Senate Republicans, by and large, have reached an unspoken consensus about President Trump and Ukraine. He should not have put a temporary freeze on congressionally authorized aid to Ukraine, should not have dabbled with using the aid to get Ukraine to investigate Joe Biden or a nutty theory about Ukrainian hacking during the 2016 election, and should not have kept defending his “perfect call” as such. At the same time, his conduct does not merit his removal from office — especially since voters will get to pass judgment on that conduct in a few months.
It’s a reasonable position, and it’s the case that Republicans ought to make in public. They are inhibited from doing so by the president’s obstinacy. Instead of sticking to the most defensible case for a Senate acquittal of Trump, Republicans from the president on down are making arguments that range from the implausible to the embarrassing.
Hence the claim now being advanced half-heartedly by Republicans that presidents cannot be impeached for any abuse of power unless that abuse took the form of a criminal violation of a statute. The consensus of those who have studied this question is to the contrary. Jonathan Turley, the Republicans’ star witness in the House hearings about the constitutional issues raised by impeachment, has repudiated this view. Attorney General William Barr has in the past denied it. The Founding-era debates about impeachment are clear that Congress was to be able to remove a president from office if he had exercised his legal powers in an abusive way. One example that came up during those debates: What if the president tacitly encouraged a crime and then pardoned the perpetrator? The pardon power is arguably unreviewable, and certainly very nearly so. It was left to the judgment of a majority of the House and a supermajority of the Senate, as always under the supervision of the voters, whether a president’s conduct had rendered his continuation in office intolerable.
Attempts to impeach presidents have thus frequently combined charges of crimes with charges of non-criminal abuses. A categorical denial of the latter class of charge would do violence to the Constitution and one of its checks on presidential misconduct. Republicans would be better off arguing that in this case the president’s behavior, while objectionable, should be left, as scheduled, to the judgment of the voters directly — an argument that already has the support of most voters in polls and accords with Senate Republicans’ actual beliefs. There is no need for constitutional contortions.