Trump Is Getting Impeached Today. Should His Complaints About the Process Be Taken Seriously?

Many of the president's beefs are frivolous, but he is right that impeachment has been rushed.

Donald Trump's angry six-page letter to House Speaker Nancy Pelosi (D–Calif.) offers both frivolous and plausible grounds for questioning his impeachment. Once you get past the bluster, bragging, idiosyncratic capitalization, and other Trump tics, it offers a useful summation of the reasons Republicans are so outraged by a process that Democrats portray as a straightforward fulfillment of their constitutional responsibilities.

Trump calls impeachment an "unconstitutional abuse of power," "an illegal, partisan attempted coup," an "election-nullification scheme," and an "attempt to undo the election of 2016." In practical terms, of course, Trump's removal from office through impeachment would not "undo the election," since his party would still control the White House, with Vice President Mike Pence, who was elected on the same ticket as Trump, taking over his position. That's not exactly a coup. What about the claim that impeachment is illegal and unconstitutional?

Article II, Section 4 of the Constitution says the president "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article I, Section 2 says the House of Representatives "shall have the sole power of impeachment," while Section 3 says "the Senate shall have the sole power to try all impeachments." Trump thinks the House does not have a good reason to impeach him, but that does not mean it lacks the constitutional authority to do so.

Trump claims "the Articles of Impeachment introduced by the House Judiciary Committee are not recognizable under any standard of Constitutional theory, interpretation, or jurisprudence," because "they include no crimes, no misdemeanors, and no offenses whatsoever." But while impeachable offenses can include criminal offenses, they also include abuses of power that betray the public trust but do not necessarily violate any particular statute. George Washington University law professor Jonathan Turley, the lone Republican witness at the House Judiciary Committee's December 4 hearing on impeachment, made that point repeatedly during his testimony, which Trump cites when it supports his arguments. Trump's own lawyer, Rudy Giuliani, has conceded that impeachable offenses are not necessarily illegal, citing a pre-emptive self-pardon as an example of conduct that "would just be unthinkable" and "would lead to probably an immediate impeachment," even though the Constitution imposes no limits on the president's pardon power.

The question, as framed by the articles of impeachment against Trump, is not whether he has broken the law but whether he has abused his powers in a way egregious enough to justify his removal. Turley, who harshly criticized the impeachment process as rushed and incomplete, worries that abuse-of-power allegations can be dangerously amorphous when detached from the elements required to prove a crime. He nevertheless concedes that "the use of military aid for a quid pro quo to investigate one's political opponent, if proven, can be an impeachable offense."

Trump does himself no favors by continuing to insist in his letter to Pelosi that his July 25 telephone conversation with Ukrainian President Volodymyr Zelenskiy was "perfect" and that the reconstructed White House transcript of that call refutes the claims against him:

I said to President Zelensky: "I would like you to do us a favor, though, because our country has been through a lot and Ukraine knows a lot about it." I said do us a favor, not me, and our country, not a campaign. I then mentioned the Attorney General of the United States. Every time I talk with a foreign leader, I put America's interests first, just as I did with President Zelensky.

This parsing of us vs. me proves nothing, since us is ambiguous. It could refer, as Trump says, to the United States, or it could refer to Trump and his allies. Trump illustrated that ambiguity during the call by asking Zelenskiy to work with Giuliani, his personal lawyer, as well as Attorney General William Barr. The essence of the allegation against Trump is precisely that he framed a "favor" for him—a Ukrainian investigation of former Vice President Joe Biden, a leading contender to oppose him in next year's election—as a favor for the U.S. government, which was at that very moment withholding congressionally approved military aid to Ukraine by presidential fiat.

Trump's request for that "favor" immediately followed Zelenskiy's expression of gratitude for U.S. aid and his mention of his government's plans to buy anti-tank missiles from the United States. The conjunction of those two issues gives rise to a fair inference that there was a connection between the investigation Trump sought and the assistance that Zelenskiy was counting on. As Turley noted, Trump's conversation with Zelenskiy "was anything but 'perfect' and his reference to the Bidens was highly inappropriate." That Trump still seems oblivious to that point is of a piece with his general lack of self-awareness, disregard for diplomatic norms, and inability to admit when he is wrong.

