Balkinization: Analyzing the Articles of Impeachment

Analyzing the Articles of Impeachment

Stephen Griffin

Before diving into the details of the two articles submitted today by House Democrats, I will make two points about the Trump impeachment that have been overlooked by most observers, especially (ahem) journalists.

The articles of impeachment submitted today are arguably the first in American history not to be grounded ultimately in allegations that the president committed a federal crime or other violation of law. This single fact creates unique opportunities and challenges for both parties going forward. For Democrats, it means they do not have to worry about whether the established facts satisfy the technicalities of a crime such as bribery or obstruction of justice. For Republicans, it creates the opportunity to respond by demanding clear criteria for the somewhat abstract offense of “abuse of power.” For example, haven’t all presidents abused their power to some extent? Democrats have the corresponding challenge of defending their criteria as specific and arguing that Trump is different from past presidents. They go some distance toward doing this in the first article by referring to “the integrity of the United States democratic process.”

A second aspect of this impeachment missed so far by many political observers is that in terms of the 2020 presidential election, it matters at least as much whether President Trump is checked by the impeachment process as whether he is removed and disqualified from holding office.

It seems to be overlooked that Democrats may be forced to take additional action next year if Trump repeats his Ukraine behavior. During the trial in the Senate, Republican senators who otherwise do not favor removal nonetheless have a genuine chance to caution Trump that his behavior, while not in their view impeachable, is not permissible. Whether or not Trump is removed and disqualified from holding office, all senators should be encouraged to go on the record as to whether Trump’s conduct is acceptable in our constitutional democracy. This should be a key feature of the Senate trial.

With respect to the first article, “abuse of power,” it looks to me as if Democrats decided to combine two potential articles into one. There could have been one article on abuse of power, concentrating on the action with respect to former Vice President Biden and another concentrating on the compromising of U.S. national security. Combining them was probably the right idea, it’s hard for me to assess how the Senate trial would have been different if there had been separate articles. Furthermore, although there are arguably several offenses arising from Trump’s Ukraine adventure, there is only one narrative and this article allow the Democrats to advance that narrative in a coherent way that hopefully will make more sense to the American people.

Another interesting feature of article is the emphasis on what Laurence Tribe has pointed to – the idea that Trump engaged in a pattern of conduct. The article refers to “a scheme or course of conduct.” This helps explain why it is important to look at the entire narrative rather than one episode such as the transcript (the “eight lines”). It also guards against the possibility that one or more of the enumerated facts is thrown into question. Even if this occurs, the general narrative stands. Democrats follow the example of the Clinton impeachment is asking that Trump not only be removed from office, but be disqualified. This might seem a good idea, but also might become the focus of a Republican charge of unfairness, given the pendency of the 2020 election.

The second article, “obstruction of Congress,” certainly stands on its own, but it seems unlikely anyone who is not convinced by the first article would vote for the second. Even a senator loyal to his branch rather than the White House will hesitate to remove a president without an “underlying” offense. This reality is a sad one, because it is likely that Democrats are right to think that Trump’s stonewalling is unique in American history. Today Attorney General Barr downplayed this article, saying it cannot be an impeachable offense for the White House to assert a lawful privilege. That sort of argument deserves a separate post. Here I will say that although it is true that judicial precedent is thin with respect to who wins in a subpoena conflict between Congress and the White House, the existing precedent is arguably mismatched to the impeachment process. Furthermore, in the past congressional committees and the White House have worked out their differences, but Trump’s unilateral command of no assistance obviously torpedoes that option. It is regrettable that people may see the validity of this article as depending on the first, because it presents an especially good example of a president deeming himself above the law of the Constitution.

Posted 6:15 PM by Stephen Griffin [link]