House Democrats are taking an extremely narrow approach to impeaching President Donald Trump, and, as a result, the most dramatic political challenge to executive misconduct that the Constitution envisions—a confrontation that has occurred only three other times in our history—has the whiff of half-heartedness.
By all measures, Trump’s presidency has been the most corrupt in more than 100 years (Andrew Johnson’s and Rutherford B. Hayes’ come to mind as rivals), yet you wouldn’t know it from the two articles of impeachment that the House Judiciary Committee put forth on Tuesday with the full blessing of Speaker Nancy Pelosi.
The two articles—abuse of power and obstruction of Congress—address only his conduct in the Ukraine scandal. As Article I puts it, Trump “solicited the interference of a foreign government” to boost his own prospects in the 2020 election, and, in the process, he “compromised the national security” by holding up military assistance to Ukraine until that country’s president, Volodymyr Zelensky, agreed to interfere in that election. Article II charges Trump with refusing to turn over witnesses and documents that the House committees requested while investigating Article I.
Abuse of power is clearly an impeachable offense, and Trump’s pressuring of Zelensky is clearly an abuse of power. But Trump’s presidency has been one long string of abuses. He has used his high office to make millions of dollars for his private companies, not least his hotel in D.C., where foreign dignitaries stay, knowing that doing so will put them in good stead with the president and that staying elsewhere—a fact that Trump could easily learn, since his sons are the company’s managers—will make him angry. This also appears to be a violation of the “emoluments clause” of the Constitution, which prohibits all officeholders from accepting presents “of any kind whatever, from any King, Prince, or Foreign State.” It’s worth recalling that Jimmy Carter was forced to put his peanut farm in a blind trust when he became president.
Some have argued that it’s a stronger, clearer case to focus on just one of Trump’s abuses rather than the full scattershot, and maybe they’re right. But it’s worth noting that when the House Judiciary Committee brought articles of impeachment against President Richard Nixon in 1974, the list of abuses went far beyond ordering and covering up the Watergate break-in. It also included violations of citizens’ civil liberties by illegally obtaining their tax returns, ordering the FBI and CIA to spy on them, and interfering with several federal agencies “in violation of his duty to take care that the laws be faithfully executed.”
If a president has violated his oath of office in myriad ways, it is arguably a good thing to count those ways—in part for the history books, in part to paint a complete picture of his misdeeds and shady character. Some say that this might only rally Trump’s base. Maybe. But it might also solidify the Democrats’ constituencies, while a watered-down indictment might leave them limp.
The second article of impeachment, obstruction of Congress, is oddly lame, given that the Democrats could have charged Trump with obstruction of justice, which is not only an impeachable offense but a crime. Volume II of special prosecutor Robert Mueller’s report was all about obstruction of justice, itemizing 10 instances of this offense. More than that, Mueller stopped short of indicting Trump for the crime only because the Justice Department’s Office of Legal Counsel had ruled that sitting presidents cannot be indicted. The report did state—and Mueller himself noted in his otherwise feckless testimony to the House in July—that Congress could take action. This was widely, and correctly, interpreted to mean that Congress could impeach Trump on those charges. In other words, Mueller handed the ball to the Democratic majority in Congress—and the Democrats dropped it, deliberately.
Mueller’s report cited Trump’s firing of FBI Director James Comey; Trump’s efforts to fire Mueller; his pressuring Comey to drop the investigation against his first national security adviser, Michael Flynn; Trump’s ordering White House counsel Don McGahn to deny that he’d tried to fire Mueller; and other acts—all of which were designed to obstruct the investigation into Trump’s ties to Russia. (Probably not all of these actions would have met the threshold of impeachable offenses, but some of them would have.)
Trump confidante Roger Stone’s recent conviction led some to wonder whether one article of impeachment might charge Trump with lying to federal investigators. The trial brought out that Stone had talked with Trump about WikiLeaks’ stash of hacked emails from Hillary Clinton’s campaign. But Trump told Mueller, in a written interrogation, that he had not talked about this with Stone. Lying to federal investigators is a felony as well as an obstruction of justice.
One of Nixon’s three articles of impeachment charged him with refusing to turn over some material documents to the House Judiciary Committee. But this was cited as one piece in a broad pattern of obstructing justice. That was what made the charge compelling.
Today’s House Democrats could have done the same thing; they could have placed Trump’s defiance of Congress in a broad criminal pattern of obstructing justice. By ignoring the broad pattern, by not even charging him with obstructing justice, by isolating this offense as merely a dissing of Congress, they considerably weakened their case. As Republicans have argued (and in this instance, they have a point), the Democrats could have remedied the offense by subpoenaing key witnesses and by appealing Trump’s defiance to the courts. Democrats countered that this would have taken months, allowing Trump to play out the clock until the next election, which he might still try to tamper with. They have a point, too, but it isn’t a compelling argument, on its own, for removing a president.
More than 40 years ago, the various committees investigating Watergate, as well as the special prosecutor, were vigorous and far-reaching. Seven senior officials were sentenced to prison for their roles in the break-in or the cover-up. And the process did take a lot of time. John Dean, Nixon’s White House counsel, delivered his breakthrough whistleblowing testimony before the Senate Watergate Committee in June 1973. Nixon resigned more than a year later, in August 1974.
It might also have helped if Mueller hadn’t been so hemmed in. As we learned after the report was filed, he deliberately stayed away from issues involving counterintelligence, referring more than a dozen findings (most of them highly classified, blacked out in the report’s appendix) to the Justice Department, which will almost certainly not follow through, given Attorney General William Barr’s outsize loyalty to the president.
Why did Pelosi and the other House Democratic leaders take a softer approach than they might have? There are a few possible explanations. First, the Democrats won back the House in 2018 due mainly to victories by moderates in districts that had voted for Trump in 2016. Some of these moderates were queasy about an impeachment inquiry until the revelations about Trump’s extortion of Ukraine. With that, they could come out in favor of an impeachment inquiry as a national-security issue. Pelosi, who had resisted pressure to impeach until this point, switched when she was assured that the moderates—and thus her party’s control of the House—could survive the turbulence ahead. But this meant focusing the investigation, and the subsequent articles of impeachment, exclusively on Ukraine—and putting everything about the Mueller report, which did not pan out as some expected, behind them.
Several Democrats have observed that a long, sometimes muddy debate over Trump’s alleged high crimes and misdemeanors might not be the best use of airtime to win back the White House next year. Better to get this business over with before the summer conventions—and then get back to attacking Trump for his positions on health care, education, and other issues where the Democrats’ views are more popular.
On the other hand, the limited impeachment might also make Democrats appear weak—and the Republicans emerge more triumphant—by presenting a less-than-full-throated pair of indictments and yet still failing to oust Trump from office.
In a way, Trump has placed the Democrats in a trap. On the one hand (this was Pelosi’s position until recently), impeachment might be a distraction from the election and so might hurt Democratic candidates. On the other hand, Trump’s actions, especially after the Ukraine scandal, have been so abusive and obstructive that anyone devoted to the rule of law would have to go down this road. If Trump’s actions aren’t impeachable offenses, we might as well scratch out the impeachment clauses of the Constitution.
So here we are. The House will almost certainly impeach Trump. But it takes two-thirds of the Senate to convict a president. This would require 20 Republicans to vote against Trump, and it’s hard to imagine any event more unlikely. Was it the better choice, then, for the Democrats to get this over with as quickly as possible? Or would it have been better to make the most of it and bludgeon Trump with the widest array of facts against him? We’ll find out in November.
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