Drafting Articles of Impeachment

Now that many (though certainly not all) of the relevant facts concerning President Trump’s Ukraine affair are in, House Democrats face crucial choices.  Drafting articles of impeachment is no boilerplate task.  How the Judiciary Committee chooses to define Trump’s transgressions may have far-reaching consequences.  In drafting articles of impeachment Democrats are not merely determining their trial strategy in the Senate.  They are also setting the boundaries of public debate, laying the foundation for how the impeachment will be assessed, win or lose, in the 2020 presidential campaign, as well as how it will be regarded as a “precedent” for future presidents (including Trump himself if he wins a second term). 

Yet Democrats are about to encounter an issue which so far has been little discussed.  What is coming down the pike is arguably the first presidential impeachment in American history to be centered around an abuse of power not strongly connected with a crime or, for that matter, any violation of law.  This is potentially a game-changing constitutional moment.

Many commentators have the impression that past presidential impeachments have also involved non-criminal charges.  I detail why I believe this is mistaken in this article, which I will not further summarize.  For purposes of argument, let’s entertain the idea that there is something profoundly different about the Trump impeachment compared to the Nixon and Clinton impeachments – and Iran-contra, the scandal in which the impeachment of President Reagan was contemplated seriously.  We will then be able to see that the task facing Democrats is harder than they may believe.

Presidential impeachments so far have been built around the sturdy spine of the criminal law.  But this time I suggest the lead article(s) of impeachment will focus on a charge of the non-criminal abuse of power.  Does this pose a constitutional problem?  When the Judiciary Committee holds its hearing tomorrow on standards for impeachment, I have little doubt that at least some of the distinguished experts will have no trouble affirming that soliciting a foreign government (consider it could have been a foreign intelligence service with greater capabilities than Ukraine’s!) to undermine a political opponent is an obvious abuse of power satisfying the “high crimes and misdemeanors” standard.  Keith Whittington usefully reminds us that the balance of arguments has always pointed to this standard not being limited to federal crimes.  People who have already made up their minds about President Trump will agree or not.  But will this ring true to uncertain elites and the “persuadable” public?  Will it resonate in a way that benefits the Democrats who initiated the impeachment process?  Here there are reasons for doubt.

However much anti-Trump elites think it obvious, public-spirited citizens will demand to know what this impeachment is really about.  Does it centrally concern a threat to our constitutional democracy?  Or is it really about some trouble Joe Biden made for himself?  Is it best seen as Trump making trouble for the Democratic party – and not the nation as a whole?  Does Trump’s conduct really approximate Nixon’s?  These are questions inquiring minds will pose whether House Democrats want to address them up front or not.

To continue a bit further in this vein, why should the average citizen care about whether President Trump tried to undermine a specific candidate?  Would much harm have come to Biden had Trump succeeded?  More generally, does a harm to a specific person count as harm to the republic?  Please understand I realize that there is an argument to be made based on principle.  President Trump’s actions were wrong.  But for ordinary people, the harm done to principles is often judged in terms of the concrete harm done in the situation.  Did Trump’s actions cause substantial harm?  Consider also that most voters may not care that much about whether Trump tried to harm the Democratic party.  Can’t the party take care of itself?  Consider also politicians and political parties are not terribly popular with the broader public.  In any case, if there was a harm to the party or to the ordinary operation of the political system, is that not best taken care of in the context of the rapidly approaching presidential election?  Andrew Johnson aside, this is the first presidential impeachment to occur in a first term.  Democrats must make, not simply assume, a sound normative case for a non-criminal charge.  Here I will note parenthetically that Democrats failed to make their case in the Iran-contra scandal largely because they assumed the facts would speak for themselves -- which they never do!

Now consider a more general problem with centering impeachment around a non-criminal charge.  Constitutional scholars who have studied impeachment tend to assume that because non-criminal charges are allowed, that means they would be easy to formulate and defend.  I suspect this is wishful thinking.  It seems likely that a non-criminal charge can be credibly made only if there is prior agreement that the charge is impeachable.  But if there is such widespread agreement, then the conduct probably would never have occurred.  As I argue in my article, the basic reason presidential impeachments have revolved around the criminal model is that it is possible to obtain advance agreement that presidents can be impeached for committing serious federal crimes.  This poses a challenge for non-criminal impeachments.  The mere fact that the impeachment standard is not limited to crimes does not mean that there is a persuasive way to articulate a non-criminal charge in a way that is credible to the public.  To put it another way, establishing a Constitution through ratification has little to do with actually implementing it.

Democrats can address this problem by making what Cass Sunstein, in his recent book on impeachment, refers to as a reversal argument.  In plain terms, this argument asks whether turnabout is fair play.  Properly deployed, it poses a challenge for both parties in a way which is comprehensible to voters.  House Democrats should be challenged to affirm that if a president of their party committed actions similar to Trump’s, they would agree she should be removed from office.  Republicans should be similarly challenged to agree that if a Democratic president tried to undermine one of their leading candidates in a future election, then that conduct warrants impeachment.  Ordinary voters might well assume that neither affirmation should be particularly taxing – an assumption which could well give this argument a unique persuasive power.  I suggest a reversal argument is the best way to bring this non-criminal impeachment down to earth and dramatize the stakes for people not accustomed to reading The Federalist.

To support non-criminal “abuse of power” article(s) of impeachment, Democrats should be making reversal arguments 24/7, morning, noon, and night.  Only by drawing a clear line can Democrats make a non-criminal impeachment comprehensible to the persuadable public.  They should begin now.