My new essay in the Atlantic on the Articles of Impeachment

The House included "abuse of power" and "obstruction of congress," but excluded articles on the Emoluments Clauses, "bribery," and "obstruction of Justice"

|The Volokh Conspiracy |

The Atlantic published my new essay on the two articles of impeachment.

Here is the introduction:

Today the House Judiciary Committee announced two articles of impeachment. The first article alleges that President Donald Trump abused his power by asking the Ukrainian President to publicly announce investigations into his political opponent, Joe Biden, and a "discredited theory" that Ukraine, not Russia, had interfered in the most recent presidential election. The second article charges that President Trump obstructed Congress by refusing to comply with impeachment-related subpoenas. In opting for these two offenses—and in excluding three others that had all been plausible—House Democrats have narrowed their charges to the allegations that are the easiest to see, if you see the world, and this presidency, as they do.

Here is the conclusion, which addresses some of the issues Orin raised in his earlier post.

The Senate is heading into uncharted territory. Once articles of impeachment are completely decoupled from any clearly-articulated offenses, the burden of charging a president with "abuse of power" is significantly reduced. Moreover, any president who refuses to comply with what he sees as an improper investigation can be charged with "obstruction of Congress." This one-two punch can be drafted with far greater ease than were the articles of impeachment presented against Presidents Andrew Johnson, Richard Nixon, or Bill Clinton.

Without question, Congress can convict a president for conduct that is not criminal. This process is not bound by the strictures of the United States Code. Moreover, Congress can begin impeachment proceedings for conduct that is inconsistent with the president's duty to faithfully execute the laws. This inquiry, though subjective, is a necessary feature of the American constitutional order. But the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity.

I hope to have much more to say about these issues in due course.

 

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  1. Used to dial popcorn to get the time; now we get popcorn to while away the time.

  2. I would say, based on this, that the Democrats have flatly given up on persuading anybody who wasn’t already on board with removing Trump for pretty much any reason whatsoever. Evidence of an objective crime would have persuaded many people who otherwise consider Trump at least a tolerable President, but it appears they came up empty on proving such a crime.

    Instead they’re just going with the subjective charges that rely on somebody assuming Trump has bad motives for otherwise lawful acts.

    Either they don’t care at this point if they get a conviction, or they have some reason for supposing they can persuade a critical number of Republican Senators to vote to convict on very dubious grounds indeed.

    It will be interesting to see, as this heads to the Senate, to what extent the Democrats manage to peel off a few Republican Senators on rules votes, to minimally prevent the trial from being a debacle, and maybe secure the secret ballot that would likely be necessary for enough Republican Senators to feel safe voting to convict.

    1. Rejecting every subpoena, instructing every witness to not testify and ignore subpoenas, and intimidating witnesses are not ‘otherwise lawful acts.’

      Regardless of what you think of his other illegal acts, the above behavior is indisputably illegal and a violation of his Oath of Office.

      You don’t get to move the goalposts whenever it suits you, and lie about his behavior, and pretend he’s done nothing wrong.

      1. Cite the statute or STFU.

        1. Open your eyes and ears and pay attention. It is beyond dispute that impeachment does not necessarily include statutory violations.

          1. I think you must have meant to post your comment in a different thread because the post I was replying to claimed that the President had committed “illegal acts” and engaged in “behavior [which] is indisputably illegal” which would require the violation of a statute.

            Hence my call for him to cite the applicable statutes that would have been violated or to STFU.

            1. How about this:

              Instead of trying to convince me that water isn’t wet, why don’t you look up the Obstruction of Justice statutes as well as Witness Tampering.

              Paste them here, and pretend that you aren’t a moron peddling ‘alternative facts’ because reality doesn’t appeal to you.

              1. Why would I do your work for you? You claimed with oh so much certainty that the President committed “illegal acts” and that his behavior was “indisputably illegal” even through after three years and fifty million dollars spent on investigations, the House Democrats couldn’t even point to an actual law that the President broke in their articles of impeachment. But if you think you know better than them, then cite the statute or STFU.

      2. In his defense, Brett’s sole purpose in these comments is to move goalposts, and to be as disingenuous as he deems necessary. So technically he does get to do that.

        1. Well, you’d certainly be an expert in disingenuousness.

        2. We have the courts that resolve disputes between the two other branches. If unlike Republicans, the Democrats won’t go to court to see if a subpoena falls within executive privilege or not (and Trump has complied with every court thus far) then they don’t really get to say something is unlawful(tm) without adjudication.

