Four Tests for Impeachment
By RAMESH PONNURU
December 19, 2019 11:23 AM
President Donald Trump looks on during a campaign rally in Battle Creek, Mich., December 18, 2019. (Leah Millis/Reuters)
And how the president meets them
Advocates of a president’s removal from office by Congress should have to climb over four walls to reach their objective. First, they should have to show that the facts they allege are true. Second, they should show that the fact pattern amounts to an abuse of power or dereliction of duty by the president. Third, they should show that this abuse or dereliction is impeachable. And fourth, they should show that it is prudent for Congress to remove the president for this impeachable offense: that it would produce more good than evil.
If the advocates can scale all four walls, then a majority of the House and a supermajority of the Senate ought to remove the president. If any of the obstacles proves insurmountable, the president should be allowed to serve out his term in office. In the current controversy over President Trump’s conduct toward Ukraine, it just so happens that each successive wall is higher than the previous one.
Start with the first and shortest to scale. Did President Trump try to use federal policy toward Ukraine to get it to announce an investigation into Joe Biden and his son Hunter? It is pretty clear that he did, and Republican allies of Trump have put very little effort into denying it. The Trump administration itself released a memorandum summarizing Trump’s July 25 phone call with Ukrainian president Volodymyr Zelensky, and it showed that when Zelensky asked about military aid, Trump responded by saying he wanted “a favor.” He then asked for assistance in looking into alleged Ukrainian participation in the hacking of Americans during the 2016 campaign and in investigating alleged Biden corruption.
On October 3, Trump was asked to clarify what he had wanted the Ukrainian government to do. “They’d start a major investigation into the Bidens,” he answered. Representative Debbie Lesko (R., Ariz.) nonetheless told a CNN reporter on December 13 that Trump had not asked “a foreign power to investigate a political rival.” Her office later “clarified” that she meant to deny only that Trump had wanted the investigation because Biden is a political rival. The fact that they both want to be president in 2021 was, on her view, just a coincidence.
Take the clarification seriously, and what Representative Lesko was trying to do was to defend that second wall. Sure, the president sought an investigation of Biden, but only as a means of making sure that U.S. aid was not going to a corrupt state. Senator John Kennedy (R., La.) has said that the possibility that Trump was concerned about corruption means that he cannot be proved to have had a corrupt intent.
The argument requires a willful suspension of disbelief. Gordon Sondland, the Trump-appointed ambassador to the European Union, has testified that Trump “didn’t want to hear about” Ukrainian efforts against corruption and that concerns over corruption had not led to the withholding of aid from any other country within his portfolio. The Department of Defense had certified that Ukraine was taking steps against corruption before the administration withheld aid to it.
Fighting corruption would not have required Trump to encourage Zelensky to work with Rudolph Giuliani, Trump’s personal lawyer, who has said that he was working in Ukraine to advance his client’s personal interests; it would have counseled against Trump’s doing that. Nor would the effort have required the secrecy with which it was conducted, or have required dropping around the same time it was starting to attract publicity. Kurt Volker, Trump’s envoy to Ukraine, has testified that Giuliani said that official Ukrainian statements against corruption were insufficient unless they specifically mentioned the investigations touching on the Bidens and on the 2016 campaign.
There is essentially no evidence that either investigation is worth conducting. The theory that Joe Biden acted corruptly holds that he leaned on the Ukrainian government to fire a prosecutor who was looking into a company that had his son on the board. That prosecutor’s former deputy has said that there was no active investigation, and the Obama administration was on record urging the prosecutor to assist a British legal action against the company’s owner.
Madison also said, though, that impeachment is the constitutional protection against a president who would abuse his power to pardon criminals, and that it was an appropriate remedy for “wanton removal of meritorious officers” by the president. The Constitution says Congress may impeach federal officials for bribery, treason, and “other high crimes and misdemeanors.” It is reasonable to conclude that only serious wrongs, equivalent in gravity to the first two categories, belong in the third one. We have no warrant for concluding that only violations of statutes qualify. Congress has impeached many officials for misconduct not involving statutory crimes, and included non-crimes in its efforts to impeach Presidents Andrew Johnson, Richard Nixon, and Clinton.
92
Whether Trump should be removed from office over the objections of nearly half the country is not an important question. He can’t be. There are better questions. Would it be good for the country if a large majority of Americans were to be persuaded that it is unacceptable for a president to use his office to encourage foreign governments to investigate his political opponents? Assuming that the necessary level of support to remove a president from office for that offense will not be reached, should we prefer that more elected officials go on record that it is unacceptable — or that fewer do?
If you have read this far, you know my answer to these questions. The Constitution provides for impeachment and removal to protect us from officials, including presidents, who are unable or unwilling to distinguish between the common good that government is supposed to serve and their own narrow interests. Though he has done some good things in office, Trump is just such a president. Congress should act accordingly.
