Tuesday, January 21, 2020

The Personal is the Political (Impeachment Edition)

Mark Tushnet

Something's been nagging at me in connection with a common -- perhaps the most common -- argument supporting Trump's impeachment. I'm going to approach the specific argument indirectly, beginning with Alan Dershowitz's now notorious "Alaska" hypothetical.

As a reminder, here's the hypothetical: "Assume Putin decides to 'retake' Alaska, the way he 'retook' Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to 'its' original territory… That would be terrible, but would it be impeachable? Not under the text of the Constitution." Tweak the hypothetical: Putin informs the United States that Russia will occupy Alaska with its own military forces next week. The US president consults widely, and concludes that the risks of all-out war discounted by its improbability exceed any benefits the US will receive from retaining Alaska for the indefinite future. The president therefore informs the world that the US will not forcibly resist the Russian "invasion." Do people think that that is an impeachable act? (If so, was Trump's decision not to escalate against Iran impeachable? The point of this question is to raise the possibility that whether an action is impeachable turns on whether the underlying calculations of the national interest are correct -- or at least are within a range of political reasonableness.)

Closer to the original hypothetical: The president examines Putin's claims on the merits and concludes that they have some basis in reason -- and that maintaining good relations with Russia is in the national interest. Is acceding to Putin impeachable?

My thought here is that ordinary (and honestly done) calculations about what is in the national interest are at best problematically characterized as impeachable acts. (The contrary view, which I think has some merit, would be that at some point such calculations are so out of line with political sentiment in the nation that immediate removal via impeachment is a purely political remedy -- but the arguments for impeachment on these grounds have to be pitched in appropriate terms.)

Now to the common argument about Trump. Here's the version from the House: "Overwhelming evidence shows that President Trump solicited these two investigations in order to obtain a personal political benefit, not because the investigations served the national interest." The contrast between "the national interest" and "personal political benefit" is explicit. 

And here's the nagging concern: Suppose Trump believes, as I'm sure he does, that his reelection after a campaign against any rival is in the national interest. Or, to put it in the House's terms, the national interest coincides with a "personal" -- but really "political" -- benefit to Trump. So, why is it impeachable to act to ensure a re-election that is in the national interest?

Here too there are lots of variants, captured in Mick Mulvaney's "It happens all the time." Suppose, as political commentators appear to believe, that US policy toward Cuba -- and now Venezuela -- is determined in part by successive presidents' calculations that the policy course they pursue will make it more likely that they will carry Florida's electoral votes, and that carrying those votes (and not the policy itself) is in the national interest. 

Maybe there's some implicit idea about openness and regularity that distinguishes between Trump's version of the coincidence of personal political benefits and the national interest. (Though I note in this connection that the link between Cuba policy and electoral concerns is an open secret, with "secret" being the operative word here.)

Otherwise, maybe the argument supporting the House's formulation is simply that the equation of personal political benefit with the national interest, which I'm imputing to Trump, is simply wrong. Here the formulation probably should be that it's fine for Trump to think that his reelection would be better for the nation than the election of any rival, but that the increment of national benefit isn't great enough to justify irregular and secret actions to defeat rivals. And finally, in my view that may be the best way to understand the use of the phrase "abuse of power."

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