The Volokh Conspiracy
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No, the Supreme Court's "Bridgegate" Decision Doesn't Vindicate Trump on Impeachment [Updated with Comment on Josh Blackman's Clarification of his Position]
An abuse of power that doesn't violate federal fraud statutes can still be an impeachable offense - and still violate other criminal law.
Jonathan Turley and co-blogger Josh Blackman argue that the Supreme Court's unanimous acquittal of the defendants in the "Bridgegate" case vindicates Donald Trump on impeachment. As Josh puts it, their argument is that the Court's holding that "abuse of power" does not violate federal fraud statutes proves that Trump (who was himself charged with abuse of power in the impeachment trial) also committed no crime, and therefore did not deserve to be impeached and convicted.
Josh adds that both Trump and the Bridgegate defendants were acting within the scope of their official powers, albeit for personal political gain, and therefore cannot be punished, except perhaps by the voters. If the Bridgegate defendants did not commit a crime when they partially shut down a bridge in order to punish a political opponent of New Jersey Governor Chris Christie, then Trump committed no crime when he withheld aid from Ukraine in order to pressure the Ukrainian government into investigating Trump's political opponent, Joe Biden.
This line of argument is wrong on multiple levels. The most obvious is that impeachment is not a criminal trial. A criminal defendant who stands to lose his life, liberty, or property, can only be convicted of a specific crime on the books. By contrast, impeachment is a process for removing an official from a position of power before his term ends. For reasons well-explained by co-blogger Keith Whittington and prominent conservative legal scholar Michael Stokes Paulsen, among others, impeachment can be justified even in cases of abuse of power where no specific law has been violated; indeed the Founders expected it to be used in such cases. Thus, the fact that the Bridgegate defendants were acquitted has little if any relevance to the question of whether Trump deserved to be impeached, convicted, and removed from office.
Perhaps the Bridgegate case does prove that Trump could not be convicted under the federal fraud statute at issue in that case, as Turley argues at some length. But the House of Representatives did not charge him with that offense. As Justice Kagan explains, the federal fraud statute at issue in the Bridgegate case only covers schemes to fraudulently obtain "money or property." Impeachment, by contrast, can also target other types of abuses of power.
In addition, Josh is wrong to claim that Trump was acting within the scope of his Article II power over foreign affairs. As I have explained in some detail previously, by threatening to withhold aid to Ukraine authorized by Congress, for reasons Congress did not authorize (pressuring Ukraine to investigate Trump's political rival Joe Biden), he was in fact usurping Congress' power of the purse, and thereby violating the Constitution. Even if that isn't a violation of the criminal code, it is illegal, and exactly the sort of abuse of power that justifies impeachment. Indeed, it is more clearly illegal than anything the Bridgegate defendants (who were, apparently, acting within the scope of their official powers) did.
I would add that, even though impeachment does not require a violation of criminal law, Trump did in violate a federal criminal statute, as well. Specifically, he violated 18 USC Section 601, which criminalizes "knowingly caus[ing] or attempt[ing] to cause any person to make a contribution of a thing of value (including services) for the benefit of any candidate or any political party, by means of the denial or deprivation, or the threat of the denial or deprivation, of…. any payment or benefit of a program of the United States,… if such employment, position, work, compensation, payment, or benefit is provided for or made possible in whole or in part by an Act of Congress." Violators are subject to a fine, a prison sentence of up to one year, or both.
Trump's threat to withhold aid money from Ukraine in order to pressure them in to investigating an opposing candidate in the 2020 presidential campaign is a serious violation of Section 601, as well as an abuse of power. I go into the relevant issues in greater detail here. In that post, I also explain why Trump's actions were not simply typical behavior for a president, and why - if they were - that would actually strengthen the case for impeachment and removal, in order to forestall future abuses of power.
Finally, Josh notes that Justice Kagan's opinion in the Bridgegate case indicates federal law "leaves much public corruption to the States (or their electorates) to address," and suggests that means they should be "left to the voters" and that Trump's abuses should similarly be left to the voters to address in an election.
But left to "the states" is not the same thing as "left to the voters" - a point Kagan recognizes when she writes that much public corruption is left to the states or to their electorates. Rather, it means that state governments can criminalize such abuses of power by their own officials, without relying on federal law. State law, after all, is the first and most important line of defense against state and local corruption. By contrast, impeachment and federal criminal law are crucial weapons in the fight against corruption by powerful federal officials. Such issues are not always best dealt with in electoral processes, especially in a time of deep polarization, when voters are often willing to overlook abuses by their own party in order to prevent the opposing party from coming to power.
Far from vindicating Trump, therefore, the Bridgegate decision merely highlights the ways in which the two cases are fundamentally different from each other.
I will not go so far as to say that Trump's continued abuses of power and horrific mishandling of the coronavirus crisis vindicate my earlier argument (also made in response to Josh) that it is better to err on the side of impeaching and removing too many "normal" presidents, than on the side of letting abusive ones get away with their wrongdoing. No single case - not even one as egregious as Trump - can by itself prove a general theory like that. But these tragic events do at least bolster my position and that of other impeachment advocates, at the margin. The same can't be said for the Bridgegate case and Trump's defense.
UPDATE: In an update to his post, Josh Blackman writes:
In response to co-blogger Ilya Somin's post, I do not think Kelly vindicated Trump, at all. At most, it cast doubt on a property-fraud theory article of impeachment. Justice Kagan, quite deliberately, distinguished this ground from "abuse of power." I agree with Ilya, and have for months, that an "abuse of power" need not be liked to any specific statutory offense.
I appreciate Josh's clarification and am sorry that I misunderstood his position. However, his post, as originally written, seemed to go beyond casting doubt on a "property-fraud theory" that wasn't even included in the articles of impeachment against Trump. The headline of the post says that the Supreme Court "opines" on the impeachment trial, which suggests more than just a commentary on a possible theory that wasn't even used at that trial. And in various passages in his post, Josh lists parallels between the two cases, and suggests the Supreme Court in the Bridgegate case resolved the relevant issues in favor of Trump's side of the matter. And, while Josh, to his credit, recognizes that impeachment for noncriminal conduct is constitutional, he has also argued that impeachment for "abuse of power" is a bad idea and should be rejected on slippery slope grounds (a position I criticized here). That said, I admit that my interpretation of this post may have been unduly influenced by Josh's prior writings on impeachment (some of which he refers to in his most recent post), which offer a much broader argument that Trump did not deserve to be impeached and convicted. I am sorry for that error.
