In 2010, as a member of the House Judiciary Committee, I led the effort to impeach a federal judge from New Orleans named Thomas Porteous Jr. He was accused of multiple acts of corruption, some of which preceded his appointment to the federal bench, and making false statements during his confirmation hearing. After a lengthy impeachment process in the House, the Senate convicted him on all four charges and removed him from office.
Impeachment and removal for federal officials is an extraordinarily rare event. Judge Porteous was only the eighth federal official impeached and convicted in our nation’s history. As we investigated and drafted his articles of impeachment, we faced the consequential decision of whether to charge Judge Porteous with conduct before he took office. We had to go back nearly a century to the 1912 trial and conviction of Judge Robert Archibald to find a precedent. After much consideration, we decided to charge him not only for actions while he was on the federal bench, but also for a corrupt scheme he entered into with a bail bond company while a state court judge, and for the false statements he made during his Senate confirmation process.
We determined that because Judge Porteous was accused of taking cash and gifts from lawyers whose cases he presided over in state court, there was little question that such actions were incompatible with his responsibility as a federal judge. How could someone in his courtroom be confident of a fair trial, knowing he had solicited and accepted bribes while a judge?
In voting overwhelmingly to convict Judge Porteous on every count, the Senate established the precedent that a federal official can be removed for conduct committed before assuming office.
Because of the Porteous case, it is clear that if President Trump participated in a conspiracy to defraud the United States during the campaign by colluding with the Russians, there is a historical basis for the Senate to remove him from office. It is even more clear that if he committed the offense of obstruction of justice while in office, that would provide a legal basis for removal.
Yet, one of the most important lessons I learned during the Porteous case was that the legal standard for what constitutes a high crime or misdemeanor is less important than the practical and political standard that must be met in any impeachment case. And while that political standard cannot be easily or uniformly defined, I think in the present context, it means the following: Was the president’s conduct so incompatible with the office he holds that Democratic and Republican members of Congress can make the case to their constituents that they were obligated to remove him?
If they cannot, if impeachment is seen by a substantial part of the country as merely an effort to nullify an election by other means, there will be no impeachment, no matter how high the crime or serious the misdemeanor.
This is a very high bar, and it should be. Impeachment is an extraordinary remedy, not to be entertained lightly, and in the case of a president, would mean putting the country through a deeply wrenching process. It is instead a remedy that must considered soberly, mindful of the fact that removing a president from office should be the recourse for only the most serious transgressions.
Should the facts warrant impeachment, that case will be made more difficult politically if part of the country feels that removing Mr. Trump was the result that some of their fellow Americans were wishing for all along.
During the course of our investigation in the House Intelligence Committee, we have found troubling evidence of both collusion and obstruction of justice. Special Counsel Robert Mueller has no doubt seen even more than we have, but his investigation is not complete, and our efforts continue as well. There is much more work to do before any of us can say whether the evidence rises to the level that we should consider a remedy beyond the one that voters will render at the ballot box.
Given the evidence that is already public, I can well understand why the president fears impeachment and seeks to use the false claim that Democrats are more interested in impeachment than governing to rally his base. Democrats should not take the bait. Let President Trump arouse their voters as he will, while Democrats continue to focus on the economy, family and a return to basic decency. And in the meantime, all Americans should reserve judgment until the investigations have run their course.
Adam B. Schiff, a Democrat from California, is a former federal prosecutor and the ranking member of the House Permanent Select Committee on Intelligence.
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