On Thursday October 3, immediately after President Trump stood on the White House South lawn in front of television cameras and requested the governments Ukraine and China to investigate the Bidens for corruption, Ellen Weintraub, chair of the Federal Election Commission, repeated her June-2019 reminder to political candidates that asking for help from foreign governments in a federal election is illegal.
While commentators of one political stripe confidently declare that Trump’s public statements on the White House lawn are obviously in and of themselves impeachable, other equally-cocksure commentators declare that such a conclusion from a single presidential statement is ridiculous.
The divergence points to the lack of shared understanding as to what exactly is an impeachable offense. In the bewildering law of impeachment and election finance, “illegal” doesn’t necessarily mean “impeachable”, while “impeachable” is not necessarily illegal. Even proving illegality under federal election finance law is not as easy as it seems. Thus the Mueller Report declined to find illegality either in the Trump Tower meeting of June 9, 2016, in which Donald Trump Jr. welcomed the possibility of political dirt on Hillary Clinton, or in candidate Trump’s call on July 29, 2016, to “Russia if you’re listening” to help find Hillary’s missing emails. (For more on election finance law, see Part 2 of this article.)
A Metastasizing Scandal
What is clear is that the scandal surrounding President Trump’s phone call of July 29 to the President of Ukraine is metastasizing rapidly.
- An objective assessment of the transcript of the phone call shows that Trump explicitly conditioned continuance of military assistance on Ukraine launching an investigation into the Bidens.
- The phone call made explicit that the effort to dig up dirt on the Bidens was ongoing and involved not only his personal attorney Rudy Giuliani but also Attorney General Barr—an unusual role for a U.S. Attorney General.
- The White House staff demonstrated consciousness of wrongdoing when they and others attempted to cover up the phone call by placing it in an unusually secure server used only for highly classified information and attempted to block a whistleblower’s complaint from being transmitted to Congress as required by law.
- Text messages that have begun to emerge show the active role of staff of the State Department, including Ambassador William Taylor, the special envoy to Ukraine, Kurt D. Volker, and the American ambassador to the European Union, Gordon Sondland, all of whom were also deeply involved in the effort to get Ukraine to investigate the Trump’s political rival.
- Volker worked on a statement for the country’s new president in August that would have committed Ukraine to pursue investigations sought by Mr. Trump into the Bidens.
- Volker disclosed a set of text messages in which Taylor, the top U.S. diplomat in Ukraine, told Volker and Sondland, President Trump’s ambassador to the European Union, “I think it’s crazy to withhold security assistance for help with a political campaign.”
- Republican Senator Ron Johnson of Wisconsin has revealed to the Wall Street Journal that Ambassador Gordon Sondland had told him in August 2019 that aid to Ukraine was tied to Mr. Trump’s request to have Kiev investigate Democrats; and when he sought permission to tell Ukraine the aid was on its way, Trump refused.
- President Trump has presented a myriad explanations of his conduct like a guilty toddler, including that there is nothing there, that the investigation is a hoax, a coup d’etat, or even treason; that there was no request made to Ukraine, that there was a request but no quid pro quo and it was perfectly appropriate; that the request had to do with corruption in general, not the Bidens; that even if it was the about the Bidens, that was also ok; that he is now also requesting China to investigate the Bidens; that he will condition progress in the stalled trade talks with China on such an investigation; and so on. (As any parent knows, ten different explanations of possible wrongdoing are less convincing than one.)
- Even as President Trump concedes that Nancy Pelosi now has the votes to impeach him in the House of Representatives, his desperate efforts to hold together his coalition of anxious Republicans in the Senate are hampered by the shifting basis of the case he is making.
- It now transpires that Vice President Pence was also deeply involved in the Ukraine matter, having had a representative on the July 25 phone call, having received a briefing on the call, and being himself the messenger who informed the Ukraine government that continuation of military assistance was dependent on investigating corruption in which the Bidens might be involved. On October 3, Pence defended Trump’s calls for Ukraine and China to investigate the Bidens, claiming that “the American people have a right to know” if Biden and his family profited from his position.
- While no one can safely predict the future of the current impeachment process, the extraordinary fact remains: if both President Trump and Vice-President Pence were to be impeached for, and convicted of, high Crimes and Misdemeanors, Nancy Pelosi would become President.
What Is An Impeachable Offense?
