Magazine December 31, 2019, Issue

Four Tests for Impeachment

President Donald Trump looks on during a campaign rally in Battle Creek, Mich., December 18, 2019. (Leah Millis/Reuters)
And how the president meets them

Advocates of a president’s removal from office by Congress should have to climb over four walls to reach their objective. First, they should have to show that the facts they allege are true. Second, they should show that the fact pattern amounts to an abuse of power or dereliction of duty by the president. Third, they should show that this abuse or dereliction is impeachable. And fourth, they should show that it is prudent for Congress to remove the president for this impeachable offense: that it would produce more good than evil.

If the advocates can scale all four walls, then a majority of the House and a supermajority of the Senate ought to remove the president. If any of the obstacles proves insurmountable, the president should be allowed to serve out his term in office. In the current controversy over President Trump’s conduct toward Ukraine, it just so happens that each successive wall is higher than the previous one.

Start with the first and shortest to scale. Did President Trump try to use federal policy toward Ukraine to get it to announce an investigation into Joe Biden and his son Hunter? It is pretty clear that he did, and Republican allies of Trump have put very little effort into denying it. The Trump administration itself released a memorandum summarizing Trump’s July 25 phone call with Ukrainian president Volodymyr Zelensky, and it showed that when Zelensky asked about military aid, Trump responded by saying he wanted “a favor.” He then asked for assistance in looking into alleged Ukrainian participation in the hacking of Americans during the 2016 campaign and in investigating alleged Biden corruption.

On October 3, Trump was asked to clarify what he had wanted the Ukrainian government to do. “They’d start a major investigation into the Bidens,” he answered. Representative Debbie Lesko (R., Ariz.) nonetheless told a CNN reporter on December 13 that Trump had not asked “a foreign power to investigate a political rival.” Her office later “clarified” that she meant to deny only that Trump had wanted the investigation because Biden is a political rival. The fact that they both want to be president in 2021 was, on her view, just a coincidence.

Take the clarification seriously, and what Representative Lesko was trying to do was to defend that second wall. Sure, the president sought an investigation of Biden, but only as a means of making sure that U.S. aid was not going to a corrupt state. Senator John Kennedy (R., La.) has said that the possibility that Trump was concerned about corruption means that he cannot be proved to have had a corrupt intent.

The argument requires a willful suspension of disbelief. Gordon Sondland, the Trump-appointed ambassador to the European Union, has testified that Trump “didn’t want to hear about” Ukrainian efforts against corruption and that concerns over corruption had not led to the withholding of aid from any other country within his portfolio. The Department of Defense had certified that Ukraine was taking steps against corruption before the administration withheld aid to it.

Fighting corruption would not have required Trump to encourage Zelensky to work with Rudolph Giuliani, Trump’s personal lawyer, who has said that he was working in Ukraine to advance his client’s personal interests; it would have counseled against Trump’s doing that. Nor would the effort have required the secrecy with which it was conducted, or have required dropping around the same time it was starting to attract publicity. Kurt Volker, Trump’s envoy to Ukraine, has testified that Giuliani said that official Ukrainian statements against corruption were insufficient unless they specifically mentioned the investigations touching on the Bidens and on the 2016 campaign.

There is essentially no evidence that either investigation is worth conducting. The theory that Joe Biden acted corruptly holds that he leaned on the Ukrainian government to fire a prosecutor who was looking into a company that had his son on the board. That prosecutor’s former deputy has said that there was no active investigation, and the Obama administration was on record urging the prosecutor to assist a British legal action against the company’s owner.

The theory about Ukrainian hacking has even less going for it. A “debunked conspiracy theory” is what Tom Bossert, a former homeland-security adviser to Trump and an opponent of impeachment, has called it. Most of Trump’s defenders have dealt with the absence of any support for this theory by changing the subject to other forms of Ukrainian “interference” with the 2016 election, prominently including an op-ed a Ukrainian official wrote. But Trump wasn’t talking about that, and U.S. officials have no legitimate interest in getting Ukraine to investigate it anyway.