      3. Were you complaining about Obama refusing to let Holder testify about Fast & Furious?

        EVERY President tells his staff to not testify.

        If you can’t specify statutes, then how can you claim they were illegal? If you can specify statutes, then you don’t have to specify the table you’re pounding.

        1. USAG Holder testified on Fast and Furious in front of the House Oversight and Government Committee (Issa) in mid- to late-June, 2012. Good point, though.

          1. Something, something, contempt conviction, something, something

      4. “Rejecting every subpoena, instructing every witness to not testify and ignore subpoenas, and intimidating witnesses are not ‘otherwise lawful acts.’”

        So, you agree that Obama should have been impeached? Because his administration frequently refused to comply with subpoenas. And he wasn’t alone in this. Nixon, Reagan, Clinton, Bush, Obama. They all refused to comply with subpoenas at one time or another. Sometimes the judiciary upheld the refusal, sometimes they overturned it. So it’s obviously not a uniformly illegal thing to do.

        In fact, it was only a few months ago that the Obama administration’s legal fight over Congressional subpoenas in the Fast and Furious scandal was finally resolved by both sides agreeing the matter had become moot.

        Yeah, if they’d taken Trump to court over these subpoenas, they might have eventually prevailed, but then again, they might not have. Because it apparently IS legal for Presidents to refuse to comply with subpoenas under some circumstances.

        1. I don’t give two shits about your Obama complaints. That position amounts to “the Executive should be able to ignore Congressional oversight and render that Enumerated power meaningless.

          If your best argument is “Obama did it and didn’t get in trouble” then you’re not arguing – you’re excusing.

          With that point of view, there’s no reason to ever hold a President accountable to the Constitution again, because the bar will have been set to “do whatever the fuck I want and tell Congress ‘get over it.'”

          Oh wait, we’re already there.

          1. Jason wants to ignore norm-violations when his team does it.

          2. “If your best argument is “Obama did it and didn’t get in trouble” then you’re not arguing – you’re excusing.”

            Yeah, I’m not going to agree with the idea that Republican Presidents can be impeached for things that are OK for Democratic Presidents to do. I can see why that double standard would be appealing to Democrats, but it’s got no appeal to me.

            1. You’re welcome to perpetuate the myth that as long as you can point to a previous President not getting in trouble, that the behavior is clearly Constitutional.

              I think it’s the argument of a dipshit who wants to see nothing but escalation in the war against checks and balances, and will come home crying to mommy when the pendulum finally swings far enough that the error is realized.

              My team is the Constitution, and it’s long overdue to reign in politicians of all parties on what is right and wrong. If it doesn’t start with Trump, then don’t expect anyone to do more than laugh at you when you complain about the next President’s behavior being worse.

              Saying that we’ll start correcting unconstitutional behavior only when it’s a political party you don’t like clearly exposes your bias.

              Not that we all weren’t aware of it already.

      5. When they’re effectively trying to bypass executive privilege via the process I would expect any POTUS to refuse the subpoena. There’s a reason that executive privilege exists and one of them is to keep Congress from digging so much into the business of the POTUS as to make the executive branch succumb to the will and whim of Congress. Our system has a separation of powers for a reason. Without that protection, any POTUS would simply be a puppet of Congress.

      6. “Rejecting every subpoena, instructing every witness to not testify and ignore subpoenas, and intimidating witnesses are not ‘otherwise lawful acts.’”

        Obama did this repeatedly. Repeatedly.

      7. Sigh. This is called exerting “executive privilege.”

        Every President since Eisenhower has asserted executive privilege in some respect or another to prevent documents or testimony by certain people. Every one. And what happens is there’s a debate over whether the testimony or documents are covered, and it goes to the courts, and the courts rule for the President or Congress, or the parties settled.

        But now, for the first time, Congress is asserting that the very act of asserting executive privilege is impeachable. That going to the courts isn’t a sufficient remedy, by that an action that has been done by every president in the past 60 years, suddenly is impeachable.

        Which is…insane.

  3. Abuse of power will likely garner a censure at best in the Senate. Obstruction of Congress? That’s a crap charge and if removed for it (or both) would lessen the process of impeachment and removal, but also bring out the same for the Democrats the next time Republicans control the House, more especially if they control both houses of Congress.

