Accordingly, where the President's explanation of his motives defies common sense, or is otherwise unbelievable, the House is free to reject the pretextual explanation and to conclude that the President's false account of his thinking is itself evidence that he acted with corrupt motives. The President's honesty in an impeachment inquiry, or his lack thereof, can thus shed light on the underlying issue.[1]
President Nixon's case highlights the point. In its discussion of an article of impeachment for abuse of power, the House Judiciary Committee concluded that he had "falsely used a national security pretext" to direct executive agencies to engage in unlawful electronic surveillance investigations, thus violating "the constitutional rights of citizens."[2] In its discussion of the same article, the Committee also found that President Nixon had interfered with the Justice Department by ordering it to cease investigating a crime "on the pretext that it involved national security."[3] President Nixon's repeated claim that he had acted to protect national security could not be squared with the facts, and so the Committee rejected it in approving articles of impeachment against him for targeting political opponents.
Testing whether someone has falsely characterized their motives requires careful attention to the facts. In rare cases, "some implausible, fantastic, and silly explanations could be found to be pretextual without any further evidence."[4] Sifting truth from fiction, though, usually demands a thorough review of the record—and a healthy dose of common sense. The question is whether "the evidence tells a story that does not match the explanation."[5]
Because courts assess motive all the time, they have identified warning signs that an explanation may be untrustworthy. Those red flags include the following:
First, lack of fit between conduct and explanation. This exists when someone claims they were trying to achieve a specific goal but then engaged in conduct poorly tailored to achieving it.[6] For instance, imagine the President claims that he wants to solve a particular problem—but then he ignores many clear examples of that problem, weakens rules meant to stop it from occurring, acts in ways unlikely to address it, and seeks to punish only two alleged violators (both of whom happen to be his competitors). The lack of fit between his punitive conduct and his explanation for it strongly suggests that the explanation is false, and that he invented it as a pretext for corruptly targeting his competitors.
- ↑ See Tribe & Matz, To End A Presidency at 92 ("Does the president admit error, apologize, and clean house? Does he prove his innocence, or at least his reasonable good faith? Or does he lie and obstruct until the bitter end? Maybe he fires investigators and stonewalls prosecutors? … These data points are invaluable when Congress asks whether leaving the president in office would pose a continuing threat to the nation.").
- ↑ Committee Report on Nixon Articles of Impeachment (1974) at 146.
- ↑ Id. at 179.
- ↑ Purkett v. Elem, 514 U.S. 765, 776–77 (1995) (Stevens, J., dissenting).
- ↑ Dep't of Commerce v. N.Y., No. 18-966, at 27 (U.S. Jun. 27, 2019).
- ↑ See Romer v. Evans, 517 U.S. 620, 632 (1996); Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); Miller-El v. Dretke, 545 U.S. 231, 260 (2005).
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