Apparently the law professors’ testimony in the impeachment hearings last week had a fair bit of originalist-oriented discussion. Michael Dorf and Saul Cornell have different views on whether that’s appropriate for (presumably) non-originalist scholars. In the New Republic, Professor Cornell argues: Don’t Embrace Originalism to Defend Trump’s Impeachment. Professor Dorf sees it differently:
Law professors and lawyers who are not originalists nonetheless think that original meaning is very important in constitutional interpretation; we just think it’s often indeterminate and sometimes needs to be supplemented by other so-called “modalities” of constitutional law (H/T to Prof Philip Bobbitt for “modalities”). So there’s nothing remotely hypocritical about a liberal law professor invoking a clear original meaning.
I think that greatly overstates the extent to which nonoriginalist law professors embrace originalism, although I accept the basic proposition that nonoriginlists often think original meaning is relevant (except when they don’t).
Over the weekend, the House Judiciary Committee staff released this analysis: Constitutional Grounds for Presidential Impeachment. It is strongly originalist, relying heavily on the Convention debates and on conclusions regarding the Framers’ intent and understanding. There are by my count, just in the first two pages, eight references to “the Framers,” three quotes from George Mason, plus quotes from Hamilton and Story; the report continues in this style for 30 pages. It’s well done as an originalist analysis (there’s also some discussion of historical practice, but mostly for the purpose of illustrating the application of the original meaning.
I also think the analysis is mostly right. In particular, it emphasizes the gravity of offenses necessary to be impeachable. As the report concludes (p. 30): “Like ‘Treason’ and ‘Bribery,’ and consistent with the offences historically considered by Parliament to warrant impeachment, ‘high Crimes and Misdemeanors’ are great and dangerous offenses that injure the constitutional system.” (Note: the “great and dangerous offenses” language comes from a comment by Mason at the Convention.)
But as Mark Tapscott points out at Instapundit, the report’s key conclusion for the present impeachment is this one (p. 6):
The question is not whether the President’s conduct could have resulted from permissible motives. It is whether the President’s real reasons, the ones in his mind at the time, were legitimate. Where the House discovers persuasive evidence of corrupt wrongdoing, it is entitled to rely upon that evidence to impeach.
Unlike most of the report, I do not see originalist foundations for this claim, which is basically that an otherwise appropriate and legitimate presidential action might become impeachable — that is, become a “great and dangerous offense” — because of something the House thinks it can discern in the President’s mind.
If that’s right, I think it can be right only if the President took an action believing it to be harmful (indeed, gravely harmful) to the country yet good for him personally. That situation does seem like an abuse of discretion, or in constitutional terms a violation of the duty of faithful execution.
But I would think it typically hard to reach such a conclusion. A President is likely to believe at most that what he does is good for the country (or at least is not gravely harmful to it) and that it benefits him personally. Or at least it will be quite hard to prove otherwise.
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