Thoughts on the House’s Impeachment of President Trump, and on the Senate’s Trial of The Impeachment

Before we turn the calendar to 2020, I have a few thoughts on the merits of the House’s impeachment of President Trump, and on the Senate’s trial of the House’s impeachment.

I started writing about impeachment in July 2018, with a long Weekly Standard essay on “The Coming Constitutional Storm.” A few months later, when Democrats won control of the House, I warned in The Bulwark that the Trump Administration would likely undertake massive resistance to House oversight, expanding the Obama Administration’s own approach.

In October, as the House opened its impeachment inquiry, I wrote about the collision of the House’s oversight powers and the President’s executive privilege, and I argued that if the House wanted its eventual judgment to be taken seriously by history, then the House needed its proceedings to be more transparent and thorough.

And finally, after the House voted to impeach President Trump, I wrote a long essay for National Review on how to think about the Senate trial, and a short piece for The Bulwark pointing out that President Trump had handed Democrats significant leverage in negotiating over the Senate trial rules.

But in all of those articles, I never really delved into my own thoughts of the merits of the impeachment articles. I discussed it a little in various inteviews and podcasts, and I tweeted about it, but I never collected things into one place.

My own views on the merits are not of any real value. (Some would say that’s true of all my opinions.) But for the sake of collecting my thoughts in one place, here you go. I am not going to comprehensively analyze every issue—this is a Medium post, not a law review article—but these are my general thoughts so far.

1. It was reasonable for the House to impeach President Trump for Ukraine request.

As I told my colleague Jonah Goldberg on his “Remnant” podcast in late October, I have always seen the Ukraine allegations as an impeachment-level event. If the President intentionally leveraged US resources to spur a foreign country to undermine one of the President’s own major political opponents, then the House should impeach the President for abusing his power in a way that directly threatens our Constitution’s democratic processes.

That position was contingent on a number of factors:

First, and most importantly, it requires some difficult line-drawing: every act that a first-term President takes will affect his prospects for re-election. Indeed, that’s the point! As Hamilton explained in Federalist № 72, a President’s eligibility for re-election is “necessary to give to the officer himself the inclination and the resolution to act his part well,” in the hopes of winning re-election. The Constitution, after all, was designed to steer a President’s “ambition” toward the public interest. But at the same time, this entails a profound threat of presidential abuse of power, because vests the executive power—the power to pardon, the power to prosecute, powers of war and diplomacy—in someone running for re-election. This delicate and frankly dangerous balance can be maintained only if there is a suitably strong power to prevent the President from abusing those powers—namely, impeachment. So we need to draw difficult lines between what assertions of presidential power rise to the level of threatening our democratic processes, and which assertions of presidential power are “mere politics.” That’s a hard line to draw in theory, but an easy line for me to draw in this case; cajoling a foreign country to pursue your own biggest political threat, would be a clear example of abuse of power.

Second, and most saliently, this calls for factual judgments regarding the President’s actions and intentions. What did the President do, and why did he do it?

On the factual point, I found that that original memorandum recounting President Trump’s July 2019 conversation with Ukraine’s President Zelensky created at least a prima facie case of presidential abuse of power. I recognize that the President did not expressly frame the discussion in terms of a quid pro quo, but I think it requires a “willing suspension of disbelief” to not see what the President was trying to do here. For the non-lawyers out there, “a prima facie case” is an initial factual showing that would be enough to support factual judgments against the President; with those initial facts on the table, I think the House was justified in holding hearings and calling witnesses, to further develop factual evidence, and (as I wrote in the Bulwark) I thought it was crucial that the Democrats carry out that process as transparently and fairly as possible.

Those hearings proved to be less than ideal (as I explain in my second point below), they produced an evidentiary record that reinforced the strength of the allegations against the President.

Meanwhile, instead of defending himself, the President asserted executive privilege widely. I recognize and respect the importance of executive privilege in our constitutional structure: like Congress’s “oversight” power, the power of executive privilege is an unstated but necessary corollary to the President’s express constitutional powers.

At the same time, as I have been arguing since the very beginning of President Trump’s term in office, the President undermines his own office, and his own presidential “energy,” but not dispelling clouds of ethical impropriety surrounding his administration. If he had a case on the merits, then he should have made it. And if he believed that the House impeachment hearings were not a fair forum to make his case, then he should have made that case outside of the hearing rooms.

He didn’t do that, of course. And looking at the evidence that has been provided to the public (to say nothing of the New York Times’s stunning report in late December), I think that there was more than enough to support impeachment of the President for his dealings with Ukraine.

By the way: I suppose it’s now ironic that I started writing about foreign influence on U.S. presidential politics back in 2015. Of course, back then, I was worried about the Clinton Global Initiative.

2. The House should have called more witnesses with firsthand knowledge of the President’s actions and better knowledge of his intentions.

