An explainer
The centerpiece of the Democrats’ push to impeach Donald Trump is the charge that he abused the power of the presidency by using U.S. aid to Ukraine as leverage to secure Ukrainian cooperation in investigations of political opponents. Do they have a case? Ultimately, that depends on the evidence. But first we should be clear on what is, and isn’t, a legitimate use of presidential power.
As I’ve detailed before, the Founding Fathers gave us an open-ended definition of impeachable “high Crimes and Misdemeanors” that covers a variety of abuses of official power, including conduct that is not criminal. But they also recognized that impeachment is a political remedy, and abuse of office is the most political of all grounds for impeachment. If impeachment and removal come up for a vote, politics will be foremost in the minds of every legislator in both parties. So, set aside for a moment the final question — what abuses should result in a president’s removal from office — and ask, first, if he has abused the powers of the presidency.
Is it wrong to investigate political enemies of the president?
No, at least not as any sort of a blanket rule. If the Justice Department and other federal investigating and prosecuting authorities could never go after political critics and foes of the current president, that would immunize vast swaths of government from the law. Investigation and prosecution of the executive’s political enemies raises the potential for abuse, but there’s no reason it is out of bounds when done properly.
Is it wrong for the president to push personally for a criminal investigation of political enemies of the president?
Here, we get into murkier territory. The Constitution imposes on the president, and the president alone, the duty to “take Care that the Laws be faithfully executed,” and leaves unsaid how the “chief magistrate,” as the Founders often called the president, carries that out. Thomas Jefferson personally directed the treason prosecution of Aaron Burr, his own former vice president and a bitter political enemy. But history has judged this as one of the darker episodes of Jefferson’s presidency.
More recently, Barack Obama was, properly, criticized for publicly prejudging the outcome of the investigation of his own secretary of state, Hillary Clinton being conducted by his own FBI, and for publicly musing about siccing the IRS on his critics, followed by the IRS doing just that. Elected prosecutors have been known to publicly pledge to go after particular targets, sometimes to correct the failures of their predecessors: a recent example would be Montgomery County, Pa., district attorney Kevin Steele, who had his office successfully prosecute Bill Cosby for rape after running a campaign in 2015 specifically pledging to go after Cosby. Multiple Democratic candidates for president are currently pledging to prosecute Trump.
In most individual federal prosecutorial decisions today, the most senior political appointee involved is the United States Attorney for each district — a presidential appointee, but not the president himself. My own view of the best long-term solution is to put political investigations under a single cabinet-level Inspector General. But while it is better to keep presidents removed from such decisions, the mere fact that the president is an elected official does not automatically make it abusive for him to call for criminal investigations of great public consequence.
In short, it may not be strictly forbidden for presidents to get involved in individual, politically charged prosecutions on their watch, but it is fraught with peril. While Trump’s engagement is thus a breach of norms — norms that exist for good reasons — the president’s ultimate constitutional responsibility is such that if he sincerely believes an investigation is warranted and that only presidential leadership will make one happen, it is not necessarily improper for the president to demand that something be looked into.
Is it wrong for the president to push personally for a national-security investigation of political enemies of the president?
Not all federal investigations are criminal in nature or depend on the existence of probable cause to believe a crime has been committed. The various ‘Trump–Russia collusion’ investigations were originally justified as national security probes aimed at determining the nature of Russian meddling, rather than at developing evidence of a crime. Presidents have more latitude in demanding answers to particular national-security questions, since the objective is not to take away any citizen’s liberty but to inform national-security policy decisions — decisions that are the president’s to make. Of course, such investigations by tradition have been conducted and concluded in secret, and don’t produce the politically damaging cloud of public suspicion overhanging their targets that a criminal investigation creates. That cloud, which hung over Trump for a long time, seems likely to have been at least one of his goals in digging into the activities of Joe Biden and his son, Hunter.
