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.