As I said above, I think that the factual evidence produced so far was enough to support House impeachment. But the House should have done more: it should have worked harder to secure the testimony of people with firsthand (or better secondhand) knowledge of the President’s intentions: John Bolton, Mike Pompeo, Mick Mulvaney, and Rudy Giuliani.

I recognize that pushing them to testify would have triggered litigation over privilege, and given the timeline I don’t expect the House to wait for the conclusion of litigation before moving forward. But the House Democrats should not have set such an early, arbitrary deadline of finishing their process before Christmas. If impeachment is worth doing, it is worth doing right, and not fast-and-cheap.

Again, I think the facts adduced so far were enough to justify impeachment. But as I’ve said from the start, House Democrats should have done more, for the sake of the judgments of history.

3. I am very, very wary of the House’s impeachment of President Trump for “obstruction.”

Keith Whittington makes a very good argument in favor of the “obstruction” charge, but in the end I am very, very wary of turning “obstruction” of congressional oversight hearings into an impeachable offense.

The Trump Administration’s resistance to congressional oversight was entirely predictable: the Trump Administration predictably took the examples of Eric Holder and Lois Lerner, and grew them exponentially, recognizing (as the Obama Administration recognized) that stiff-arming oversight can be a political winner with a President’s base.

And as I noted above, the clash between Congress’s oversight power and the President’s executive privilege is a clash between two implicit constitutional powers. The Constitution doesn’t expressly grant Congress an “oversight power,” and it doesn’t expressly grant the President an “executive privilege.” Instead, these two powers are necessary and important corollaries to the Congress’s and President’s express constitutional powers. And they are both familiar features of two centuries of Presidents and Congresses pushing back against one another.

Now, I have long been skeptical of the courts being dragged into these political fights; if nothing else, it strikes me as somewhat pathetic with a house of Congress, the “first branch” of our Constitution, goes hat-in-hand to a federal trial judge and pleads to the judge to tell the President what to do. I think it would be much better for those disputes to be settled political, even if it requires some political hardball.

But outright impeachment strikes me as more than just hardball, especially when the House phrased its impeachment resolution so broadly. In its second impeachment article, the House denounces President Trump for “direct[ing] Executive Branch agencies, offices, and officials not to comply with [the House’s] subpoenas.” More specifically, the House criticizes the President for (1) directing White House officials to defy subpoenas and withhold documents from Congress, (2) directing other Administration officials to defy subpoenas and withhold documents from Congress, (3) directing current and former Executive Branch officials to not cooperate with the House’s inquiry.

The House describes this as the President’s attempt to “interpos[e] the powers of the Presidency against the lawful subpoenas of the House” and “assume[e] to himself functions and judgments necessary to the exercise of [the House’s] ‘sole power of impeachment.’’ But of course that’s not true: the President did not and cannot strip away the House’s power to impeachment him … as evidenced by the fact that the House just impeached the President for his dealings with Ukraine.

So I think the House was wrong to try to categorically de-legitimize the President’s assertion of his own (implicit) constitutional powers, even if the President made the House’s job more difficult.

And I think that the House is opening a truly awful Pandora’s Box, inviting a new era in which the House impeaches Presidents and executive branch officers simply for asserting executive privilege.

4. I don’t know whether the Senate should vote to remove President Trump.

Now that the House has impeached the President, should the Senate remove him? I don’t know.

Like the House, the Senators will need to make three types of judgments: (1) legal, (2) factual, and (3) prudential. As noted above, I think the legal issues are fairly simple. The factual issues might be affected by the introduction of new witnesses or documents; surely they’re already affected by the New York Times’s detailed account of the White House’s handling of the Ukraine issue.

But there remain prudential judgments. An election is approaching; should Senators let the voters decide whether to remove Trump from office, or does that leave too great a risk that he will commit such abuses between now and November 2020? Also, the President’s abuse of power was ultimately for naught, because it was uncovered in time to force the President to change course; should Senators still remove Trump from office when his plot failed Perhaps impeachment itself is enough of a sanction, for the sake of history.

The Senate has never removed a President from office, and while our constitutional system needs impeachment-and-removal to be a credible deterrent to presidential abuses of power, it’s not yet clear to me that President Trump’s abuse of his power, terrible as it was, justifies the Senate from taking such an unprecedented, momentous step. Once the nation crosses that threshold, we may tip balances toward many more impeachments.

These are judgments that deserve the Senate’s serious and dispassionate deliberation. As I explained in National Review, we don’t need the Senators to become “jurors.” We need them to become the kind of Senators that the Constitution intended for them to be from the start—the kind of Senators that the Constitution depends upon them being.

The Constitution vests the Senate with the power and duty to “try … Impeachments.” That constitutional provision is now so familiar that we risk glossing past its precise words: The impeachment itself is on trial. A Senate impeachment trial is not just a trial of the President per se. It is a trial of the House’s impeachment, and thus a trial of both the President’s actions and the House formal response to his actions. The Senate’s own role must begin with rules that enable it do its constitutional job, without bias for or against the President, and without bias for or against the House.

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.