On, then, to the third obstacle: impeachability. Maybe Trump’s conduct was not perfect, runs the argument, but it wasn’t impeachable either. The central Democratic allegation against Trump, that he has committed an abuse of power, is vague and malleable. It’s not a crime. The central indictment in the impeachment of President Bill Clinton, by contrast, was for perjury. Those who favor a narrow definition of impeachable offenses often quote James Madison, who successfully objected to counting “maladministration” among them on the ground that it would mean the president had “tenure during pleasure of the Senate.”

Madison also said, though, that impeachment is the constitutional protection against a president who would abuse his power to pardon criminals, and that it was an appropriate remedy for “wanton removal of meritorious officers” by the president. The Constitution says Congress may impeach federal officials for bribery, treason, and “other high crimes and misdemeanors.” It is reasonable to conclude that only serious wrongs, equivalent in gravity to the first two categories, belong in the third one. We have no warrant for concluding that only violations of statutes qualify. Congress has impeached many officials for misconduct not involving statutory crimes, and included non-crimes in its efforts to impeach Presidents Andrew Johnson, Richard Nixon, and Clinton.

When the House Judiciary Committee held a hearing on the scope of the impeachment power, the Republicans called George Washington University law professor Jonathan Turley as their only witness. Even Turley conceded that the “use of military aid for a quid pro quo to investigate one’s political opponent, if proven, can be an impeachable offense.” He opposes impeachment because he believes the standard of proof should be high (an unexplained departure from his previously stated views) and has not been met.

He argued, additionally, that impeachments have greater legitimacy if at least partly based on a statutory crime. That claim might be correct in our legalistic political culture. It is related to the argument that abuse of power is too subjective a standard for removing a president. There is no getting around the fact that applying the impeachment power requires members of Congress to make a judgment, not merely a set of deductions.

The impeachment-and-removal power itself can be abused. We have protections against its abuse — including the consciences of congressmen, their election by voters, and the requirement of a House majority and a large Senate supermajority to use the power — but they are not and cannot be airtight.

Which brings us to the final wall. The strongest arguments against removing Trump fall under the heading of prudence. They hold that while he abused his power, it would be better to let voters judge that abuse in the upcoming election than for Congress to remove him; that his removal would be bitterly divisive; that it would set a dangerous precedent, encouraging Congress to strike against presidents over trivial disagreements. Like a nuclear weapon, in short, impeachment should be deployed extremely sparingly if at all.

The analogy is common but inapt. It is a nuclear weapon that replaces the president with his own handpicked ally, making it less potentially devastating in that respect than a general election. It also can’t be deployed unless the public has a much larger level of support for it than it has mustered for any presidential candidate in decades. Only once in U.S. history has a president left office because Congress was going to remove him. The possibility of impeachment is a weak check on the presidency and cannot be made into a strong one.

It might be possible to regard Trump’s Ukraine misadventure as a lapse of judgment, with little harm done, if he showed any repentance or even understanding of what he has done wrong. Instead it looks more like a window into tendencies of his that are incompatible with performing the functions of his office.

Whether Trump should be removed from office over the objections of nearly half the country is not an important question. He can’t be. There are better questions. Would it be good for the country if a large majority of Americans were to be persuaded that it is unacceptable for a president to use his office to encourage foreign governments to investigate his political opponents? Assuming that the necessary level of support to remove a president from office for that offense will not be reached, should we prefer that more elected officials go on record that it is unacceptable — or that fewer do?

If you have read this far, you know my answer to these questions. The Constitution provides for impeachment and removal to protect us from officials, including presidents, who are unable or unwilling to distinguish between the common good that government is supposed to serve and their own narrow interests. Though he has done some good things in office, Trump is just such a president. Congress should act accordingly.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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