By RAMESH PONNURU
December 19, 2019 11:23 AM
President Donald Trump looks on during a campaign rally in Battle Creek, Mich., December 18, 2019. (Leah Millis/Reuters)
And how the president meets them
Advocates of a president’s removal from office by Congress should have to climb over four walls to reach their objective. First, they should have to show that the facts they allege are true. Second, they should show that the fact pattern amounts to an abuse of power or dereliction of duty by the president. Third, they should show that this abuse or dereliction is impeachable. And fourth, they should show that it is prudent for Congress to remove the president for this impeachable offense: that it would produce more good than evil.
If the advocates can scale all four walls, then a majority of the House and a supermajority of the Senate ought to remove the president. If any of the obstacles proves insurmountable, the president should be allowed to serve out his term in office. In the current controversy over President Trump’s conduct toward Ukraine, it just so happens that each successive wall is higher than the previous one.
Start with the first and shortest to scale. Did President Trump try to use federal policy toward Ukraine to get it to announce an investigation into Joe Biden and his son Hunter? It is pretty clear that he did, and Republican allies of Trump have put very little effort into denying it. The Trump administration itself released a memorandum summarizing Trump’s July 25 phone call with Ukrainian president Volodymyr Zelensky, and it showed that when Zelensky asked about military aid, Trump responded by saying he wanted “a favor.” He then asked for assistance in looking into alleged Ukrainian participation in the hacking of Americans during the 2016 campaign and in investigating alleged Biden corruption.
On October 3, Trump was asked to clarify what he had wanted the Ukrainian government to do. “They’d start a major investigation into the Bidens,” he answered. Representative Debbie Lesko (R., Ariz.) nonetheless told a CNN reporter on December 13 that Trump had not asked “a foreign power to investigate a political rival.” Her office later “clarified” that she meant to deny only that Trump had wanted the investigation because Biden is a political rival. The fact that they both want to be president in 2021 was, on her view, just a coincidence.
Take the clarification seriously, and what Representative Lesko was trying to do was to defend that second wall. Sure, the president sought an investigation of Biden, but only as a means of making sure that U.S. aid was not going to a corrupt state. Senator John Kennedy (R., La.) has said that the possibility that Trump was concerned about corruption means that he cannot be proved to have had a corrupt intent.
The argument requires a willful suspension of disbelief. Gordon Sondland, the Trump-appointed ambassador to the European Union, has testified that Trump “didn’t want to hear about” Ukrainian efforts against corruption and that concerns over corruption had not led to the withholding of aid from any other country within his portfolio. The Department of Defense had certified that Ukraine was taking steps against corruption before the administration withheld aid to it.
Fighting corruption would not have required Trump to encourage Zelensky to work with Rudolph Giuliani, Trump’s personal lawyer, who has said that he was working in Ukraine to advance his client’s personal interests; it would have counseled against Trump’s doing that. Nor would the effort have required the secrecy with which it was conducted, or have required dropping around the same time it was starting to attract publicity. Kurt Volker, Trump’s envoy to Ukraine, has testified that Giuliani said that official Ukrainian statements against corruption were insufficient unless they specifically mentioned the investigations touching on the Bidens and on the 2016 campaign.
There is essentially no evidence that either investigation is worth conducting. The theory that Joe Biden acted corruptly holds that he leaned on the Ukrainian government to fire a prosecutor who was looking into a company that had his son on the board. That prosecutor’s former deputy has said that there was no active investigation, and the Obama administration was on record urging the prosecutor to assist a British legal action against the company’s owner.
Madison also said, though, that impeachment is the constitutional protection against a president who would abuse his power to pardon criminals, and that it was an appropriate remedy for “wanton removal of meritorious officers” by the president. The Constitution says Congress may impeach federal officials for bribery, treason, and “other high crimes and misdemeanors.” It is reasonable to conclude that only serious wrongs, equivalent in gravity to the first two categories, belong in the third one. We have no warrant for concluding that only violations of statutes qualify. Congress has impeached many officials for misconduct not involving statutory crimes, and included non-crimes in its efforts to impeach Presidents Andrew Johnson, Richard Nixon, and Clinton.
92
Whether Trump should be removed from office over the objections of nearly half the country is not an important question. He can’t be. There are better questions. Would it be good for the country if a large majority of Americans were to be persuaded that it is unacceptable for a president to use his office to encourage foreign governments to investigate his political opponents? Assuming that the necessary level of support to remove a president from office for that offense will not be reached, should we prefer that more elected officials go on record that it is unacceptable — or that fewer do?
If you have read this far, you know my answer to these questions. The Constitution provides for impeachment and removal to protect us from officials, including presidents, who are unable or unwilling to distinguish between the common good that government is supposed to serve and their own narrow interests. Though he has done some good things in office, Trump is just such a president. Congress should act accordingly.
