Impeachment is a highly political process. I want to walk through the impeachment process and trial and try to articulate my own thinking.
The Transcript
Let’s start with the phone call on July 26th. Trump released a transcript of himself asking the head of state of another country to investigate a conspiracy theory that Ukraine has a copy of a server of Hilary Clinton’s emails. The intelligence community believes this is Russian propaganda and National Security Council official Fiona Hill testified to this under oath. Trump also brought up a political rival during an official call with the head of state of another country, and asked President Zelensky to investigate them.
There’s a lot to discuss here. Apart from the intelligence community’s views of the Ukrainian server conspiracy theory, I think it reflects poorly on Trump’s…mental state? priorities? that he is still trying to investigate theories around Hillary Clinton’s emails four years after his own election, which he won! It doesn’t seem like he is prioritizing implementation of American policy, but rather stuck in the irrelevant past.
Also of note, Trump brings up Viktor Shokin, who, as far as I can tell was widely believed to be corrupt, yet Trump seems to think his dismissal was unfair. There’s also the discussion of Hunter Biden, Joe Biden’s son. Hunter seems to be a screw up and a bad human being. Yet, as Senator Romney pointed out, there was no evidence that the Bidens’ actions were criminal although certainly morally questionable. In particular, Joe Biden had a conflict of interest, but I don’t think anyone can argue Viktor Shokin should have remained in office…except Trump.
Moreover, it doesn’t seem to be a matter of national security or indeed foreign policy that Joe Biden be investigated by the Ukrainian government even if he were directly implicated in a crime. Instead, I would expect the FBI would just investigate him for wrongdoing. That seems much more effective if you wanted to get to the bottom of it. Moreover, looking at the testimony presented by Trump’s defense, it doesn’t seem like a crime was committed.
Yes, when making a public announcement about Ukrainian prosecutors, the Vice President should acknowledge all conflicts of interest. He didn’t, and that seems bad. While it isn’t a violation of a particular law (the respective law would have to be pretty specific), it reflects pretty poorly. In fact, there are many parallels to Trump’s actions. I’d go so far as to say that it’s inconsistent for one to believe that Joe Biden’s actions are wrong while saying Trump’s are not. They are almost identical.
Both are accused of undertaking policy decisions that they claim are in the national interest while appearing to have personal conflicts. The differences are that (1) Trump is currently in office, while Biden is not, and (2) the House of Representatives seems like the correct place to investigate whether Trump had a conflict of interest, while the Ukrainian government absolutely should not be in charge of investigating Biden. And it definitely shouldn’t be incentivized with U.S. taxpayer funded military aid; it should be done by a law enforcement agency. Finally, I would be remiss not to mention that Trump has an even closer parallel with the Hunter Biden situation: his own children, in particular his son-in-law who was given a prominent position in the west wing. If Hunter Biden’s actions in Ukraine are worth using the office of presidency in such a way, what are we to make of Trump’s own nepotism?
Returning to the call, the Trump defense team pointed out that no quid pro quo was mentioned in this phone call. This is true, and also seems irrelevant. The use of the office of the president to encourage foreign governments to investigate political rivals and conspiracy theories is most certainly an abuse of office, regardless of whether a quid pro quo occurred. Whether this is grounds for removal from office we can address later.
Witnesses and Evidence
More circumstantial evidence for this being a political abuse of office include testimony from several witnesses. Most interesting is from Gordon Sondland who stated that a quid pro quo did exist offering the President of Ukraine a White House visit in exchange for an announcement of investigations into the Bidens. He also stated that John Bolton, Mike Pompeo, and Mike Pence were all aware.
Although not a witness, Mick Mulvaney gave a press conference confirming that military aid authorized by Congress was held up in order to get Ukraine to investigate the DNC server.
Also of note is that the White House released the aid to Ukraine on September 11, only days after Congress announces an inquiry into Rudy Giuliani’s involvement in Ukraine and possible interference with US policy. No one has made any attempt to explain what particular evidence of the Ukrainian government fighting corruption came to light on that day which made the White House approve the aid.