    Then we’ll know that any POTUS will not have any chance of being a separate power but will be under the whim of Congress and we will have lost our checks and balances. At which point we’re done as a nation.

  4. Even if no Republican senator votes to convict, I applaud the representatives and senators who take seriously their oath to uphold the Constitution. It’s a simple matter of knowing right from wrong, something most of us learn very early. It saddens me when I hear the lies, misrepresentations, and phony indignation coming from the mouths of people like Lindsay Graham, who should know better. One of these days he and his comrades will have to start looking in the mirror again. That will be when they realize the irreversible harm they’ve done to their reputations and legacies.

    1. Those same representatives and senators that you praise and laud for taking “seriously” their oath to uphold the Constitution, pretty much violate their oath every single day. It’s incredible to me that low-information voters like yourself can’t see that. And discouraging.

  5. Really? For the last three years Democrats have been throwing poo around like a gang of rabid howler monkeys and *this* is all that they could come up which they (hope) would stick? Pretty underwhelming.

    1. It is decidedly weak tea. Even water brewed for three years would taste stronger.

      1. You Trumpkins have got to get your talking points straight. It can’t be both a rush to impeachment and something that they took three years to do.

        1. You Proggie Marxians have to get your Trumpkins straight; I am not one. But all opponents of Proggies look alike, don’t they?

          You also need to get up to speed. The Dems have had a multitude of rushes to impeachment before 2016 was even over.

          1. ^^^^ This.

          2. You’ve argued in favor of whatever Trump was saying or doing since you came onto this scene. Your tribal bona fides are out for all to see.

            You’re not alone in claiming to be something other than what you clearly are. Good luck with that.

            1. Also, DMN as a “Proggie Marxian” is to LOL.

        2. The Democrats have essentially been looking for a crime on which to impeach Trump. If he wasn’t rich, he’d have succumbed to impoverishment by government legal harassment. Yet they keep coming up with allegations based on very flimsy evidence. Most of the 3 years has been on Russian collusion based on Hillary’s fake dossier, but that failed with Mueller, so they pivoted to Ukraine, and made up fake allegations about him again, this time leaking them while claiming it came from a whistleblower, instead of manufactured by Schiff and company.

          It hasn’t been 3 months since the Ukrainian call. Nixon’s took 14 months.

          If we’re going to impeach someone this close to an election, seems like it’s fair game to impeach Obama and Biden for ignoring subpoenas as well (but we can add, abusing the FISA process, targeting Tea Party groups, and doing dirty deals in the Ukraine at US taxpayer expense that fatten their wallets).

  6. “Today the House Judiciary Committee announced two articles of impeachment.”

    At 9 am with Pelosi in attendance. Everyone at the podium from California and New York.

    10 AM, Pelosi announces that she reaches a deal with the mortal threat on trade.

    Its almost like impeachment is purely a political stunt.

    1. If you can’t see any other way a law can pass now other than liberal hypocrisy, that says a lot about your view of how people work together.

      1. Its the back to back press conferences. She stepped on the impeachment announcement.

        Its lefty twitter that is very angry with her. I am just amused.

        Liberal hypocrisy is when Pelosi gets real, real mad over being asked a question and goes all Catholic and mortal sin. I guess the dogma living loudly within someone is only a concern regarding certain people.

    2. It’s almost like Congress is supposed to be able to do two things at once. But I’m sure you were outraged when Newt and Republicans worked with Bill Clinton to pass legislation at the same time they were also working to impeach him. When 20-year-olds post here without the benefit of looking at even recent-history books, it really shows.

      Of course, if Pelosi has said something bizarre like, “Democrats in Congress refuse to work with the Administration until the impeachment process is concluded.”, you be [quite rightly!!!] whining about *that.* Trying to work with the president while also impeaching shows Dem’s bad faith. Refusing to work with the president while impeaching would show Dem’s bad faith. Heads I win; tails you lose.

      The logic of any 5th-grade playground dispute finds its way to the Comments page of the VC. I’m not sure what to make of that.

  7. Being a Republican obstructs a democratic House of Representatives. That charge is a gimme.
    Not following the democratic party platform abuse power of the elite. Another slam dunk.
    Sadly, the Senate will vote acquittal, based on the simple fact that being a Republican is not wrong.
    Hopefully, they will drag the trial out as long as possible to keep the democrat senators off the campaign trail.

