What did the president know about the Mar-a-Lago advertisement that appeared for a time on official government websites? And when did he know it? These questions might sound trivial. They aren’t. The webpage about President Donald Trump’s private club, which had all the features of a marketer-drafted puff piece, is a prime example of corruption, namely the knowing use of government means to enhance the private wealth of the president. And corruption is the classic example of a high crime or misdemeanor under the impeachment clause of the Constitution.
To be very clear, it doesn’t matter whether advertising Trump’s for-profit, members-only club using government property is a “crime” under federal law. “High crimes and misdemeanors” aren’t the same as statutory violations. That phrase refers to the misuse of government authority to contradict and undermine democracy and the rule of law.
In this constitutional sense, using the perks and tools of government to enrich the president personally is an impeachable offense, an offense that would grow out of a pattern of such acts of corruption.
Because the subject of impeachment is so serious, let me begin with an important caveat: One post that went unnoticed for several weeks on a State Department website before being pulled down Monday would not on its own be enough to count as a high crime for purposes of impeaching a president. Without a lot more evidence, the post isn’t enough.
The Mar-a-Lago post, however, needs to be seriously investigated as part of a broader analysis of whether and how the executive office is being used to enhance the president’s existing businesses and brands and thus enrich the president now and in the future. The impeachable act of corruption is the use of the tools of government for private gain.
So now let’s turn to the webpage. We learned two important legal lessons back in February after White House adviser Kellyanne Conway promoted Ivanka Trump’s merchandise on television.
One is that it’s a violation of federal regulation (5 CFR 2635.702 if you’re keeping track at home) for a government employee to “use his public office … for the endorsement of any product, service, or enterprise.”
The second thing we learned is that nothing much necessarily happens if a government employee violates that regulation. Conway got less than a slap on the wrist — because it was up to the White House to decide on discipline, if any.
The Mar-a-Lago post is much worse. Conway just used the airwaves and her job title to make an endorsement. The webpage uses the resources of the government itself — the State Department’s Share America website and the imprimatur of the U.S. embassies’ diplomatic functions — to promote the club.
Lest we forget, memberships prices doubled after Trump was elected. And he has hosted several foreign leaders there. These acts were both troubling. But neither was as explicitly an instance of the use of government resources for private presidential gain.
Imagine that after an investigation, it turned out that the president or someone close to him ordered the post or knew about it and allowed it go forward.
The president could credibly claim that the regulation against endorsements doesn’t apply to him, because he’s not an employee under its terms. Trump has made clear that he believes that Congress’s conflict of interest laws don’t apply to him either.
Constitutionally, that wouldn’t be the end of the matter — far from it. Congress has the authority and the responsibility to consider presidential conflict of interest when crafting articles of impeachment and deciding to bring them against a sitting president.
Some misunderstanding of “high crimes and misdemeanors” has snuck into the popular imagination, mostly I think since Bill Clinton was impeached in 1998.
The two articles of impeachment approved by the House against Clinton consisted of perjury and obstruction of justice in connection with the Paula Jones case and his relationship with Monica Lewinsky. Both of those are prosecutable offenses under criminal law.
But Congress filed those articles of impeachment because Clinton hadn’t done anything else that would’ve counted as a distinct misuse of his government authority. Lying about his affair under oath wasn’t a distortion of the office of president. It was personal wrongdoing, not professional.
The articles of impeachment proposed against Richard Nixon only made it through the House Judiciary Committee, and were never adopted by the full House of Representatives. They are more complicated — and more in keeping with constitutional tradition.
The first article does allege obstruction of justice. But all three of the articles charge Nixon with acting against his oath to take care that the laws be faithfully executed. Several of the specific allegations are for conduct that might not have been ordinarily criminal, such as maintaining a secret investigative unit in the White House or failing to stop his subordinates from thwarting the Watergate investigation.
These are classic “high crimes” — “high” in the sense that they relate directly to the president’s misuse of his own high office.
That’s the historical meaning of “high crimes and misdemeanors,” a phrase that the framers of the Constitution took from English constitutional tradition and the impeachments undertaken by Parliament against royal officials.
Corruption is the archetypal instance of a high crime. And it can be defined simply as the use of government office for the president’s private gain.
Small violations can add up to an impeachable offense. Nothing weakens the rule of law more effectively than gradual erosion. That’s why it’s important not to treat the Mar-a-Lago post as minimal or insignificant.
The rule of law takes centuries to build. It can be destroyed much quicker. And when it comes to a president, the criminal laws are not the constitutional answer. Impeachment is.
- I’m confident that in the case of Mar-a-Lago the post endorsed the private club. But it’s still not clear that the post violated this regulation, because it’s not clear who, exactly, was using his or her public office to do the endorsing. Maybe the author of the post broke the regulation. Maybe the embassy staff who posted it did so. But I don’t expect to see any serious enforcement of the regulation.
- Which is unlikely to happen with Republicans in control of both the House and Senate.
~Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University.