A brief reply to a friend’s argument about impeachment

No, President Trump is not being impeached for things that all presidents do. And he’s not like Lincoln in the Civil War, either.

The Peacemakers

During the Cold War, William F. Buckley Jr. would sometimes poke fun at those who tried to equate the CIA with the KGB. He recounts this in Miles Gone By (2004):

[Some say] there is little to choose between the KGB and the CIA. Both organizations, it is fashionable to believe, are defined by their practices. … [T]o say that the CIA and the KGB engage in similar practices is the equivalent of saying that the man who pushes an old lady into the path of a hurtling bus is not to be distinguished from the man who pushes an old lady out of the path of a hurtling bus: on the grounds that, after all, in both cases someone is pushing old ladies around.

I thought of Buckley’s quip as I read my friend Josh Blackman’s argument, in the New York Times, that President Trump can’t be impeached for politically motivated actions because all presidents are politically motivated.

Criticizing the House Impeachment Managers’ contention that President Trump’s dealings with Ukraine were motivated by “his personal political benefit rather than for a legitimate policy purpose,” Josh argues that “our Constitution does not allow Congress to take a vote of ‘no confidence’ for a president who pursues legal policies that members of the opposition party deem insufficiently publicly spirited.” Politically motivated actions aren’t impeachable, Josh writes — they’re normal.

Needless to say, it is often good for presidents to carry out their duties with an eye to winning political support. As Alexander Hamilton explains in Federalist № 72, this is why the original Constitution did not prohibit a president from running for re-election: “to give to the [president] himself the inclination and the resolution to act his part well,” convincing “the people, when they see reason to approve of his conduct, to continue him in his station.”

In that respect, political motivation is not inherently bad or inherently good. The public — and impeachment — judges a president according to his actions, his intent, and their effects on the national interest. And when a president’s political self-interest motivates him to commit acts constituting “high Crimes and Misdemeanors,” it is no excuse to say, well, all presidents are political.

Josh’s criticism of the House Democrats’ theory of impeachment rests upon a dubious premise: namely, that President Trump’s actions with respect to Ukraine were actually motivated by a mix of genuine policy interest and political self-interest. “Politicians pursue public policy, as they see it, coupled with a concern about their own political future,” he writes. “Politicians routinely promote their understanding of the general welfare, while, in the back of their minds, considering how those actions will affect their popularity ... And there is nothing corrupt about acting based on such competing and overlapping concerns.” (Emphases added.)

But this is not actually the case that the House is making. The House is not arguing that President Trump was motivated partly by political self-interest and partly by the public interest. Rather, the House is arguing, rightly or wrongly, that President Trump was motivated by political self-interest instead of the public interest, and that the action he took on those motives was wrongful and harmful. It is plain on the face of the House’s first article of impeachment: “In all of this, President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.”

Indeed, the House’s view of Trumps’s singularly self-interested motivation is stated plainly even in the line that Josh quotes from the the House managers’ impeachment trial memorandum: The House seeks to expel Mr. Trump because he acted “for his personal political benefit rather than for a legitimate policy purpose.”

When Josh concludes his op-ed, he reiterates this mistake framing of the House’s argument: he asserts that the House impeached President Trump for pursuing “policies that the opposition party deem insufficiently publicly spirited.” But the House’s real argument, right or wrong, is that President Trump’s actions were not publicly spirited at all and did affirmative harm to the American national interest.

Similarly, Josh frames the President’s own conduct as being motivated partly by the public interest and partly by political self-interest. “Politicians pursue public policy, as they see it,” he writes, “coupled with a concern about their own political future.” Later, Josh suggests that Trump’s actions were motivated first and foremost by the general welfare, and that political self-interest was just in the background: “Politicians routinely promote their understanding of the general welfare, while, in the back of their minds, considering how those actions will affect their popularity.”

I think these characterizations of Trump’s interactions with Ukraine’s government—trying to get Ukraine to announce a corruption investigation into the son of Trump’s own major political rival—require a willing suspension of disbelief. But more importantly, it is only by reframing the Trump impeachment case as an argument about mixed motivations, and by presuming that President Trump was motivated partly or mostly by genuine concern for the public good and not purely self-interested motivations, can he suggest that the House impeached President Trump for something that all presidents do.

Josh goes so far as to analogize President Trump’s Ukraine episode to President Lincoln’s conduct of the Civil War. At risk of being harsh to my friend, I think this is a profoundly inapt analogy.

In September 1864, President Lincoln sent a letter to General Sherman, asking Sherman to let at least some of the solidiers from Indiana return home to vote in the upcoming state elections, so that control of the state government might not be won by “those who will oppose the war in every possible way.”

Josh presents this as an example of “dueling motives” or “competing … concerns”—a “public motive” of winning the war and preserving the Union, and a “private motive” of political victory. Josh is clearly trying to be evenhanded here, but even this framing of Lincoln’s actions and motivations are profoundly wrong. As Lincoln’s letter makes clear, his entire purpose was to sustain the Union’s ability to win the Civil War. To the extent that a political calculation was involved, it was only a calculation of whether more votes were needed to win a state election that seemed necessary to win the war and save the Union. Those are not “dueling motives” or “competing” concerns—they are a singleminded (and righteous) pursuit of the public interest.

Moreover, while Josh frames Lincoln’s letter to Sherman as an example of a president who was “considering his political future while executive the office,” Lincoln specifically emphasized in his letter that he was not asking the soldiers to stay for a vote in the presidential election.

And while Josh suggests that “Lincoln’s request risked undercutting the military effort by depleting the ranks” and putting the remaining soldiers in greater peril, Lincoln told Sherman that he should do only what “you safely can, yourself being the judge of what you can safely do.”

In short, there is no plausible analogy between President Lincoln’s motives and actions in the Civil War, and the motives and actions that House Democrats ascribe to President Trump in the Ukraine episode. The only way one can make such an analogy is by simply assuming away all of President Lincoln’s publicly minded motivations and concerns. Having assumed them away all, one might say yes, all presidents wants to win elections. Like Buckley, the CIA, the KGB, and the little old lady all over again.

I’ll repeat myself one last time: House Democrats are not impeaching President Trump because they don’t like the particular mix of selfish and public-minded motives that allegedly spurred him to undertake the Ukraine gambit. They are impeaching him because they believe he acted out of selfish motives instead of public motives, and because they believe that those actions—attempting to leverage US assets to force a foreign nation to announce an investigation into the President’s chief political rival’s son for purposes of influencing the next presidential race—were an abuse of power and harmful to the country.

At risk of understatement, that is not the sort of thing that Presidents “routinely” do. For the things that President Trump is accused of having done, I struggle to find even a single apt analogy to another president. And definitely not Abraham Lincoln.

One closing thought: a newspaper op-ed is an extremely tight format for making nuanced historical or legal arguments. (I know that all too well!) I wonder how much of the different the points that I’m criticizing here would look slightly in a longer format. Josh is a very careful and smart scholar, which is why his arguments always need to be taken very seriously.

I’m a resident scholar at AEI, and a law professor at George Mason University, directing the law school’s Gray Center for the Study of the Administrative State.