It is unsurprising that the legal meaning of what is impeachable conduct is not obvious. The Founding Fathers deliberately left things unspecific, not wanting to tie the hands of future legislatures in deciding what conduct might warrant removal from office.
Legal scholars are generally agreed that “impeachable” is not the same as ‘illegal.’ Some abuses of office may be impeachable even if not criminal, while not all criminal conduct is impeachable. In 1970, then-Representative Gerald Ford famously defined an impeachable offense as “whatever a majority of the House of Representatives considers it to be at a given moment in history.” Yet getting two-thirds of the Senate to convict isn’t quite as easy or as arbitrary.
Thus President Clinton was impeached by the House of Representatives for conduct that was seemingly illegal (lying under oath and obstruction of justice). But less than two-thirds of the Senate was willing to remove Clinton for these offenses, in part due to the fact that the offenses concerned a private matter (a sexual harassment lawsuit filed against Clinton by Paula Jones) rather than a misuse of the powers of the presidency.
The Country’s Understanding
In fact, legal scholars tend to agree that an impeachable offense must involve an abuse of public trust. The mood of the country also plays a role. Thus, the Mueller Report found multiple instances where President Trump appeared to have obstructed justice, but the House of Representatives has so far not seen fit to move forward with impeachment proceedings for those acts, which were not easily understandable by the wider public.
By contrast, Trump’s phone conversation with the president of Ukraine in threatening to withhold desperately needed military assistance unless Ukraine investigates Trump’s main political rival, and subsequent efforts to cover it up, are more easily recognizable as an abuse of power. A summary of recent polls now shows a slight majority in favor of impeachment. This has prompted a decision by Nancy Pelosi, the Speaker of the House, to launch “an impeachment inquiry”.
The Irrelevance Of A Quid Pro Quo
Earlier last week, the White House had issued a talking point that there can be no impeachment of President Trump because there was “no quid pro quo” in his conversation with Ukrainian President Volodymyr Zelensky in July 2019 to investigate Joe Biden, Trump's potential opponent in the 2020 presidential race, as well as his son Hunter Biden.
As recently as October 5, Secretary of State Pompeo in public remarks from Athens was still trying to make the case (in televised remarks from Athens) that there was no quid pro quo and the U.S. administration was merely “trying to create a good relationship with the new government of Ukraine.”
Trump’s critics responded that there is an obvious quid pro quo in the very words of the transcript and that Trump, Pence and their associates have repeatedly made clear before and after the phone call that the U.S. would withhold vital military assistance unless Ukraine did Trump the favor of investigating the Bidens.
A more direct response is that neither an impeachable offense nor election finance law requires a quid pro quo: it is a crime under the election law to knowingly solicit something of value from a foreign government, regardless of any quid pro quo. Similarly, involving a foreign power in the U.S. presidential election, even without a quid pro quo, is precisely the kind of thing that the Founding Fathers were concerned about in drafting the impeachment clause: it is the quintessence of ‘a high Crime and Misdemeanor” under the Constitution.
The Constitutional Grounds For Impeachment
Given the widespread confusion about the basis for impeachment, it’s useful to recall what the U.S. Constitution itself says—and doesn’t say—about it. Article II Section 4 states:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Thus, there are three categories of impeachable offenses, “Treason”, “Bribery” and “other high Crimes and Misdemeanors.”
- “Treason”
Of the three offenses, only “Treason” is defined in the Constitution. In Article III, Section 3 of the United States Constitution, treason is specifically limited to “levying war against the US, or adhering to their enemies, giving them aid and comfort.” Since the U.S. is not currently at war, treason is irrelevant at this time. Thus, Trump is wrong, both legally and morally, to repeatedly accuse his political enemies, such as Representative Adam Schiff (D-Calif), of treason.
- “Bribery”
The Founding Fathers did not mean by “Bribery” the same thing as “bribery” under current Federal criminal law. That’s because there was no such thing as Federal criminal law at the time the Constitution was drafted. Criminal law was regarded at the time as a matter for the states: it was only in the mid-19th Century, that Federal criminal law began to emerge.
In fact, the Founding Fathers’ conception of bribery was derived from English law, under which bribery was understood as an officeholder’s abuse of the power of an office to obtain a private benefit rather than for the public interest.
In fact, according to Ben Berwick and others in the Washington Post, “Trump’s conduct almost certainly satisfies the modern statutory standard for bribery. As Randall Eliason has explained, a quid pro quo ‘need not be stated in express terms; corrupt actors are seldom so clumsy, and the law may not be evaded through winks and nods.’”
