration in 2017 or to hold Trump “accountable” for such behavior.
If hearings into Trump’s alleged private misconduct are outside the proper scope of Congress’s constitutional authority to legislate and appropriate, they might be appropriate to a narrow exception in which Congress may exercise a kind of judicial power. Congress has full authority to conduct hearings and take testimony “where the question of . . . impeachment is before either body acting in its appropriate sphere on that subject.” Gowdy perhaps hinted as much in his reply to the DWWG letter, pointing out that the Judiciary Committee “has jurisdiction over allegations relating to fitness for office and non-criminal matters.” If Gillibrand believes Congress “should have appropriate investigations of his behavior and hold him accountable,” she should be frank in saying that she is calling on the House to launch an impeachment inquiry based on allegations of past sexual misconduct (though it is somewhat awkward for a member of the Senate who will take an oath to “do impartial justice” in any impeachment trial to be publicly calling for the President’s prosecution by the House; those who will assume the role of jury should hesitate before embracing the role of prosecutor).
Can a President Be Impeached for Pre-Election Conduct?
An impeachment inquiry would clearly be within the authority of the House and would justify the holding of hearings and the calling of witnesses to investigate individual misconduct, but that raises the further question of whether Trump’s private behavior prior to his election to government office is properly subject to an impeachment inquiry. A positive answer to that question is by no means obvious.
The scope of the congressional impeachment cannot be easily cabined. Then-House minority leader Gerald Ford notoriously suggested that “[a]n impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” The House has an exclusive power to impeach and the Senate to convict, and the members of Congress are ultimately accountable only to their own constituents for how they exercise those powers. The difficulty of assembling the Senate supermajority needed to convict on impeachment charges is perhaps the most significant constitutional constraint on the impeachment power.
We should probably not want to construe the impeachment power too narrowly. The power to impeach is entrusted in the people’s House in order to serve as a constitutional “failsafe.” Judges provided with lifetime tenure and Presidents invested with extraordinary powers can do great mischief. The impeachment power is an essential component of the constitutional system of checks-and-balances so as to address abuses to the public welfare that cannot be remedied by lesser means. The constitutional standard of “high crimes and misdemeanors” attempts to balance between the need for independence and the need for accountability, but the particular political circumstances that might necessitate the impeachment and removal of a government official cannot be easily anticipated and the framers wisely left the standard of impeachable offenses somewhat flexible.
I have previously argued that “[t]he effort to transform the Constitution’s requirement of high crimes and misdemeanors into a finite list of impeachable offenses tends to misdirect the constitutional and policy inquiry away from what is most important: the justification for removing an officer of the federal government of the United States.” The important question for members of Congress, and members of the public, to contemplate is not whether given actions match up with some implicit list of high crimes and misdemeanors but whether given actions are inconsistent with the duties of the office and cannot be remedied by means short of removal from office.
The impeachment power is ultimately a forward-looking instrument, not a backward-looking instrument. Its use is justified not in order to punish a miscreant for past bad acts, but in order to protect the nation against future bad acts. Officeholders should be impeached if their actions demonstrate that their continuation in office poses an unacceptable threat to the nation’s well-being, but they might also be subject to impeachment if their actions threaten to shift norms of public conduct in ways that are subversive of the political order. An impeachment can shore up public expectations about how officeholders should conduct themselves in their positions of public trust. Holding a current officeholder to account for bad behavior sends a positive message to future occupants of public office.
The actions of which Donald Trump stands accused do not fit squarely within our traditional understanding of impeachable offenses. In the wake of the impeachment of Bill Clinton, Cass Sunstein reasonably identified “the principal goal of the Impeachment Clause” as one of allowing “impeachment for a narrow category of egregious or large-scale abuses of authority that comes from the exercise of distinctly presidential powers.” Addressing bad conduct by private individuals before they have ever taken office clearly falls outside of that core purpose of the impeachment power.
If impeachment is warranted on the basis of actions an individual took prior to assuming office, it could only be warranted in rather exceptional circumstances. Some would argue that such actions can never constitute an impeachable offense, but that might be reading the impeachment power too narrowly. One historic purpose of the impeachment power has been to address “the inconsistency between the actions of an individual and the expectations of the office that individual holds.” It is on the basis of this justification that we might think that some private behavior by a public official might warrant an impeachment. The “overwhelming appearance of impropriety” might undercut the dignity of the office and public faith in how public business is conducted, even if there have been no actual abuses of authority. Thus, we might think that a judge who engaged in criminal tax evasion or a president who lied under oath before a federal grand jury had engaged in behavior that was incompatible with the dignity and stature of the office that they held. In the case of President Bill Clinton, the House framed his offenses as a “violation of his constitutional oath,” but in the cases of Judge Alcee Hastings and Judge Walter Nixon the House simply labeled their private criminal behavior as “an impeachable offense warranting removal from office.”
Things become much more difficult if we move beyond the private behavior of a government official and consider the private behavior of an individual before they became a government official. There is no possibility of framing such actions as being in violation of President Trump’s oath of office or responsibilities as president, because Trump had taken no oath and had no such responsibilities at the time of the alleged offense. In 1912, the House did impeach Judge Robert Archbald in part for actions that he had taken while holding a prior judicial office as “improper, unbecoming, and constitut[ing] misbehavior in his said office as judge.” It is notable, however, that even these charges stemmed from behavior that could be characterized as “gross misconduct in his office as judge.” Even so, the Senate was not willing to sustain those charges, and many senators specifically objected to the effort to impeach Archbald “for offenses committed before his appointment to his present office. . . . Such offenses might show his unfitness to hold office and properly prevent his appointment, but they can not be cause for his impeachment.”
We might think this consideration is particularly weighty when the allegations were public and known before an individual was elevated to his present office, as is the case for President Trump. Impeaching the president for actions that were known to the electorate at the time of the 2016 balloting reeks too much of “relitigating the election” and substituting the judgment of the members of Congress for the judgment of the voters on the question of Trump’s general fitness for high office. In explaining why she had long associated with Bill Clinton despite the Lewinsky scandal but now calls on Trump to resign for his sexual misconduct, Gillibrand has said that she “wasn’t focused on it in the way I am today. I didn’t have that lens.” Perhaps she would say that she and others likewise “didn’t have that lens” in the fall of 2016 when news of Trump’s transgressions was absorbed by the electorate but had acquired it after the #MeToo movement took off in the fall of 2017, but such Monday-morning quarterbacking would mark an unprecedented use of the impeachment power. Though there might be circumstances in which new information would force Congress to revisit issues that had made an appearance during a presidential campaign, the bar for doing so should be very high.
There are many credible reasons for considering an impeachment of Donald Trump for actions that he has taken since assuming office. Pursuing an impeachment inquiry for actions that he took before taking office seems both unnecessary and improper. If Congress cannot appropriately use its impeachment power as the means “to hold him accountable” for his past sexual transgressions, however, and if investigating the alleged misconduct amounts to usurping criminal prosecutions that belong in a courtroom—then it is doubtful that Congress could appropriately hold hearings to pursue that matter at all.