This past Friday the House Judiciary Committee voted along party lines to send two articles of impeachment to the full House for a vote. The debate over whether or not the President is guilty of obstruction of Congress and abuse of power will take place this week with a possible vote occurring as soon as next Wednesday. If the House majority votes in favor of either of the charges the President will be impeached. The case will then proceed to the Senate for a trial. If two-thirds of the Senate approves the charges the President will be removed from office.
Let’s focus on the two articles of impeachment and see what they’re all about.
First, you have obstruction of Congress. The Democrats are accusing the President of failing to co-operate with the House investigation. Trump has insisted all along that the impeachment process is a “witch hunt, sham, and hoax.” Because he feels that he would not receive a fair trial in the House, he chose not to participate in their hearings and said he would have a better chance of defending himself in the Senate. It should be noted that the President is not obligated by law to participate in the House’s hearings. It’s tantamount to pleading the fifth until it’s time to go to court. The only time the President is obliged to participate is during the Senate trial where the proceedings are being held in front of the Supreme Court Chief Justice.
Second, you have abuse of power. Democrats are accusing Trump of withholding nearly $400 million in foreign aid to Ukraine. The Congressionally approved funds were temporarily blocked from being disbursed over the summer. Democrats claim Trump was leveraging the money as a way to force Ukraine to investigate the Biden family and Burisma oil company. Trump insists it was to look for possible corruption during the 2016 election. Democrats believe this was done to dig up dirt on his 2020 political opponent. They also believe he was using the release of funds in exchange for an investigation with the caveat of a future meeting in the White House between the two Presidents.
That’s what this is all about. If you are like many you heard about the impeachment hearings and may have tried to watch it. Unless you were forced to watch the House members argue back and forth I don’t see how anyone found the time or interest to do so. The debate session before the actual vote on Friday lasted close to 14 hours. I don’t spend that much time at work! I can’t imagine sitting in a courtroom or watching politicians talk at each other instead of with each other for that amount of time.
Now that we know what the President is being accused of you may ask yourself a simple question. What are the actual criminal codes the President is being charged with? I was wondering the same thing too! I did a search and read the House’s charging document. I couldn’t find a section of law listed anywhere. Since there are no criminal code violations how can the Democrats push for impeachment? I did some research and came across a recent article published by Keith Whittington on lawfareblog.com. Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He teaches and writes about American constitutional theory and development, federalism, judicial politics, and the presidency. Here is what Keith had to say on whether or not impeachable offenses must be violations of the criminal code.
Supporters of President Trump have regularly argued that there can be no impeachment without a violation of the criminal code. So long as the Mueller investigation held the possibility that the president might be linked to actual criminal activity, the question of whether impeachable offenses had to be indictable crimes was not a particularly salient one for either the administration’s critics or its defenders. Given that the House has now focused its attention specifically on the administration’s actions in regard to Ukraine, the question of whether the House could constitutionally pursue an impeachment in the absence of a violation of the criminal code has become more pressing.
Despite what Trump’s supporters say, however, the president can commit an impeachable high crime without violating the federal criminal law. To conclude otherwise would be to ignore the original meaning, purpose and history of the impeachment power; to subvert the constitutional design of a system of checks and balances; and to leave the nation unnecessarily vulnerable to abusive government officials.
Some House Democrats have framed the current impeachment inquiry in a way that implies that Trump needs to be caught red-handed having committed an ordinary crime. House Intelligence chair Adam Schiff has begun to avoid the less familiar language of “quid pro quo” and test out the more familiar language of “extortion” and “bribery.” Republicans would no doubt welcome moving the fight to that terrain, where they could attempt to demonstrate that there was not sufficient evidence to demonstrate that the president had committed any acts that would get him convicted in an ordinary court of law.
Presumably, House Democrats will eventually settle on an argument that the president has abused his office even if he has not committed an ordinary crime in the process. The president’s defenders have been busily arguing that this would not be enough to support an impeachment. Alan Dershowitz has been contending since the beginning of Trump’s presidency that the constitutional impeachment standard of “high crimes and misdemeanors” means ordinary criminal offenses. Abuse of office “is not any kind of crime,” Dershowitz argues, and the House “can’t make up crimes.” Former Acting Attorney General Matthew Whitaker has asserted that, “abuse of power is not a crime.” The conservative New York lawyer Francis Menton has insisted that, “to meet the Constitutional text, you have to have a crime.” Former Independent Counsel Kenneth Starr has emphasized that the president had exercised “poor judgment” but “that’s not a crime.” Certainly, Trump voters have embraced the mantra of “where’s the crime?”
