High Crimes

At Time Robert Ray expresses an interpretation of the House’s power of impeachment that will strike many as just wrong:

So while it is fashionable at the moment for some to argue that President Trump is removable from office simply if it is proved that he abused the power of his office during his July 25 call with Ukrainian President Zelensky, the Constitution requires more. To ignore the requirement of proving that a crime was committed is to sidestep the constitutional design as well as the lessons of history. A well-founded article of impeachment therefore must allege both that a crime has been committed and that such crime constitutes an abuse of the President’s office.

The problem for those pushing impeachment is that there appears to be insufficient evidence to prove that Trump committed a crime. Half the country at present does seem prepared to conclude, on the basis of the summary of the Trump-Zelensky call released by the White House on Sept. 25, that Trump at least raised the prospect of an unlawful quid pro quo. The theory seems to be that Trump proposed an exchange of something of personal benefit to himself in return for an official act by the U.S. government. On one side of that alleged quid pro quo would be the public announcement of an investigation by Ukraine into a rival presidential candidate, former Vice President Joe Biden, and a member of Biden’s family. On the other: the release of temporarily withheld foreign aid, including military assistance.

or at least terribly inconvenient. The view that a “high crime or misdemeanor” is anything the House says it might be is pragmatic and was first noted by Gerald Ford during the Watergate hearings. It is pragmatic but it may not be legal and it is unlikely to rally many Senate Republicans to the House’s cause.

That the Constitutional formula may have an actual meaning is the very reason that ever since the story of the Ukraine phone call broke I have been saying that it was incumbent on the House to define precisely what they objected to in the president’s words and actions. I don’t believe they can without condemning presidential negotiation with foreign heads of state as such, something clearly within the scope of presidential authority. Should it be illegal for a president to ask something of political benefit to himself in negotiations? Of personal but intangible benefit? How would that not make the negotiation of the Trans-Pacific Partnership agreement, for example, an impeachable offense?

My point is: be careful how you answer.

11 comments… add one
  • steve Link

    This is where the GOP had to go isn’t it? With so many Trump appointees now appearing to support the claim that Trump was holding back arms until Ukraine announced an investigation it is looking like Trump is guilty. The last line of defense (other than GOP Senators refusing to find him guilty no matter what is found, which is what will really happen) is to say that he did it but it is not a crime, or not one worthy of impeachment.

    Should it be legal for a president to tell another country that he will order US troops stationed in their country to help protect a corrupt dictator if they will in return deposit a couple billion dollars into an offshore bank account for him? If you say yes, they you are arguing that a POTUS can do anything free of consequences. If you say no, then you are essentially where we are at present.

    Steve

  • Grey Shambler Link

    Straw-man.

  • Should it be legal for a president to tell another country that he will order US troops stationed in their country to help protect a corrupt dictator if they will in return deposit a couple billion dollars into an offshore bank account for him?

    That’s a tangible. You want to disallow intangible benefits. As I’ve been saying I’d like to see the wording of that.

  • steve Link

    Winning the presidential election is intangible? Wow!

    Steve

  • Andy Link

    Hamilton:

    “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

    Madison:

    thought it indispensable that some provision should be made for defending the Community agst. the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers.

    The notion that impeachment was intended to be limited to statutory crimes is not supported by the historical record. It wasn’t intended as an alternative system for criminal adjudication, it was intended as a check on the power of the Presidency. “A good magistrate will not fear them. A bad one ought to be kept in fear of them.”

    I think reasonable people can disagree on whether Trump’s conduct that is under consideration warrants removal from office. But the notion that it’s not “legal” for Congress to bring articles of impeachment over Trump’s actions because there might not be a clear statutory violation is, likewise, not supported by the historical record, nor does such a limitation comport with the intended purpose of the impeachment power.

  • The argument that I am making is that the House should be able to say what it is that illustrates the “perfidy” of this president and that whatever that might be would not apply to every president if the whole truth be known.

