Last week, Speaker of the House Nancy Pelosi announced her support for impeaching President Donald Trump, asking the House Judiciary Committee to draft articles of impeachment. On Monday, that same committee is hearing presentations from staff counsel on the grounds for a presidential impeachment.
With impeachment looking more and more like an inevitability, now is probably a useful time to consider what articles of impeachment might actually look like. Looking at the articles approved against Presidents Richard Nixon and Bill Clinton, it’s possible to model roughly what such charges against Trump might be. Such possible articles can be graded on two scales: strength of the evidence, and strength of the argument that the offense is an impeachable offense.
Below is a sample set of potential articles of impeachment against Trump based on Tuesday’s House Intelligence Committee report, along with commentary about the basis for those articles and the strength of the case. (Boilerplate formalities are included in the first illustrative article, but thereafter suggested through ellipses.)
Article 1. Bribery
In his conduct while President of the United States, Donald Trump, contrary to his oath to faithfully execute his office and to take care that the laws be faithfully executed, has committed Bribery, in that in his dealings with the government of Ukraine, he personally and through his agents sought to obtain things of only personal value to him to influence him in the commission of official acts. The things of only personal value to him included the announcement and/or initiation by the Ukrainian government of two official investigations: one tending to discredit a political rival, and the other to discredit the president’s critics and a lawful investigation of Russia’s political interference in the 2016 election, neither investigation being necessary or appropriate for the general public good. The official acts included a proposed White House meeting between the President of Ukraine and himself, as well as millions of public dollars in military aid to Ukraine that had been withheld as part of the conspiracy.
In all of this, Donald Trump has undermined the integrity of his office, brought disrepute on the Presidency, betrayed his trust as President, and acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.
Bribery is clearly an impeachable offense, as it is listed explicitly as the second item in Article 2, Section 4. There was no federal criminal bribery statute at the time of the founding, and so the founders’ understanding of bribery was based on English common law, which described bribery as receiving an undue reward to influence behavior in office. Under that same common law tradition, merely seeking to receive such undue reward would constitute an illicit attempt, similarly corrupt in nature. Assuming Trump did in fact seek to have Ukraine announce or begin investigations into former Vice President Joe Biden and the Democratic National Committee as a condition for either the delivery of $390 million in military aid or an Oval Office visit, and assuming that the investigations were sought in the service of helping Trump’s campaign rather than the national interest, this would constitute a relatively clear ground for impeachment.
The evidence that he did so is significant. It includes the testimony of Ambassador to the European Union Gordon Sondland, who testified that he delivered the message to Ukraine that aid and the meeting were contingent on the announcement of investigations on behalf of Trump and other members of the administration; testimony from State Department aide David Holmes, who directly heard Trump ask about the investigations in a phone call to Sondland; the “readout” transcript of Trump’s July 25 phone call with the Ukrainian president, in which Trump, when asked about Javelin missiles for Ukraine, referred to both investigations and said, “I want you to do us a favor, though”; and the public confession of White House chief of staff Mick Mulvaney, who was responsible for holding up the aid and said that it was done as part of a quid pro quo to launch at least one of the investigations. Also probative is the sequence of events, including the fact that the military aid was suspended without explanation prior to the July 25 call; that the Ukrainian president was scheduled to announce the investigations in a September CNN interview; that the hold on aid was only lifted two days after news of the whistleblower complaint surfaced and the House launched an investigation of the incident; and that shortly after the aid was lifted, the CNN interview was canceled.
Article 2. Abuse of Office
[…] Donald Trump […] abused the power of his office in his dealings with the Ukrainian government, in that he personally and through his agents sought to use the official power and prestige of his office in order to receive things of only private benefit, including the announcement and/or initiation by the Ukrainian government of two official investigations tending to discredit (i) a political rival and (ii) the President’s own critics and a lawful investigation of Russia’s political interference in the 2016 election.
In all this, Donald Trump has undermined the integrity of and brought disrepute on his office, betrayed his trust of office, to the manifest injury of the people.
The second article of impeachment against Nixon included an allegation that Nixon had misused government agencies and personnel for purposes “unrelated to … any other lawful function of his office.” This is consistent with the founders’ understanding that an impeachable offense need not be a crime per se, but may refer to any significant breach of public trust or abuse of authority. Again, assuming the investigations lacked legitimate purpose, withholding the aid and/or Oval Office visit and instructing subordinate personnel to use said withholding as leverage to obtain announced investigations would arguably constitute this kind of abuse of power. Similarly, merely soliciting a foreign government for a thing of value to his presidential campaign—as the July 25 call readout makes clear happened—is likely a campaign finance violation and abuse of power. The argument that this is an “impeachable offense” is not as crystal clear as with bribery, mentioned expressly in Article 2, but it is nonetheless very plausible.
The evidence for this article would be substantially the same as that for Article 1. This article would be easier to prove, in that it would require not a clear quid pro quo, but only that Trump generally used the power and prestige of his office to receive a purely personal political benefit—again, something evidenced directly in the July 25 call.
Article 3. Obstruction of a Lawful Congressional Investigation
… Donald Trump … has failed without lawful excuse to produce papers and things as directed by duly authorized subpoenas issued by a Committee of the House of Representatives; and has willfully ordered subordinates to disobey lawful subpoenas for testimony. The subpoenaed papers and things were relevant to the Committee’s legitimate efforts to resolve by direct evidence factual questions relating to presidential direction, knowledge, or approval of actions demonstrated by other evidence to be substantial grounds for impeachment. In refusing to produce these papers and things, and by ordering his subordinates to disobey lawful subpoenas for testimony, Donald Trump interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives.
While not referenced explicitly in Article 2, Section 4, obstruction of lawful official investigations seems pretty clearly to be an impeachable offense. It lay at the heart of the Clinton impeachment. And an article similar to this one was included as the third article against Nixon.
As for the evidence, it’s undisputed that Trump has categorically refused to cooperate with the impeachment investigation, ordering his subordinates to refuse to show up for subpoenaed testimony and ordering the executive branch to decline to produce requested documents. The House Intelligence Committee report documents this extensively, and it’s set out in an October letter from White House counsel Pat Cipollone. In doing so, Trump has asserted an unprecedentedly broad claim of absolute immunity of the executive branch from compelled testimony. These assertions of privilege don’t involve close legal calls, reasonable disagreements about the law, or good faith administration attempts to negotiate reasonable limits on the scope of questioning of cooperating witnesses. They are absolute and—for all intents and purposes—would place the president above the law, the opposite of what was envisioned by the founders. To date, various federal courts have rejected these broad claims, which would also seem to go against the Supreme Court holding in U.S. v. Nixon regarding the Watergate tapes. Unless the Supreme Court were to reverse these decisions and endorse these broad new theories of executive privilege, there would be a substantial legal argument that these wholesale refusals were an impeachable abuse of power.
WHEREFORE, Donald Trump, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.
This is more boilerplate language that appeared in the articles against both Nixon and Clinton, but it gets to the point. Removal from office is the purpose of impeachment. Disqualification from any future federal office is optional, but would likely be included in any articles of impeachment against Trump.
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