The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, the New York Times published my Op-Ed about the impeachment trial. I received a lot of feedback. This post will answer some of the most commonly-asked questions I received. I apologize that I can't respond to all emails, comments, and tweets. I still haven't checked my Twitter mentions. Indeed, I am using this opportunity as an excuse to wind down my Twitter usage. The site truly is a waste of time, and seldom yields any productive discourse. I removed the app from the home screen of my phone. Let's see how long this detente lasts.
1. Why didn't you write about X?
The Times asked me to write 900 words. The final version is about 1,000 words. Space is an important constraint on all op-eds. I have a very limited frame to convey an intricate positions. I spent considerable time laboring over nearly every word. I had wanted to develop some issues further, but the Times cut them out. The editors also asked me to talk about a few other issues that I would have preferred to exclude. Writing an Op-Ed requires making cuts, additions, and compromises. Given unlimited space, I could have written a book about the issues. I probably will one day–I am rarely criticized for not writing enough.
2. You didn't write about X so you must be disingenuous!
This criticism is one of the most common, and disheartening responses I received. There are many, many reasons why an Op-Ed includes some arguments, and not others. Question #1 above addresses some of the more practical rationales. Ultimately, the criticism of "Why did you write about X" boils down to "Why didn't you write the Op-Ed I would have written." There is a really simple answer: the New York Times invited me, and not you, to write the Op-Ed.
I wanted to convey very specific positions in a very limited space. It is not conceivable to simply "mention" some other argument in passing. That drive-by analysis will leave the reader uncertain, and would make my analysis incomplete. Any argument I offer has to be fully developed, or not offered at all. (The difficulties of writing a 900-word op-ed about something as complicated as impeachment should be manifest). There are lots of other issues I would have liked to discuss. But I did not have time to address the second article of impeachment. Or the Impoundment Control Act. Or the GAO decision. I decided to fully explore one aspect of the House's case–the relationship between the "abuse of power" article and "personal political benefit."
3. Only a partisan hack could write this op-ed.
I view the phrase "partisan hack" as an academic version of "deplorable"–a person could only hold a belief because he is blinded by partisan rage. I encourage anyone reading this post to remove the phrase "partisan hack" from their discourse. Moreover, I chuckle when people use this label for me. The Op-Ed criticized Trump and his lawyers, but said his conduct does not rise to the level of impeachment:
Mr. Trump's lawyers respond that the call was "perfectly normal." Yes, that phrase actually appears in the brief. Regrettably, parts of the brief are written in a far-too-political tone. . . .
As a policy matter, I disagree with Mr. Trump's decision to ask for an investigation of the Bidens. Even if warranted, it should have been avoided at all reasonable costs. The Republic would have been fine if we never learned more about Burisma.
The Times was attracted to my position precisely because I have been critical of Trump's actions, but think the articles do not warrant removal.
4. Trump wasn't interested in Ukraine actually investigating Ukraine; he only wanted an announcement of the investigation.
My co-blogger Jon Adler raised this question, which I take to be a very serious point. It is one I have given considerable thought, and have discussed at some length with colleagues. I offered a tentative response in an interview for Law and Crime:
President Trump may have reasonably believed that merely asking for an announcement of an investigation would be sufficient. That is, he would not need to follow through and supervise how the Ukrainians manage their affairs. The announcement would line up all the principals in place, and the foreign government could conduct the investigation as they see fit. Or he may have changed his mind after the phone call about what was actually needed. Priorities do shift.
The more difficult question is what is the appropriate burden of proof for an impeachment conviction. It is not Trump's burden to show that he wanted an investigation, and not merely an announcement of an investigation. I think it is the House's burden to show that Trump did not want an actual investigation, but only the announcement. I think the evidence does show he wanted an announcement about an investigation, and the evidence is silent about the follow-up. That absence of evidence, in my mind, is not sufficient to convict. We can certainly draw an inference that he didn't care about the actual investigation, and it is a reasonable inference, but not enough in my mind to remove a President.
Much of the impeachment trial turns on drawing inferences from incomplete facts. After all, Trump has refused to allow his subordinates to respond to subpoenas. I think a Senator could draw an adverse inference from this behavior. I would be hesitant for doing so, for reasons I advanced in an earlier response to Ilya.
5. It doesn't matter if other politicians act to promote their re-election campaigns. Trump withheld foreign aid in violation of the Impoundment Control Act.
Specifics matter here. Far too many commentators casually write that GAO concluded that President Trump violated the Impoundment Control Act. This claim lacks precision. The GAO found that the Office of Management and Budget violated the Impoundment Control Act. Not the President. This difference matters.
Let me state my answer differently. If the President violated the Impoundment Control Act, we would not need to consider the nebulous charge of "abuse of power." Running afoul of a statute could itself be a ground for impeachment. For example, President Johnson was impeached for violating the Tenure of Office Act. But the House did not make the specific claim in the Articles against Trump. Instead, they relied on the nebulous charge of "abuse of power," premised on a wide range of activities.
There could be grounds for impeachment with respect to the ICA. Seth Barrett Tillman and I flagged this issue on Lawfare more than a month ago:
In the impeachment context, Trump's liability could result from knowingly failing to take care that his subordinates faithfully executed the law. We say "knowingly" because it is unreasonable to expect any president to be intimately familiar with every action taken by every subordinate. Additionally, Trump may violate his oath of office if he personally directed others not to make a timely transfer of funds with an intent to block the statute's implementation.
As of now, we have only indirect evidence that the President ordered the hold. I think it is reasonable to draw that inference that he issued such an order, but we have not heard from principals who actually heard that order from Trump. (They have not been permitted to testify.) We do not have evidence that Trump knowingly ordered his subordinates to violate the statute. At most, I think it is safe to presume Trump thought ordering such a hold was lawful. GAO, and Congress, may disagree. But I think you need a higher burden of proof to establish a violation of the Oaths Clause.
6. You are normalizing Trump's dangerous behavior.
The President is being impeached based on specific legal arguments. Those arguments are either right or wrong. I view my role in this process as limited: offer my opinion on whether those arguments are right or wrong. I freely concede that imposing a higher burden of proof would allow this President, and future Presidents, to engage in abusive behavior. On this point, Ilya Somin and I largely agree. I think this tradeoff is justified. Ilya does not. The potential for future abuse does not eliminate the present-day debate about the validity of these articles.
7. You still haven't persuaded me.
I am not surprised. My goal is not to persuade people. Truly. I recognize that on most issues, people have already made up their minds. Especially on a polarized issue like impeachment, most people are dug in. I do not write to change minds. I write to articulate my position and plainly and cogently as I can. If people see a new perspective, but remain unpersuaded, I will claim victory.
Far too many people (academics especially) view persuasion as something of a blood sport. They will stop at nothing to convince other people they are wrong. Most Twitter threads, or list-serve exchanges, that go beyond two or three volleys, reflect this dynamic.
The past three years have taught me a lot about myself, and how I view others. I have tried, quite consciously, to dial back my rhetoric, proceed deliberately, and avoid assuming the worst in people. I always try to take a step back and recognize that people can hold different views in good faith. I will leave you with a mantra I often repeat: "I do not know nearly as much as I think I do." Whenever you become irate at what someone else said, pause, repeat these words of wisdom, and then consider how to proceed.