Jurisprudence

These Two Articles of Impeachment Are More Than Good Enough

Nancy Pelosi stares directly at the camera as Jerry Nadler stares off in the distance and Adam Schiff speaks into the mic.
Speaker of the House Nancy Pelosi listens as Reps. Adam Schiff and Jerry Nadler announce the next steps in the House impeachment inquiry at the Capitol on Tuesday. Win McNamee/Getty Images

On Monday, House leaders released a historic pair of articles of impeachment against President Donald Trump. Some who have been horrified by Trump’s conduct in office have raised questions over whether Democrats were right to include just two articles, arguing that Trump’s obstruction of the Mueller probe, or emoluments violations, or extreme immigration policies, might warrant many more charges and a lengthier impeachment process. This is missing the bigger picture: Critics of Speaker of the House Nancy Pelosi should stop their hand-wringing and celebrate the fact that the House did a very good job in drafting these articles of impeachment, which will likely be voted on by the full House of Representatives before Christmas. The articles are short and to the point. They focus on Trump’s twin offenses of abusing his power by withholding military aid to Ukraine and a meeting with Ukraine’s president in an effort to pressure that country to announce an investigation of Trump’s political rival, Joe Biden, and Trump’s obstruction of Congress by ordering his staff to ignore all lawful subpoenas for documents and witness testimony relevant to the impeachment inquiry.

The Democrats’ path followed the approach I suggested in a Sept. 27 article in Slate for a “clean impeachment strategy laser-focused on the Ukraine allegations” that would “not require a Carrie Mathison corkboard connecting the cast of characters with yarn.”

As many are second-guessing the House’s actions, I want to respond to some objections that have been floating around:

The House should have gone broader, and included the Mueller report allegations. The articles of impeachment do not address the Mueller report directly, but they do put Trump’s actions soliciting foreign help from Ukraine in the context of Trump’s solicitation of Russia in 2016 to leak Hillary Clinton’s emails and his request this election that the Chinese government also dig up dirt on Biden. “These actions were consistent with President Trump’s previous invitations of foreign interference in United States elections,” the first impeachment article notes.

As I suggested back in September, “while there is much in the Mueller report and other conduct that well could merit an impeachment vote, the political momentum on these issues never materialized.” Democrats would likely lose some political support for dredging up what seem like old allegations to go back there—indeed a group of moderate Democrats have apparently pushed back against even these narrow impeachment charges and would presumably offer more opposition over broader charges. Further, Democrats have not done an independent factual investigation of either the interference or obstruction portions of the Mueller report. Without independent congressional hearings on these facts, it is a mistake to include them in the current articles. But nothing stops the House from continuing to investigate additional articles for a future impeachment, keeping the Mueller issues in at least some of the spotlight throughout 2020 and perhaps eventually allowing for courts to order the production of additional evidence in both the Mueller and Ukraine cases.

The House should wait until the courts resolve disputes over evidence and testimony before moving to impeach. House Intelligence Committee Chairman Adam Schiff ably responded to this objection on Tuesday morning, explaining that court processes will take months. “The argument why don’t you just wait amounts to this: Why don’t you just let him cheat in one more election,” Schiff said. “Why not let him cheat just one more time. Why not let him have foreign help just one more time.” Even if the Supreme Court eventually orders people like former White House counsel Don McGahn to show up for a hearing, he could raise privilege claims that could take additional months to process. Trump has obstructed Congress by blocking the testimony, and delaying only rewards Trump for his obduracy.

The articles of impeachment should have included bribery. There has been a lot of question about whether Trump’s actions with Ukraine violate either the historical understanding of bribery or the current federal bribery statutes. Some focus on this because “bribery” is specifically mentioned in the Constitution as a basis for impeachment. This gets into a lot of technicalities, as does the question of whether Trump has committed extortion or campaign finance crimes. An article raising these terms will give opponents of impeachment a kind of technical defense against the charges. But using the word bribery is unnecessary as long as Trump’s abuses are spelled out clearly, which they are. Indeed, the first impeachment article describes the quid pro quo at the heart of the Ukraine affair using the language of federal bribery statutes, stating Trump “conditioned two official acts on the public announcements that he had requested.”

Trump will be emboldened and secure a political victory if the House impeaches and the Senate acquits. Given the breakdown of these issues along party lines in the House, there is good reason to expect that Republicans in the Senate will stick with Trump in any Senate trial. Trump will no doubt claim vindication and victory if he is acquitted.

This concern is no doubt correct, but it ignores the costs of doing nothing. If the House does not impeach for Trump’s abuse of power and obstruction, he will only be further emboldened. Impeaching Trump even without removal could weaken him, and it could put some swing state Republican senators into political hot water.

We really do not know what the political fallout of a Trump impeachment without removal will be. Ultimately, the best course is for the House to do the right thing and call out Trump’s abuses as it sees them, and then deal with the political fallout when it comes.