Overhanging Jared Kushner when he testifies before the Senate Intelligence Committee on Monday is the threat of criminal prosecution – for alleged past behavior and for perjury if he purposefully misleads Congress. The decision whether to prosecute rests with the Special Counsel, the Justice Department, and possibly the President (think: pardons). Another remedy for some of Kushner’s alleged misdeeds is revocation of his security clearances, and that decision too is in the hands of the Executive Branch and the President. But Congress may have its own supreme power available—impeachment.
It would be wise for Kushner’s lawyers to include the prospect of impeachment in their advice to their client, and it would be wise for members of Congress to consider whether it has this instrument at their disposal for Kushner and others in the administration. Those others include leadership of the Justice Department if they were to fire Bob Mueller in a situation that amounts to obstruction of justice, or Jeff Sessions for false testimony to Congress, to name some examples. Our considering whether Congress has the power to impeach Kushner informs those other scenarios as well.
Many people mistakenly think that only a President can be impeached, but the Constitution says otherwise. The plain text states that the House may bring impeachment proceedings against “the President, the Vice President, and all civil officers of the United States.” Cabinet members are certainly on that list, and the House has previously impeached a Secretary of War. The hard question, which I address shortly, is whether Kushner, as the President’s Senior Advisor, is a “civil officer of the United States.” If he is, it is also notable that the President could not protect his son-in-law through a pardon. The Constitution is clear that the pardon power cannot forestall an impeachment.
But would Congress ever have the political impetus to impeach the President’s son-in-law or for that scenario to even reach a likelihood such that Kushner might resign? Those questions are not the focus of my attention here. Still, it’s worth considering that Kushner has the dual problem of very low favorability ratings among registered voters (22%) and low name recognition (another 44% never heard of him), according to the most recent Politico/Morning Consult poll. And according to the Monmouth poll following news of the June 9 meeting with Russians, 39% said Kushner should resign from his position and another 22% said he should lose his security clearance (which would effectively mean he could not do his job).
That said, it is also important to know if Congress has the constitutional power to impeach Kushner, but not the political will to do so. In that scenario, the White House may point the finger back down Pennsylvania Avenue: the administration could say that if Members think Kushner’s security clearances should be removed or that he should no longer serve, then Congress has its own power to remedy the situation if it wants to do so.
But what about the threshold question: is Kushner a “civil officer” under the impeachment clause? In 2015, the Congressional Research Service issued a detailed report for Members of Congress. It certainly leaves open this option, to say the least. Describing the original understanding of the Constitution, the report outlines a fairly expansive coverage of the impeachment clause that would appear to envelop positions like Kushner’s. The report states:
The congressional power of impeachment constitutes an important aspect of the various checks and balances that were built into the Constitution to preserve the separation of powers. It is a tool, entrusted to the House and Senate alone, to remove government officials in the other branches of government, who either abuse their power or engage in conduct that warrants their dismissal from an office of public trust. At least one commentator has suggested that the Framers recognized, particularly with respect to executive branch officials, that there would be instances in which it may not be in the President’s interest to remove a “favorite” from office, even when that individual has violated the public trust. As such, the Framers “dwelt repeatedly on the need of power to oust corrupt or oppressive ministers whom the President might seek to shelter.” If the impeachment power were meant to ensure that Congress has the ability to impeach and remove corrupt officials that the President was unwilling to dismiss, it would seem arguable that the power should extend to officers exercising a degree of authority, the abuse of which would be harmful to the separation of powers and good government.
The writings of early constitutional commentators also arguably suggest a broad interpretation of “civil Officers of the United States.” Joseph Story addressed the reach of the impeachment power in his influential Commentaries on the Constitution, asserting that “all officers of the United states [] who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or in the lowest departments of the government, with the exception of officers in the army and navy, are properly civil officers within the meaning of the constitution, and liable to impeachment.” Similarly, William Rawle reasoned that “civil Officers” included “[a]ll executive and judicial officers, from the President downwards, from the judges of the Supreme Court to those of the most inferior tribunals …” Consistent with the text of the Constitution, these early interpretations suggest the impeachment power was arguably intended to extend to “all” executive officers, and not just Cabinet level officials and other executive officials at the highest levels.
The Congressional Research Report also provides another framework in which executive officers who might be subject to impeachment are placed on a spectrum:
Applying the principles established in the Court’s Appointments Clause jurisprudence to define the scope of “civil Officers” for purposes of impeachment, it would appear that employees, as non-officers, are not subject to impeachment. Therefore lesser functionaries—such as federal employees who belong to the civil service, do not exercise “significant authority,” and are not appointed by the President or an agency head—would not be subject to impeachment. At the opposite end of the spectrum, it would seem that any official who qualifies as a principal officer, including a head of an agency such as a Secretary, Administrator, or Commissioner, would be impeachable.
It is not certain where Kushner’s positon would fall on that spectrum. However, it certainly is not a low risk that he is subject to the impeachment clause. In the final analysis, as the Congressional Report also suggests, “the authority to resolve any ambiguity in the scope of ‘civil Officers”’for purposes of impeachment lays initially with the House.”