    1. Lindsey Graham of the judiciary committee has already announced his intention to dismiss the charges as rapidly as possible, and McConnell appears to have his back on that, despite Trump’s desire to use the trial as an opportunity to strike back at the Democrats.

      From their perspective, a damaged Trump probably doesn’t look like a bad thing, so long as their fingerprints aren’t on the knife in his back.

      I’m tentatively expecting Senate rules to be adopted that are at least moderately favorable to the Democrats, given how narrow the Republican majority is in the Senate, and how disliked he is by many of the Republican Senators.

      1. I’m tentatively expecting Senate rules to be adopted that are at least moderately favorable to the Democrats, given how narrow the Republican majority is in the Senate, and how disliked he is by many of the Republican Senators.

        It depends on how they feel about getting re-elected, or even being able to retire in peace in their home state. If it’s even possible the base is getting more infuriated by the day, and the weak sauce of the articles seems to indicate a very dispirited bunch of Dems. Romney is safe because of the Mormon thing so he may peel. Murkowski, depends on whether she wants to run in 2022 or not. That’s it and even Romney will probably vote to acquit. I don’t think he wants that much heat. And what about Manchin and Jones?

      2. I do agree that none of the leaders want Trump to have the trial the way he wants to have it. They want it over and done with as quickly as possible. They should have the votes to be able to do that.

    2. I actually hope they do hold a trial. I think that will be more entertaining and enlightening because it will actually be somewhat similar to a real hearing and not the wildly one-sided show that was put on in the House. It will require facts, hard evidence and something other than hearsay and just a few opinions. Most of all, it will allow subpoenas to go out for people that didn’t get to testify.

      Who knows, maybe Trump absolutely did want it just to harm Biden (though I don’t know why Democrats are protecting the ‘old white man’ they claim to otherwise hate so much) on his campaign. I can accept that as a reasonable outcome just as much as any proffered by the right frankly. But the show of an actual legalistic trial will be quite a spectacle to behold. That and I just want a chance to see Trey Gowdy in action. He’s always amused me.

  8. OT: New York’s AG reports today that Trump has paid the $2 million dollar fine for using his charity as a piggy bank. Now back to our regularly scheduled “But what has he done wrong?!?”-athon.

    1. Sometimes even innocents pay off thugs in a shakedown.

    2. “What’s False
      However, neither Trump, nor his children Ivanka and Eric, nor his foundation, were found to have “stolen” or kept any of the donations, and so none of them “admitted to” any such actions. The New York Supreme Court explicitly acknowledged that all the funds raised for veterans groups had ultimately reached veterans groups.” Snopes

    3. Sam and Bob, those aren’t replies. They’re art! Truly.

      But you do remind me that along with settling the claim — which, as we know, Trump never does — against his fraud charity for $2mil, he’s already settled the case — which, as we know, Trump never does — against his fraud university for $25mil. Not sure if he’s paid any of that yet, though.

  9. For item (1A), is it not in the interest of the US government and even voters to investigate either Biden? What law grants a candidate immunity from investigation by the way? Past candidates certainly didn’t receive it.

    For item (1B), how does Trump supposedly benefit by asking for further investigation into the 2016 election? That doesn’t even make sense.

    Without item 2, items 1A and 1B have no meaning at all.

    So for item 2, there must be proof. I haven’t seen that presented. The only evidence we’ve heard is circumspect or else someone’s opinion about something they never witnessed.

    As a side question, does the party think there won’t be consequences in the future? Has no one learned anything from Reid and the 60-vote rule?

  10. Republicans are making this a sham. Impeachment should never get to this point because Republican senators should have already demanded Trump drop out of the 2020 race. So once Trump drops out then the House can censure him and we can move past this nonsense.

    1. Sebastian, Should we impeach a president if the SCOTUS unanimously decides the president violated the US Constitution? http://www.msnbc.com/msnbc/obama-supreme-court-recess-appointments

  11. The one thing that stands out in the articles of impeachment is the allegation that Trump solicited “the Government of Ukraine to publicly announce investigations that would benefit his reelection”.

    Reading the transcript of the call, nothing of the sort was said.
    https://drive.google.com/file/d/1uyWKAGgHIqDEORgjOyo0uq7JOXzhxOQf/preview

    If Democrats are going to make fake allegations in the articles of impeachment, they are going to regret it IMHO because of what voters think about it. What I think about it: the way Democrats treat Trump, is how they’ll treat citizens when they get power.