Trump emphasizes that Zelenskiy has said he did not feel "pressure" to comply with Trump's request, which is both highly implausible and completely understandable given Ukraine's dependence on U.S. support. Since Zelenskiy will be dealing with Trump at least until January 2021 and quite possibly for another four years after that, it is perfectly rational for him to worry about the risks of reinforcing the case for impeachment, especially if he views Trump as a mercurial president driven by personal motives. And although Trump claims Zelenskiy "has repeatedly declared that I did nothing wrong," Zelenskiy actually criticized Trump's hold on the military aid, saying, "If you're our strategic partner, then you can't go blocking anything for us. I think that's just about fairness. It's not about a quid pro quo." While Trump may read that as confirmation that he "did nothing wrong," it seems more like a plea from a desperate ally who does not want his country's relationship with the United States to be tangled up in domestic American politics.

In Trump's telling, Democrats latched onto his "totally appropriate" interaction with Zelenskiy as the latest excuse for doing something they had long wanted to do:

Nineteen minutes after I took the oath of office, the Washington Post published a story headlined, "The Campaign to Impeach President Trump Has Begun." Less than three months after my inauguration, Representative Maxine Waters stated, "I'm going to fight every day until he's impeached." House Democrats introduced the first impeachment resolution against me within months of my inauguration, for what will be regarded as one of our country's best decisions, the firing of James Comey (see Inspector General Reports)—who the world now knows is one of the dirtiest cops our Nation has ever seen. A ranting and raving Congresswoman, Rashida Tlaib, declared just hours after she was sworn into office, "We're gonna go in there and we're gonna impeach the motherf****r." Representative Al Green said in May, "I'm concerned that if we don't impeach this president, he will get re-elected." Again, you and your allies said, and did, all of these things long before you ever heard of President Zelensky or anything related to Ukraine.

While that history understandably reinforces the suspicion that Democrats are targeting Trump for purely partisan reasons, it is logically irrelevant to the merits of the allegations that actually led to his impeachment. There is a reason why Pelosi and other Democratic leaders resisted impeachment for so long but changed their minds after Trump's conduct vis-à-vis Ukraine came to light. If Trump did in fact abuse his presidential powers for personal gain by pressuring a foreign government to conduct an investigation aimed at discrediting a political rival (and there is compelling evidence that he did), that would be a clear betrayal of the public trust.

In defending himself against that charge, Trump complains, "I have been deprived of basic Constitutional Due Process," including "the right to present evidence, to have my own counsel present, to confront accusers, and to call and cross-examine witnesses." But those guarantees for defendants in criminal trials do not apply in the context of impeachment, and Trump has in any case rejected opportunities to present his side of the story in the House while refusing, based on a sweeping claim of executive privilege, to provide documents or consent to testimony by current or former administration officials. During his trial in the Senate, Trump could avail himself of all the rights he says he has been denied, depending on the rules that Senate Majority Leader Mitch McConnell (R–Ky.) settles on. But McConnell, who says his approach will be dictated by what Trump wants, apparently plans to conduct a minimal trial without witnesses, leading to a quick and predetermined acquittal along party lines.

McConnell is right that he has no obligation to fill gaps in the case against Trump by calling witnesses, such as former National Security Adviser John Bolton and acting White House Chief of Staff Mick Mulvaney, whom the House decided not to subpoena in the hope of avoiding prolonged court battles over whether they could be compelled to testify. And Trump is right that charging him with obstruction of Congress seems premature, since the House did not bother to test his executive privilege claims in court, which could have resulted in orders requiring the testimony of Bolton et al. as well as the production of relevant documents.

At the same time, the assumption that such highly placed sources would have incriminating things to say is rather telling. The upshot of a hasty impeachment in the House and a hasty acquittal in the Senate is that the question of whether Trump committed "high crimes and misdemeanors" will never be fully considered.