I Know It When I See It

I Know it When I See It

Supreme Court Justice Potter Stewart, a son of Cincinnati, struggled to reach some legal definition of obscenity.  In the 1960’s, as the boundaries of the First Amendment freedom of expression clause were tested, the Court pondered the question:  when is a pornographic film free speech, and when it is beyond the standards; obscene and legally banned.

Eventually the Court would come to a “community standards” decision, allowing individual communities to make their own call about decency.  Oddly enough, Cincinnati would become a “hotbed” of legal action over obscenity, with the Hamilton County Prosecutor testing exactly how much he could ban in the early 1970’s.  He went from films to magazines (Hustler) to art exhibitions (Maplethorpe) and made himself the “king of censorship.”

But before that decision, Miller v Californiain 1973, the nine justices of the Supreme Court had to decide film by film.  About once a month it was “movie day” in the theatre in the basement of the Supreme Court building.  There, some of the justices, and many of the clerks (it was a mostly male club then) would watch movies.  Justices Black and Douglas took the position that there was no boundary and that all movies were protected under free speech.  They didn’t attend.  The rest ate popcorn and watched porn.

While the clerks developed “standards:” guessing that if a certain action appeared then Justice so-and-so would call it obscene, ultimately it was a completely subjective decision.  And out of that process came what was known as the “Potter Stewart standard.”  In the case (this time Cleveland Heights)  Nico Jacobellis v Ohio, 1964; Justice Stewart concurred with the decision finding the film shown (Les Amants) not to be obscene.  In his opinion, Justice Stewart put forward his honest if subjective standard for obscenity:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

“I know it when I see it:” a legal standard written in a Supreme Court decision.  Today the obscenity level of porn films is less of an issue, probably due to the internet where there are no barriers at all.  But that phrase can well be applied to the seminal issue of our time, the looming impeachment of Donald J Trump.

The standard for impeachment is clearly written in the Constitution, “…treason, bribery, or other high crimes and misdemeanors.”  (US Constitution, Article 2, §4.)

Treason is  defined in the Constitution:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort” (US Constitution, Article 3, §3.)  Bribery is not defined Constitutionally, but has an accepted definition of taking money to influence a decision.  

But “high crimes and misdemeanors” is not so easily defined.  In our current use of the term misdemeanor, should the President be removed for “jay-walking” or having a joint?  That doesn’t fit with the seriousness the authors of the Constitution placed on the impeachment process.  And “high crimes”  today is being equated with the criminal term “felonies.”  But was that the actual intent of the Constitution?

The basis for impeachment and removal of the President, as for much of the legal system of the United States, was English Common Law.  In Common Law, there were two types of crimes:  those against the king (the state) and those against commoners.  For example, “petit treason” would be to go against your brother, “high treason” would be go against the king (the state.)   A “high” crime wasn’t necessarily so much a legal “felony” as a crime against the country.

And it is possible for a President to commit a “high crime” without committing a felony.  Neal Katyah, former Acting Solicitor General under the Obama Administration, made an interesting point.  If the President decided that he was going to take a six-month vacation in Spain, abandoning his post as President, it would not be a “felony” offense.  But clearly his dereliction of duty would be impeachable.

Alexander Hamilton in Federalist 65 made a similar point, speaking of the Senate’s duty to try impeachments:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

As we await the next “shoe to drop” from the Mueller investigation, we should not get locked into the narrative that the President can only be held liable for “felonies committed.” Impeachment is “grander” than that, it is about conduct of the Presidency as well as legal or illegal actions.

What is the definition of an impeachable offense?  It may not be so legally clear, but we’ll know it when we see it.