    1. I guess you stopped paying attention to the news after the thing-that-wasn’t-a-transcript was released several months ago, and so you failed to realize that we have a lot more evidence about Trump’s Ukraine dealings than one phone call.

      1. People’s opinions and conjecture isn’t really evidence, now is it?

      2. Granted that thing-that-wasn’t-a-transcript was a nothing burger but when they recovered that extra twenty minutes from Cheyenne Mountain that really clinched it. It’s hard to defend Trump telling Zelensky that he wouldn’t get a damn dime until he nailed Biden’s hide to the wall. That first phony thing didn’t fool any of you.

      3. Who was it, Sundland, or Vindman, (either way) that was actually there on the call, called the transcript accurate. Please stop repeating that meme that it wasn’t inaccurate. You’re just flat out wrong.

  12. I read these articles, and…wow.

    Article 2: Using executive privilege is impeachable. Wow. Just…wow. Every president in the last 70 years has used executive privilege to keep something or someone from Congress. And what happens is, it goes to the courts, and the courts decide. But now, the very act of using executive privilege at all is impeachable. Wow.

    Article 1: Not having a meeting is impeachable conduct. Or having a meeting in exchange for something. This is also amazing. Wow. I believe Sarcastro asked me to tell him when the articles were written and this came up. Well, here it is.

    Article 1: Crowdstrike. Advoctating a “disproven theory” (or whatever they called it) is impeachable. Also…amazing. We’ve funded entire centers of “alternative medicine”. Is that all now impeachable?

    1. Article 2 is particularly reckless because some of those cases could have been taken to court, and you could have gotten a contempt ruling in a few months, then had a real charge (ala what eventually got Holder to testify).

      Article 1’s problem is its too vague for people not involved heavily to understand.

  13. It is important to note what President Trump is not accused of.

    He is not accused of fabricating or forging evidence against the Bidens.

    He is not accused of withholding evidence that could exculpate the Bidens.

    He is not accused of asking President Zelensky to withhold any evidence that might exculpate the Bidens.

    The whole basis for abuse of power is that the fact that Joe Biden is a candidate for the Democratic nomination. It would not have been considered an abuse of power if Trump threatened to withhold aid unless Zelensky opened or reopened an investigation against Random Joe Sixpack.

    For that matter, Random Joe Sixpack could have asked Zelensky to invesitigate Biden, promising to donate to a charity in Ukraine, and it would not have been illegal.

    1. This continues to not be a great defense. If a defense attorney were to get up for closing statements and begin ‘lets look at all the things the prosecution didn’t charge him with that they might have if they really believed my client were guilty…’

      1. It would be a great defense, IF, the trial had been going on for several months. The Jury was treated to opening statements at the start of each day, declaring a new and different crime the defendent was facing. Then, at the end of the trial, all the witnesses the prosecution wanted are called, none of the witnesses the defense wanted were allowed, and at closing arguments, the prosecution told the Jury, two crimes never mentioned where what the Jury was to decide. Not, all the named crimes already presented, but new crimes the jury don’t even recognize as crimes, because they are familiar with the actions, and have never heard of them being prosecuted in the past

        That would be a very effective defense.

  14. Well at least the farce we live in a Constitutional Republic and a free Democracy is finally over. Thank you Democrats.

  15. Obstruction of Congress? That’s a crap charge and if removed for it (or both) would lessen the process of impeachment and removal, but also bring out the same for the Democrats the next time Republicans control the House, more especially if they control both houses of Congress.

    Don’t forget. Democrats have established a new standard of Impeachment process in the House of Representatives. Impeachment inquiry by decree. No vote of the full house is required. Now, declaration of a single house committee Chairman is sufficient to launch an impeachment inquiry.

  16. The new standard of Impeachment established by the Dems, might be the reason they refused to take the refusal to respond to subpoenas to court. A Judge would ask how the courts are to know which of the constitutional powers the House is exercising. The power of oversight? Or, the power of Impeachment?
    A Judge declaring “The House” would be required to vote on Impeachment, before the courts would know what “The House” is asking for.
    Impeachment is a political process. Not a criminal process. The vital check on that power to remove a person, legally installed in office, rests with the people, as it should. By members of the House, spared from attaching their name to the impeachment process, the people, voters, cannot hold hold their representative in Washington DC accountable at the ballot box.

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