The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Does the impeachment and potential removal of President Trump threaten to punish routine political conduct due to partisan disagreement? My co-blogger Josh Blackman makes the case for this view in today's New York Times (and expanded upon in this post below).
Josh makes some very important points that highlight how some advocates for the President's impeachment and removal have oversold their claims and made careless arguments. His piece also makes a more careful and nuanced argument against impeachment than has been made by the President's defenders. I think Josh's piece underscores some of the practical consequences of the failure of House Democrats and their allies to more forthrightly attempt to engage those outside of their base in their effort as well. All that said, I strongly disagree with Josh's bottom line. While the risk of using impeachment to advance partisan political goals is a real threat, the case that President Trump's conduct justifies impeachment and removal remains standing.
The historical episodes Josh highlights make the point that Presidents routinely consider the political consequences of their decisions, including whether certain actions will benefit them politically, even when more weighty considerations are at hand. It is a mistake to resist these claims (or to pretend, as some Democratic partisans do, that weighty decisions made by recent Presidents were not influenced by political calculations). But in an effort to draw a parallel between such conduct by past Presidents and the conduct of President Trump, Josh and I part ways.
In his op-ed, Josh writes:
What separates an unconstitutional "abuse of power" from the valorized actions of Lincoln and Johnson? Not the president's motives. In each case, a president acted with an eye toward "personal political benefit." Rather, Congress's judgment about what is a "legitimate policy purpose" separates the acclaimed from the criticized. Preserving a unified nation during the Civil War? Check. Creating a vacancy so the first African-American can be appointed to the Supreme Court? Check. But asking a foreign leader to investigate potential corruption? Impeach.
This framing, in my view, engages in a bit of bait-and-switch, and thus obscures what is actually at issue. The charge against President Trump is not that he wanted an actual investigation of corruption in Ukraine (however misguided such a request may have been), but that he did not care about whether there was an investigation at all. As virtually all of the evidence in the record shows, what he asked for was the announcement of an investigation, and that he had no interest in combating actual corruption of any kind. This difference may seem small, but it is key – and Josh's argument only works if this distinction is obscured.
Central to the argument for impeachment and removal is that the President engaged in the sort of conduct that the founders identified as justifying including impeachment in the Constitution: Using the nation's foreign policy as a tool for personal benefit, and thereby betraying the public trust.
The announcement of an investigation into Burisma and the Bidens could benefit President Trump's personal political ambitions, yet there is no plausible argument – at least no plausible argument that I have seen or heard – that the mere announcement of an investigation could or would do anything to advance any legitimate anti-corruption agenda. Further, there is now ample evidence that those helping Trump push for the announcement of an investigation, such as Rudy Giuliani, were explicitly acting on behalf of Trump himself in his personal capacity, and not the office of the President, let alone the nation. If one disbelieves such evidence, and genuinely believes the President sought an actual investigation into actual corruption, that could be a reason to conclude that no impeachable offense occurred, but the evidence for this view is decidedly lacking.
If there is evidence that Trump was actually seeking a genuine investigation, and not merely an announcement, we have not seen it. Those who might be able to substantiate such a claim, such as Ambassador John Bolton or OMB Director Mick Mulvaney, have not been allowed to testify, and the Administration has resisted releasing documents or other materials that might support this characterization of events. The evidence we have, on the other hand, supports the claim that the President wanted a politically useful announcement, and did not care at all about corruption in Ukraine, actual or imagined. In other words, while one could argue that a request for an actual investigation would have been within the bounds of expected (if regrettable) behavior by an elected official, the evidence for such an interpretation is not in the record. And as the President has acknowledged, any as-yet-undisclosed evidence on this question is within the White House's control, but they have refused to let it come to light. That, in itself, is telling.
As I have made clear, I do not believe the request for an announcement of an investigation into the Bidens and Burisma in exchange for aid and other assistance is the only impeachable offense the President has committed. Among other things, the President's request that White House Counsel create false records so as to mislead investigators is no less impeachable than President Clinton's dishonest conduct of decades ago, yet the House did not highlight these other misdeeds. Insofar as one can argue that impeachment and removal should be based upon a pattern of conduct, and not a single event, this was an unforced error.
I also question many of the choices House Democrats have made throughout this process, from failing to openly acknowledge that early investigations were related to impeachment and submitting excessive and overbroad document requests, to overstating or exaggerating evidence of "Russian collusion" and other offenses and failing to build or present a cross-ideological argument for what constitutes impeachable conduct. (My co-blogger Keith Whittington would have made an excellent witness at that hearing.) These missteps may well matter politically and may unduly complicate what should be a rather straightforward argument. On that question, we'll have to let history be the judge.
All that said, it is a mistake to suggest that the President's conduct is business-as-usual or that impeachment represents an effort to criminalize political differences, and a mistake to suggest that all that's at issue is a misguided and potentially politically motivated request for an investigation. If all that were true, I might well agree with Josh's bottom line, but it's not and so I don't.
UPDATE: A reader posits the possibility that the reason President Trump focused on an announcement of an investigation is that such an announcement could make it more likely that Ukainian officials would follow through with a meaningful investigation. In effect, the announcement would function as a commitment measure and thus would be more valuable than a private assurance that an investigation would ensue. If there were any evidence in the record to support such an account, I might find it plausible, but there isn't. Nothing the White House has said or released supports such an account. Not only that, but those individuals who might be able to substantiate such a theory have been barred from providing testimony. So while I accept the point that there is a hypothetical legitimate rationale for the demand for a public announcement, such a rationale remains purely hypothetical.