The Articles of Impeachment: Thin Gruel

December 11, 2019 Updated: December 11, 2019
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Commentary

A journalist of my acquaintance, on seeing the proposed articles of impeachment, called them “underwhelming.” That’s a pretty good description.

The Constitution authorizes impeachment and removal from office for “high Crimes” (approximately, felonies) and “high … Misdemeanors.” Unlike in the Nixon and Clinton cases, the proposed articles contain no real allegations of felonious behavior.

Thus, when the impeachment managers from the House of Representatives appear before the Senate, they will have two jobs rather than one: First, they must prove the factual elements of their case. Second, after proving the facts, they must convince two-thirds of the senators that the facts are serious enough to constitute a “high Misdemeanor.”

Although the House Judiciary Committee contends that Congress has very wide latitude in defining “high … Misdemeanors,” that isn’t what the Constitution means. Leading legal sources published during the founding era tell us that impeachment is only for violations of “the known and established law.” If no “high Crime” is present, the impeachment managers must convince the Senate that the official was guilty of what founding-era lawyers called a “breach of trust.” Today we call it a breach of fiduciary duty.

By this standard, Article II of the impeachment resolution is a nonstarter. It attacks President Donald Trump for resisting House impeachment subpoenas. The president, however, contends that whether an impeachment subpoena is valid is for the courts to determine. After all, the executive branch is supposed to be a separate branch of government, independent of Congress. If the House alone could decide whether a subpoena is enforceable, Congress would have a tool to harass the executive into submission.

Fundamentally, the subpoena controversy is a good faith legal dispute. Taking a position in a good faith legal dispute isn’t an impeachable offense. In the absence of presidential defiance of an adverse Supreme Court ruling, the Senate may opt to dismiss Article II out of hand.

Article I is more serious. It claims Trump is guilty of the fiduciary violation of “self-dealing”—although it doesn’t use that term.

Specifically, it alleges that the president “solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election.” It further asserts that Trump conditioned foreign aid and a White House visit on Ukraine’s compliance (the quid pro quo) and that this action “compromised the national security of the United States and undermined the integrity of the United States democratic process.”

Of course, assertion isn’t proof. To persuade the Senate on this count, House impeachment managers will have to demonstrate the following: Trump made his request to Ukrainian President Volodymyr Zelensky with intent to corrupt the 2020 U.S. election; foreign aid or a White House meeting were conditional on compliance (the quid pro quo); and as a result, the United States was damaged.

Not only must the House managers prove all these elements, but they must do so by “clear and convincing evidence.”

House Judiciary Committee Chair Jerry Nadler (D-N.Y.) has said that persuading a jury of these allegations would be a slam dunk. Although Nadler is a lawyer, his comment highlights his lack of significant legal experience—or, indeed, of any significant real-world experience outside politics. Based on what we have seen so far, the House managers will have their work cut out for them.

For example, Trump can point out that it’s common for the United States to insist that nations receiving foreign aid and other perks take measures against corruption. He might add that the Bidens aren’t above the law, even if one of them wants to be the Democratic presidential nominee.

Moreover, as of now, there’s slender direct evidence of a quid pro quo: Much of the congressional quid pro quo testimony derived ultimately from EU Ambassador Gordon Sondland. But in the three-page written addition to his testimony, Sondland said explicitly that he only assumed there was a quid pro quo. “I did not know (and still do not know),” he added, “when, why, or by whom the aid was suspended.”

Proving damage is another hurdle. Did it damage U.S. security or the U.S. electoral process to ask the Ukrainians to investigate whether the Bidens were corrupt? You could argue the issue either way. For me personally, if a major contender for the presidency is corrupt, I want to know about it before the election, and I don’t care if I get the truth from Americans or Ukrainians.

But a more important point is that this isn’t a traditional impeachment self-dealing case. In self-dealing cases, the damage is usually incontestable—generally because the official appropriated public assets for personal use. In this case, however, whether the country was damaged is very much a matter of opinion.

You have to wonder whether those who drafted the articles understand the weaknesses in their case. Perhaps they do—but recognizing that impeachment is doomed, they are merely “taking a dive.”

A portion of Article I highlights this question. It states that Trump solicited a Ukrainian investigation in service of “a discredited theory … alleging that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election.”

But that statement is provably false. First, it’s false because neither Trump nor any other informed person denies that Russia tried to meddle in the 2016 election. Second, it’s false because the theory isn’t “discredited.” On the contrary, the evidence is clear that at least some elements of the Ukrainian government were working against Trump’s election. To cite a matter of public record: Three months before the election, the Ukrainian ambassador to the United States wrote an op-ed attacking Trump.

This false passage was entirely unnecessary to the allegations of Article I. So why was it included? Was it because the drafters didn’t know what they were doing? Or was it because they understood that impeachment is going nowhere, so they might as well toss red meat to their howling political and media base?

Unfortunately for them, though, these articles of impeachment aren’t so much red meat as very thin gruel.

Rob Natelson, a former constitutional law professor, practiced law for a decade before entering academia. He is senior fellow in Constitutional Jurisprudence at the Independence Institute in Denver.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.