Across its history, the U.S. House of Representatives has approved only a small number of impeachments, and yet it has not confined itself to cases involving violations of the criminal code. The House’s own practice manual concludes from the precedents that impeachable offenses consist of “misconduct incompatible with the official position of the officeholder.” Its assessment of presidential impeachments concludes that they have generally involved charges of “abusing or exceeding the law powers of the office.” Many other impeachments involved non-felonious behavior that was nonetheless judged to be “grossly incompatible with the office,” ranging from officers “appearing on the bench during the trial in a state of intoxication” or “permitting his partisan views to influence his conduct in certain trials” to committing “sexual misconduct with court employees” or preventing, obstructing or impeding the administration of justice. “Less than one-third of all the articles the House has adopted have explicitly charged the violation of a criminal statute or used the word ‘criminal’ or ‘crime’ to describe the conduct alleged.”
Trump may not have committed acts that justify his immediate removal from office, but the constitutional standard is not whether he has committed an ordinary criminal offense. To support an impeachment, there does not need to be a crime, only a high crime, and misdemeanor. A president who egregiously misuses the powers of his office or engages in conduct grossly incompatible with the dignity of his office has forfeited the right to continue to occupy his office and is subject to the constitutional judgment of the Senate acting as a court of impeachment. The House and the Senate might conclude that accusations of misconduct are ungrounded or that remedy of removal is unwarranted, but the misconduct that they might assess need not involve violations of the criminal law.
He closes his article with the following statement.
The Constitution provides a variety of tools to protect the country from a president who abuses his power. The people can remove him by election. The courts can check him by judicial decision. The legislature can counter him with the power of the purse, the power to confirm officers and the power to pass legislation. In extreme circumstances, the House and the Senate can also combine forces to prematurely end the president’s term of office through impeachment and removal. Limiting the impeachment power to cases involving criminal acts would leave the country more vulnerable to abusive government officials and encourage more abuse of government power. The men who designed the Constitution knew better than to do that. Americans should not weaken that instrument by misconstruing it.
That’s a lot to digest but it speaks to the nature of the charge. Criminal cases revolve around actual crimes. Political impeachment doesn’t need to have an actual crime committed. There just has to be the perception of someone committing high crimes and misdemeanors. In other words, someone only needs to engage in conduct that is not illegal, but more so, unethical.
Here’s a real-world example to help the current impeachment debate make sense.
Say you are married. You have been accused of cheating on your spouse. Several witnesses claim they heard from someone else that you were having an affair. Those same witnesses never actually saw you cheat on your spouse but believed you did because of what someone else told them. The only person who had an actual conversation with you about it believes you cheated as well. He never heard you confirm the cheating or witnessed it but believes it to be so because why else would you be talking to the other person on the phone.
Now translate that same scenario to Trump and Ukraine.
Of all of the so-called witnesses that were brought on by the Democrats during the House Intelligence hearings, none had direct conversations with President Trump except for one. That same person never heard Trump say explicitly that foreign aid to Ukraine was being withheld for anything other than wanting an investigation of possible past corruption to be done. Because Trump mentioned Biden, his most likely 2020 political opponent’s name several times during that call with Ukraine’s president, the witnesses and Democrats feel Trump was more concerned about receiving ‘dirt’ to use against Biden for future attack ads. This is similar to their unproven but highly promoted belief that Trump colluded with Russian’s and WikiLeaks to hack Hillary Clinton’s emails during the 2016 election. Democrats feel strongly that Trump was requesting aid from a foreign government to interfere with our future elections, therefor undermining our national security and right to a free and fair election.
Whether or not you believe Trump’s request for an investigation to be done against Biden for possible corruption was legit will help you form an opinion on impeachment. Some would argue that the nearly two-year taxpayer-funded Mueller investigation against Trump for possible corruption was entirely partisan and conducted to obtain ‘dirt’ against the Democrats 2020 political opponent. While being interviewed on MSNBC Congressman Al Green (D-TX) was famously quoted as saying, “…if we don’t impeach this president, he will get re-elected.” From the moment Trump won the 2016 election and before he was sworn into office, Democrats have been on record promoting his impeachment. After the full House has their vote, they may finally get their wish. With the history of impeachments being unfavorable to those who seek it, to that I say, be careful what you wish for.