Jurisprudence

Lindsey Graham Isn’t Breaking From Donald Trump

Trump allies, including Graham, are trying to make “no quid pro quo” this scandal’s “no collusion.”

Sen. Lindsey Graham in Washington on Thursday.
Sen. Lindsey Graham in Washington on Thursday.
Saul Loeb/AFP via Getty Images

Pressure is mounting on Senate Republicans to do something about the Trump administration’s human rights violations, blatant corruption, Giuliani-hackery, and mounting counterintelligence problems, mostly thanks to the House Democrats finally opening an impeachment inquiry into the president’s behavior. While the idea of 20 GOP senators openly defecting to support a vote to convict Donald Trump in the Senate still remains whimsical, we’re seeing significant cracks in the wall of support for any and all Trump-y conduct. Republican senators are beginning to worry about close races, and Senate Majority Leader Mitch McConnell has now shifted from promising to somehow block impeachment in the Senate to briefing his caucus on the nitty-gritty of impeachment protocols. It’s proved impossible for them to ignore, block, or pretend away Trump’s very, very bad month of October.

One thing that has been described as a crack in the firewall of Republican support for Trump is South Carolina Sen. Lindsey Graham’s comments last week to Axios (before acting chief of staff Mick Mulvaney admitted to criminal conduct from the White House briefing room) for its HBO show that aired Sunday. In that interview, Graham said something that sounded at first blush as though he could be open to voting to impeach: “Sure. I mean … show me something that … is a crime,” he said. “If you could show me that, you know, Trump actually was engaging in a quid pro quo, outside the phone call, that would be very disturbing.”

Now it’s easy to understand why that statement would seem to represent movement on Graham’s part. At Axios, Mike Allen seemed to believe that Graham is someone to watch for cracks in the red wall of Trump support in the Senate. The Washington Post’s Amber Phillips suggested that this could be an “inflection point in this impeachment debate,” because while Graham “has in the past twisted and omitted facts to protect Trump … he’s warning that at some point, he won’t anymore.”

I don’t see Graham’s comments last week as signaling anything of the sort. Instead I’d wager that Graham, whose pivot from Trump critic to Olympian bootlicker in recent years has birthed a million conspiracy theories, was working harder to prop up the Trump-Is-Perfection line of analysis than almost anyone else. Graham did just exactly what Trump and the White House and Senate Republicans needed him to do: He moved the impeachment goal posts.

Look at what Graham said again. He claimed that he would vote for impeachment in the Senate as soon as someone showed him “a crime,” and not only that—it needed to be a crime that was “outside the phone call.” In the event that you missed the head-feint there, under the plain language of the Constitution, impeachment requires no finding of criminal lawbreaking. The Constitution provides for impeachment and removal of the president and other high officers for “treason, bribery, or other high crimes and misdemeanors.” We know what treason and bribery mean, but “high crimes and misdemeanors,” while amorphous, surely encompass a lot more than merely breaking criminal laws. As Frank Bowman has explained here in Slate, the notion that impeachment remedies only criminal conduct makes no sense.

Witness the same moving of goal posts when Graham goes one further in his alleged concession on impeachment to Axios. Not only does he claim that he needs to be shown a crime, he then goes on to constrain the crime he needs to see as one that demands a quid pro quo. First of all, recognize the absurdity of Graham saying he needs more proof of quid pro quo outside of that phone call, given that the phone call provides a pretty clear indication that quid pro quo-ing was going on. As professor Laurence Tribe of Harvard Law School (also a Slate contributor) noted in an email to me:

Sen. Graham does seem to be parroting WH talking points, and not the most effective ones, either. Saying he needs to be “shown” that “Trump was actually engaging in a quid pro quo, outside the phone call,” is particularly bizarre. What about the call itself? It was hardly chopped liver. Its explicit use of the word “though” to link (a) the president’s willingness to release the aid that Congress had voted and that Ukraine was desperately seeking to defend itself from Putin’s aggression, to (b) the favor Trump wanted in return was enough in itself to establish that Trump was conditioning the aid package on assistance in his political quest both to erase Russia’s influence on his original election and to undermine his most likely 2020 opponent. If that’s not “quid pro quo,” nothing is.

Even that quid pro quo is mere icing on Schiff’s impeachment cake at this point. The Constitution provides that long before we arrived at “quid pro quo,” we were on the impeachment superhighway simply because Trump had asked Ukrainian President Volodymyr Zelensky for help beating a putative election foe. (Tribe, in the same email, puts it this way: “It’s a crime to solicit a foreign government’s aid connection with an American election, which the phone call surely establishes–and which lots of other evidence amply corroborates.”) So we don’t need the crime, or the quid pro quo, and they are certainly not the sole prerequisites for impeachment.

The truth about that quid pro quo talk? It’s the new “no collusion.” It’s a way in which the White House uses a fake legal test—like insisting that if Mueller finds no collusion then Trump is exculpated—to both define away the misconduct using made-up legal concepts and also to raise the bar far beyond what is being sought. By parroting “no collusion,” Trump and Attorney General Bill Barr (oh, and Graham) deployed a pretend crime Trump didn’t commit to distract from the actual crimes of conspiracy and obstruction that were under investigation.

By insisting there be a criminal quid pro quo in Trump’s dealing with Ukraine—a move the White House has been relying on for weeks now—Trump defenders are pretending to cede ground when, in fact, they are inventing imaginary legal baselines for misconduct and raising meaningless impeachment bars to rest somewhere above the ozone layer. Part of the reason Mulvaney’s comments last week were so damaging was that admitting Trump engaged in, and routinely trades in, quid pro quos crosses these imaginary lines, sky-high though they may be.

There is no criminality requirement for impeachment. There isn’t a quid pro quo requirement, either. Dean Erwin Chemerinsky of University of California–Berkeley told me the same thing in an email, “The Constitution does not require that there be a crime in order for it to be an impeachable offense. ‘High crimes and misdemeanors’ is thought to refer to serious abuses of power. No quid pro quo is needed for it to be deemed an abuse of power.” It’s been amply demonstrated by scholars that nobody needs to prove that Trump committed a crime under any statutory definition of criminality, to have committed the kinds of abuse of power offenses that formed the spine of the articles of impeachment against Richard Nixon.

It’s not paranoia to suggest that whenever you are offered impeachment assistance from the likes of Graham, you’ll first want to check that gift horse for bleeding gums, cavities, and halitosis before agreeing that he’s actually moving the needle on the impeachment process. In this instance, Graham isn’t edging Senate Republicans closer to an impeachment conviction. He’s trying to change the threshold for impeachable offenses into something that is possibly unmeetable (assuming Mulvaney can stop talking) and creating a but-for test that Senate Republicans can hide behind if they want to vote no. Just as presidential misconduct with Russia never should have been confined to “collusion,” impeachable conduct cannot rise and fall over explicit quid pro quos in criminal bribery statutes.

To be sure, the debate over whether or not there was a quid pro quo on offer is useful, and it’s even useful for proving noncriminal abuse of power claims. But while we can argue about quid pro quos to establish misconduct for public opinion purposes, it remains a tiny piece of the puzzle. If it turns out that a quid pro quo around aid to Ukraine can be proved, that’s outstanding news for House Democrats. But it is not necessary for a criminal impeachment conviction, and Senate Republicans should not be permitted to hide behind claims that it is. Graham’s statements should be recognized for exactly what they are—a line of defense for Trump, and a distortion of the constitutional floor for impeachment, and nothing close to a crack in the wall of protection for the president.