But there is no need to try to shoehorn Trump’s threat of withholding military assistance into an explicit quid pro quo of current criminal law of bribery. The more obvious charge in the current case is the category of “high Crimes and Misdemeanors.”
- “Other High Crimes And Misdemeanors”
"High crimes and misdemeanors" for the Founding Fathers signified activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons. “High” refers to the position of their office rather than the crime. A high crime is one that can only be done by someone in a unique position of authority, which is political in character, who does things to circumvent justice.
At the Constitutional Convention, Edmund Randolph said impeachment should be reserved for those who "misbehave". Benjamin Franklin also asserted that the power of impeachment and removal was necessary for those times when the Executive "rendered himself obnoxious." If that were the basis for impeachment, Trump would easily qualify, as shown in the New York Times, “Trump in 40 Sentences”, or George Conway in The Atlantic “50 Reasons Why Trump Is Unfit For Office” or the Washington Post’s finding of more than 12,000 false or misleading statements by Trump since taking office.
However, Republicans argue that these flaws are simply “Trump being Trump”. The electorate knew what it was getting when it elected Donald Trump, as this behavior was prominently on display during the 2016 presidential campaign. The argument is that there is nothing new here: they do not constitute a basis for reversing the 2016 election result.
An Abuse Of Public Trust
The case now being made by Democrats is that the Ukraine matter represents something new: an abuse of public trust. Rather than the backward-looking Mueller Report or recitals of Trump’s notorious character flaws, the Ukraine matter shows a commitment by Trump and his associates to disrupt the upcoming 2020 election. In effect, the very nature of American democracy is at stake. This is consonant with the views of the Founding Fathers.
Thus James Madison said, "...impeachment... was indispensable" to defend the community against "the incapacity, negligence or perfidy of the chief Magistrate." With a single executive, Madison argued, unlike a legislature whose collective nature provided security, "loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic."
In Federalist No. 65, Alexander Hamilton said, impeachment was appropriate for"...those offences 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."
Republican Responses
Trump’s future on impeachment now rests with Republican Senators who will vote on whether to convict Trump after he is impeached by the House of Representatives, which now seems inevitable. So far, Republican senators have said as little as possible. When forced to comment, they have tended to suggest that there is “no there there.”
- There is nothing improper about the president’s suggestion that a foreign country should investigate one of his political rivals.
- There was no quid pro quo.
- It is standard practice to consult other countries in the fight against corruption.
- Representative Steve Scalise of Louisiana, the No. 2 Republican, said in an interview that “a lot of people” want to get to the bottom of the rumors about the Bidens and that Mr. Trump “is echoing what people have been calling for, for a long time.”
- Senator Marco Rubio of Florida suggested that Mr. Trump’s statement on the White House lawn was simply aimed at provoking outrage from the news media, arguing of his public appeals to China and Ukraine, “That’s not a real request.”
- Secretary of State Pompeo stated on October 5 in televised remarks from Athens that the U.S. administration was merely “trying to create a good relationship with the new government of Ukraine.”
- In a campaign ad on Facebook, Republican Senate leader Mitch McConnell claims that any impeachment attempt will fail as long as he remains in charge of the Senate.
On October 5 on CNN, Nancy Soderberg Former U.S. Ambassador Soderberg predicted that none of these narratives would hold up under the pressure of investigation, which would establish that the U.S. administration had indeed put a quid pro quo on the table with Ukraine. Now the only question is who played what role in doing that and what are the consequences.
Bottom Line
What does it add up to? While no one can safely predict the outcome of the current impeachment process, we need to recognize that it is only the first step. As Joshua Matz & Laurence H. Tribe say in To End A Presidency, impeachment is just the beginning of addressing the governance issues that America now faces.
Even when successfully invoked, impeachment serves only to end a presidency. It doesn’t fix the democratic decline that brought a tyrant to power. It doesn’t undo the havoc he wreaked while in office. And it doesn’t forestall the trauma of expelling him through such extraordinary means. In the wake of an impeachment proceeding, “We the People” must set our world aright.”
For more on impeachment and election finance law: see Part 2 of this article: Did Trump Break Election Finance Law?
And read also:
How Trump’s Cabinet Undermines The Rule Of Law
Trump And Authoritarian Propaganda
