Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
We Already Know Enough to Conclude that President Trump Should Be Impeached and Removed from Office
The impeachment inquiry concerning President Trump’s phone call to the new leader of Ukraine is ongoing, and troubling new facts emerge on an almost daily basis. In this brief post, I explain why the facts and the law are already sufficiently clear to warrant the President’s impeachment and removal from office.
Article II, Section 4, of the United States Constitution provides that “[t]he President, Vice President and all civil officers of the United States, shall be removed from Office on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” There are reasonable scholarly debates about the meaning of “high Crimes and Misdemeanors,” but two legal propositions are clear.
First, mere political or policy disagreement with the President’s agenda does not warrant impeachment by the House of Representatives and conviction (and so removal from office) by the Senate. Impeachment was intended to be a rare and extreme measure, not a routine tool of political contestation.
Were it otherwise, the text of the Constitution would not make structural sense.
The Constitution provides (in Article I, Section 7, Clause 2) that a two-thirds vote is required in the House to override a presidential veto of a bill, but the Constitution indicates (in Article I, Section 2, Clause 5) that a mere majority vote in the House is enough to impeach the President. For those different voting thresholds to make sense, impeachment (unlike a veto override) should be used only for serious political misconduct, characteristically involving harm to the American state. It would be terribly weird and indefensible to have a lower policy-disagreement threshold in the House to remove a President than to take the much less extreme step of overriding a veto. Therefore, the simple-majority threshold for impeachment is for something much more serious than policy disagreement. That structural analysis of the constitutional text is supported by historical sources from the period of the debates over the drafting and ratification of the Constitution.
Second, a President warrants impeachment and removal from office if he pressures a foreign power to investigate a political rival. By doing that, the President is leveraging the power of his office to obtain private political gain for himself, and he is also dangerously involving foreign governments in the American electoral process. It does not matter whether the President specifically frames his request in terms of a “quid pro quo”: given the power and influence of the United States, foreign governments will inherently understand that acceding to the President’s request will carry potential benefits.
Moreover, because foreign governments will perceive that there are such benefits, they will have an incentive not only to find dirt on the President’s political opponents, but also to potentially manufacture such dirt. If presidents routinely started enlisting foreign powers to investigate their political rivals, it would present a serious threat to American constitutional democracy. Relatively free and fair national elections would become very difficult, if not impossible.
What about President Trump’s conduct?
Based on what we already know, any reasonable—that is, non-partisan—observer of his phone call with the leader of Ukraine would understand that the Ukrainians were being offered better treatment by the United States if they cooperated with Trump’s requests that they investigate a conspiracy theory favored by the President and investigate Democratic Presidential Candidate Joe Biden and his son Hunter.
Early in the call, Trump stated that “we do a lot for Ukraine” and “I wouldn’t say that it’s reciprocal necessarily.” The Ukrainian leader responded by (among other things) agreeing that “the United States is doing quite a lot for Ukraine; that “I would also like to thank you for your great support in the area of defense”; and that “we are almost ready to buy more Javelins from the United States for defense purposes.” Trump immediately replied that “I would like you to do us a favor though.” The President’s use of the word “though” indicates that the favor he was about to ask was not independent of Ukraine’s request for additional military aid. Trump then asked the Ukrainian leader to investigate “Crowdstrike,” which is a reference to the unsubstantiated conspiracy theory of the President’s personal lawyer, Rudolph Giuliani, that Ukraine (not Russia) was involved in emails stolen from the Democratic National Committee.
Later in the call, Trump asked the Ukrainian leader to have his country’s prosecutor open a criminal investigation into Joe Biden and Hunter Biden. “The other thing,” the President said, “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General [William Barr] would be great. Biden went around bragging that he stopped the prosecution so if you can look into it . . . It sounds horrible to me.”
Eager to please the President of the United States, the Ukrainian leader assured Trump that “the next prosecutor general will be 100% my person” and that “[h]e or she will look into the situation, specifically to the company that you mentioned in this issue,” and he “kindly ask[ed]” Trump for “any additional information that you can provide to us.” Near the end of the call, the Ukrainian leader reiterated that “I also want to ensure you that we will be very serious about the case and will work on the investigation.”
There is also substantial evidence indicating that United States officials (including the top American diplomat in Ukraine), like the Ukrainian leader, understood the President’s statements during the call to mean that Ukraine would receive better treatment from the United States if the Ukrainians did what Trump wanted.
Notably, the Trump Administration has yet to offer a remotely plausible explanation of why it held up millions of dollars in congressionally appropriated military funding to Ukraine before the call took place. Moreover, the one possible explanation that the President may have offered on the call—that he wanted other countries to do more to help Ukraine (“European countries . . . should be helping you more than they are,” he said)—is clearly false. European countries in fact provided more aid to Ukraine than the United States did. And there is no evidence that during this period anyone in the Trump Administration leaned on other countries to aid Ukraine.
It is entirely irrelevant to the impeachment inquiry whether or not the President thought that Biden or his son had acted criminally. If the President, his advisors, or his surrogates have concerns about the conduct of a political rival or anyone else, they can and should alert the Federal Bureau of Investigation (FBI). And if they do not alert the FBI and offer credible evidence, their claims should be viewed with great skepticism. There is, after all, a well-functioning system of federal criminal law enforcement in the United States. To date, Giuliani has offered no credible evidence.
Of course, it is easy enough for legal and political liberals to state publicly the (spectacularly obvious) conclusion that President Trump warrants impeachment and removal from office. That is because liberals also vehemently oppose President Trump’s policy agenda. But the President’s abuse of his office has moved the United States well beyond the territory of policy disagreements over matters such as tax cuts, health care, and judicial appointments. Liberals who favor impeachment will continue to have the same policy disagreements with a President Mike Pence. It is time for moderate and conservative politicians, legal scholars, and lawyers to actually put America first—in particular, to put our Constitution first.
by Neil Siegel [link]