    “Abuse of power” is a legal term not a political one. In law it requires either a) express violation of a statute or b) proof of corrupt intent. This morning on one of the talking head programs a Democratic Congresswoman touched on this, making a very tenuous argument for corrupt intent. Maybe it was corrupt but, as Mr. Ray points out, proving that takes more than just an assumption. I look forward to more formidable proof of corrupt intent.

    My preference would have been that the Congress censure the president and move on rather than engaging in a protracted game of “Now I’ve Got You, You S. O. B.”. They might well have gotten bipartisan support for it. We’ll never know. But as of this writing it looks very much as though the final outcome would have been the same except with bipartisan support. I have seen more than one Republican senator say “we think it’s bad but we don’t think he should be impeached for it” which supports that speculation but, as I say, we’ll never know now.

  • Andy Link

    “The argument that I am making is that the House should be able to say what it is that illustrates the “perfidy” of this president and that whatever that might be would not apply to every president if the whole truth be known.”

    I agree the House needs to make a compelling case.

    If there’s evidence that other Presidents have done the same thing (used foreign aid to entice/coerce a foreign power to intervene in domestic politics), then I’d like to see that. Until such evidence is presented, the assumption that the charges against Trump would apply to every president “if the whole truth be known” remains an assumption and nothing more.

  • PD Shaw Link

    There is a difference btw/ a crime, and actions taken that are against the law. A President can act unlawfully without committing a crime, but he doesn’t act unlawfully simply because the action is disproved of. A rule of law is what the moderate Republicans wanted in the Johnson impeachment; most Republicans would have impeached him for being a Democrat and they had the advantage of veto-proof majorities so they could pass a law that would snare the President.

    The questions I have is what is the source of the President’s authority to hold back military aid authorized by law? Is it authority within that law or another, or is the President claiming discretionary authority as the executive. If the President held back military aid to incentive Ukraine fighting against corruption generally, would that be a legal violation? Would it matter if it was a particular American, like Paul Manafort was specifically referenced? Does it matter if there is reasonable suspicion that Hunter Biden was violating the law?

  • Andy Link

    ” If the President held back military aid to incentive Ukraine fighting against corruption generally, would that be a legal violation? ”

    There seems to be some debate about whether the President had the authority to hold back the funds for any reason. So Trump may not have had the authority in the first place.

    But my own view is that motivation is what makes this different. If President Trump was interested in combatting corruption generally in Ukraine, declared that to be US policy and conditioned aid on progress on that front, then that would be an entirely legitimate motivation, even if he lacked the specific authority to deny this particular package of aid.

    But he’s only interested in two very specific things that just happen to be related to his personal political interests. That – at the very least – suggests the motivation is not about the interests of the United States, but is only about his personal interests. President Trump didn’t even bother with a veneer or Potemkin Villiage of legitimacy.

    My question is this – if this is acceptable conduct by a President, then what is the limit? How far can a President go in using the significant power of his office – especially in foreign policy – to further his own personal interests – especially domestic political interest?

    A President, for example, has complete authority over classified information in the US government. He can declassify or give any secret government information to literally anyone. And, speaking from personal experience, we share classified information with foreign governments all the time – in service of the national interest. Is there really no difference if the reason for sharing information is completely personal? Suppose a President decides to give a foreign power access to our secrets in exchange for something of personal domestic political value only? That would not be illegal because of the President’s plenary authority when it comes to classified information, but it is, IMO, surely impeachable as an abuse of power and a clear failure to uphold the oath of the office. If the oath only matters for statutory violations, then what is the point of it? That’s an extreme example, but what President Trump did differs only in scale.

  • Were the funds held back? Was it suggested that they might be?

  • Andy Link

    Dave,

    We know the aid was held up and several people involved have testified the reason was this quid pro quo. No one in the administration has given a credible alternative reason the aid was delayed. The aid was ready and supposed to be delivered in February.

    And it’s not just the military aide, but a diplomatic meeting was also conditioned on opening the Bursima and crowdstrike investigations. The legitimacy conveyed by the United States government to a newly elected foreign leader shouldn’t hinge on that leader promising personal domestic political favors to the sitting President.

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