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
The Personal is the Political (Impeachment Edition)
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."