And directing federal investigations as a means of digging up political dirt or inflicting harm on political opponents is a grave abuse of office. That is all the more true because of the broad latitude presidents must have in the national-security area. The second article of impeachment against Richard Nixon was for improper use of the IRS, the FBI, and the Secret Service against political enemies, including by having them conduct surveillance. The full House never voted on those articles, so we should not treat all of them as legal precedent, but few people would dispute today that Nixon acted improperly in bending those agencies to those purposes.
Is it wrong for the president to push personally for foreign cooperation in a federal investigation?
No, not if there is a legitimate Justice Department investigation, and foreign cooperation in that investigation requires intervention at the level of the heads of state. In such cases, it can be proper for the president to personally ask for that in a conversation with a foreign head of state. But space on the agenda of conversations between the president and foreign heads of state is a very valuable thing; it is certainly outside the norm for a particular investigation to get on that agenda, unless it is something like the investigation of a terrorist attack. Doing so with a country as strategically important as Ukraine is a major use of American national power, and should be reserved for matters of American national importance.
Is it wrong for the president to ask a foreign government to investigate a U.S. citizen?
Yes. At a minimum, it is highly unusual and very perilous territory, with little precedent in U.S. history. Great powers such as the United States have historically guarded very jealously their own right to jurisdiction over their own citizens. Anything that smacks of handing over an American to a foreign judicial system — let alone asking a famously corrupt government to look into a high-ranking American official who had senior security clearances for years — is uncharted territory no American president should enter lightly.
Is it wrong for presidents to demand a quid pro quo from a foreign government?
By itself, of course not. Demanding things in return for favors is how much of international diplomacy works, just as it is how much of domestic politics works. But the context matters.
One objection raised to holding up aid to Ukraine as leverage over the behavior of Ukraine’s newly elected president is that Congress had already authorized and appropriated that aid, and thus the president should not have any discretion over whether to release it. This is a fair point as far as it goes, and the Founding Fathers would likely have considered it an impeachable offense for a president to ultimately refuse to spend congressionally appropriated funds. The reality, however, is that disputes on this point have arisen under many presidents, and no Congress — not even during Watergate, when there was a major fight between the branches over Nixon’s “impoundment” of funds — has ever thought the public would stand for impeachment over an appropriations fight, least of all after the president had released the aid.
More to the point, any benefit that the president obtains with the leverage of U.S. military aid to a foreign country should involve a public benefit to the American taxpayers who paid for that aid, not solely a personal or political benefit to the president personally. Using public resources for your own sole benefit is a textbook case of misappropriation of public funds. This is not a question of subjective motive: politicians often have impure motives, and many fine things have been done for the public interest by politicians who were just looking out for their own political interests. The right question to ask is whether taxpayer funds were used as leverage for something the public had no legitimate interest in, and which Trump did. The further along that scale we find ourselves, the more this looks like a genuine abuse of official power.
And while the misappropriation is less obvious if the benefit being dangled before Ukrainian officials is not taxpayer funds but a White House visit for the Ukrainian president or a visit by the vice president to Ukraine, these remain exercises of American power, which should be used for American national purposes.
Is it wrong for the president to ask a foreign head of state to cooperate with a private investigation by the president’s personal lawyer?
Yes. Maybe the most obviously improper aspect of the entire Trump–Zelensky call is Trump asking Zelensky to cooperate with a private probe being conducted by Rudy Giuliani, in his capacity as Trump’s personal lawyer. And this was not an isolated incident, as coordination with Giuliani’s investigation was apparently pressed by administration officials for months. There is no circumstance in which this is acceptable. Sending Giuliani to Europe to gather information on his own is one thing; both parties went digging overseas for campaign dirt in 2016. The problem with that is not the act of investigating, it’s what you may owe foreigners for the information.
This goes a step further: using the office of the presidency to pressure a vulnerable foreign leader to help out in a purely private, political venture of the president’s. Even leaving aside the Byzantine world of campaign-finance regulation and its oft-dubious constitutionality, this in practical effect is like asking a foreign head of state to contribute to Trump’s reelection campaign. I have yet to hear any plausible justification for how this could be an appropriate thing for a president to do.
So, those are the problems to look for in the evidence. I’ll return next time to reviewing that evidence.