The Legal Strategy Behind Keeping Impeachment Simple




 

(Bloomberg Opinion) -- The House Judiciary Committee has announced plans to consider two articles of impeachment against President Donald Trump. Because Democrats control the Committee and the House, it is now very close to a foregone conclusion that Trump will be impeached.

It's remarkable and historically significant that the committee will consider just two very focused articles of impeachment. Andrew Johnson's impeachment featured 11 articles. Richard Nixon, who managed to resign after the House Judiciary Committee approved articles of impeachment but before the House adopted them, faced three. Bill Clinton was impeached with two articles - but they contained four and seven subparts respectively, corresponding to four alleged grand jury lies and seven alleged acts of obstruction of justice.

In contrast, Trump will face charges that are extraordinarily simple and compact. The first article will allege the high crime and misdemeanor of abuse of power. It will state that Trump abused the office of the presidency for personal advantage in soliciting investigations of political opponents from the president of Ukraine in order to influence the 2020 election; and that in doing so, Trump put his personal gain ahead of the national interest.

The second article will charge Trump with obstructing Congress by flatly refusing to participate in the impeachment inquiry and by ordering the entire executive branch not to participate.

The decision by House leadership to focus in a laser-like way on these two charges is wise in light of their goals - but it wasn't at all an obvious choice. Since becoming president, Trump has committed a striking number of acts that could qualify as high crimes and misdemeanors under the Constitution. Most prominently, special counsel Robert Mueller's report provided extensive evidence that Trump obstructed justice in attempting to fire Mueller and in ordering White House counsel Donald McGahn to lie about his attempt to do so.

Yet the decision to impeach is roughly analogous to the decision a prosecutor makes to bring charges against a criminal. Prosecutors can only bring charges if they have evidence that the criminal is guilty. But even then, not every criminal act gets prosecuted - or needs to be. Prosecutors must weigh the public consequences of a prosecution. They must ask themselves whether there are mitigating factors that weigh against bringing charges even against someone they believe to be guilty. Prosecutorial discretion is a crucial component of the job of being a prosecutor.

Similarly, congressional leadership has the responsibility of exercising what we might call impeachment discretion in the case of a president. Not every constitutionally impeachable act can or should be impeached. Judgment is required.

The House leadership has exercised its impeachment discretion to focus on Trump's conduct as revealed in his now famous July 25, 2019 phone call to Ukrainian president Volodymyr Zelenskiy. The main reason is that the conduct is so blatant. To be sure, all the supporting evidence that emerged in the House hearings laid bare the details of Trump's plan to pressure Ukraine into announcing investigations into Joe and Hunter Biden and the CrowdStrike conspiracy theory. But the most important facts were already known once the rough transcript of the call was released. As I have argued, including in my testimony before the House Judiciary Committee, the call on its own provided enough evidence to justify impeachment for abuse of power.

No doubt Democrats will argue that the Ukraine-related charge demonstrates a pattern of willingness to cooperate with foreign countries in manipulating elections. But that pattern won't be at the heart of the charge. Nor should it be - because the rest of that conduct cannot be explained as simply or delineated as sharply as the Ukraine conduct.

In essence, the House leadership is wagering that simplicity will help make the public case for impeachment. And even if the Senate ultimately does not convict Trump and remove him from office, the historical record will retain that simplicity.

As for obstruction of Congress, here the simplicity captures a basic reality: no other president has ever stonewalled Congress entirely when it comes to impeachment. Even Richard Nixon, who famously withheld evidence and was therefore facing impeachment for obstruction of Congress, allowed some executive branch witnesses to testify and provided some documents to Congress.

The House leadership will have to do more work to explain the American people what is so bad about Trump's refusal to cooperate. To put it simply, the Constitution only gives one solution to the problem of presidential misconduct, which is impeachment. If a president can't be investigated by Congress in an impeachment inquiry, he is effectively above the law. Then the United States is no longer really a democracy, but something else: an elected monarchy, or a dictatorship.

Historians will look back and wonder why the charges against Trump were so compact given the range of his misconduct. The answer is that Democrats determined, not that Trump hadn't committed more impeachable acts, but that the public would be able to understand and focus on these two charges in particular. Whether that strategy works should not only be judged by the outcome in the Senate, but also by the judgment of history, and by the results of the 2020 election.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include "The Three Lives of James Madison: Genius, Partisan, President."

For more articles like this, please visit us at bloomberg.com/opinion

©2019 Bloomberg L.P.

COMMENTS

More Related News

Bolton Was Concerned That Trump Did Favors for Autocratic Leaders, Book Says
Bolton Was Concerned That Trump Did Favors for Autocratic Leaders, Book Says
  • World
  • 2020-01-28 13:16:18Z

WASHINGTON -- John Bolton, the former national security adviser, privately told Attorney General William Barr last year that he had concerns that President Donald Trump was effectively granting personal favors to the autocratic leaders of Turkey and China, according to an unpublished manuscript by Bolton.Barr responded by pointing to a pair of Justice Department investigations of companies in those countries and said he was worried that Trump had created the appearance that he had undue influence over what would typically be independent inquiries, according to the manuscript. Backing up his point, Barr mentioned conversations Trump had with the leaders, President Recep Tayyip Erdogan of...

Trump Call
Trump Call 'Less Than Perfect,' Defense Says: Impeachment Update

(Bloomberg) -- Donald Trump's defense lawyers resume their presentation at 1 p.m. Monday after opening their arguments Saturday by saying House managers failed to prove the president should be removed from office.Here are the latest developments:Trump Call 'Less Than Perfect,' Defense Says (7:45 p.m.)Former independent counsel Robert Ray said Trump's July 25 call with Ukraine's president was "less than perfect," but that doesn't mean it's an impeachable abuse of power.It would have been better for Trump to have pursued an investigation "through proper channels," said Ray, a member of Trump's legal team."While the president certainly enjoys the power to do otherwise, there is consequence...

Fox News Anchor Chris Wallace Tears Into Conservative Pundit:
Fox News Anchor Chris Wallace Tears Into Conservative Pundit: 'Get Your Facts Straight!'

Sparks flew Monday on the Fox News set between Fox News anchor Chris Wallace and conservative contributor Katie Pavlich, with Wallace demanding his colleague get her "facts straight" after Pavlich insisted that certain witnesses had not been called in the impeachment trial.Moments before President Donald Trump's defense team began its arguments in the Senate impeachment trial, Pavlich noted during Fox's pregame coverage that while Republican senators are now weighing whether to call former National Security Adviser John Bolton following his bombshell claims, the House should have presented a more thorough case."The Senate is not the House, the House did not come with a complete case, and...

Democrats demand Bolton testify after NYT report Trump directly told him Ukraine aid tied to investigations
Democrats demand Bolton testify after NYT report Trump directly told him Ukraine aid tied to investigations

President Donald Trump told John Bolton he wanted to freeze military aid to Ukraine until it investigated his Democratic rivals, a report said.

Senate should remove Trump, majority of independent voters say in Fox News poll
Senate should remove Trump, majority of independent voters say in Fox News poll

Overall, 50% of registered voters said in a Fox News poll that President Trump should be convicted and removed in the Senate; 44% said he should not.

Leave a Comment

Your email address will not be published. Required fields are marked with *

Cancel reply

Comments

Top News: Economy