Finally, the House asked (not subpoenaed) John Bolton to testify which could have turned the circumstantial evidence into specific testimony against Trump, at least according to the testimony of Gordon Sondland. The Trump administration blocked those witnesses from testifying, citing executive privilege. The Constitution gives the House the sole power of impeachment, not the executive the power to overrule their investigation. The House could definitely have taken this to the courts with an official subpoena, but they decided not to, I suspect because they felt that impeachment was somewhat politically toxic given the President’s support in the Senate. That’s a political calculation. I think the political case against Trump would have been stronger if both the House and the courts sided against the President. They decided not to the and I think the case against Trump for obstruction was weaker because of this procedural choice. Nonetheless, I can’t see any legal argument that would side with the President; if so, the House’s impeachment power is useless. Therefore, the obstruction of Congress charge certainly seems appropriate.
However, I need to take the Democrats down a peg; the stated reason for not taking the subpoena to court was that Trump presented an immediate threat to our democracy because of his election interference attempts. Democratic impeachment managers argued Russia had interfered in the 2016 election and Trump had encouraged this. I find this completely unconvincing. Russia favored a Trump victory over Hilary Clinton, and I’m sure they spent a bunch of money trying to achieve this, but I have never bought into the narrative that Russia can control the outcome of U.S. elections through Facebook ads. It’s ludicrous. Democracy is powerful because it utilizes disparate information from voters; if you think voters have to be shielded from information, even misinformation, then you don’t believe democracy is a force for good in the world. You instead prefer some sort of government where gatekeepers determine what information voters receive and then voters are allowed to vote with that limited information.
Trump’s attempts to use the Ukrainian government to help him win reelection seem to be an abuse of office. But I don’t think he is a threat to a fair election. The biggest threat to a fair election is our entire electoral system.
Senate Trial
Trump maintained that the impeachment inquiry was a “witch hunt” and a “hoax”. Under this view, it’s not surprising that he opposed John Bolton testifying at his Senate trial. Of course, the President’s claims do not address the significant (although circumstantial) evidence gathered against him. Moreover, Bolton supposedly implicates Trump in his new book. The only real explanations for the President’s behavior is either that there was a vast conspiracy, including many witnesses, his own handpicked ambassador to the EU and massive donor Gordon Sondlond, his own handpicked National Security Adviser John Bolton, his own handpicked Chief of Staff Mick Mulvaney, and presumably his own Secretary of State Mike Pompeo (although he wasn’t asked to testify). Or, Trump is guilty of doing some pretty shady stuff that he doesn’t want people to testify to. The President maintained that it is the first scenario. This seems to be quite unlikely given the circumstantial evidence.
But there’s an easy way to check, just have the Senate ask Bolton to testify. Senate Republicans declined to do this. I have a hard time explaining this in a good faith way. Some maintained that the evidence presented by the prosecution was inadequate. Unless Gordon Sondlond and Mick Mulvaney just spontaneously made up the same story despite being integral parts of the Trump’s administration, this seems hard to believe. John Bolton is a well-respected lifelong Republican, serving in the Bush and Trump White Houses. He is a strong opponent of the Obama backed nuclear deal with Iran, a defining Republican foreign policy position in the last election. Any attempt to say Bolton is a left-wing sympathizer is bizarre, and yet virtually no Republicans voted to hear his testimony.
I believe what is actually happening is that there is significant political pressure from Republican voters to end the impeachment process. Even if a Republican Senator believed Trump to be guilty, to stay in office, they must survive a primary challenge from a pro-Trump challenger, which would surely win in a Republican primary against someone who voted against Trump in impeachment. One could easily argue that the Senators are doing the democratic thing by following their voters’ interests, but it would not mean that Trump was innocent of these charges. It would simply shift blame from the Senators to our current democratic system, which is apparently unable to deal with a president who abuses the powers of his office.
Other senators, like Lamar Alexander of Tennessee stated that the prosecution made a compelling case of misbehavior, but that it doesn’t rise to the level of impeachment. We will get to this defense in a minute.
Non Defense Arguments
It’s worth taking a minute to discuss some points I have heard often, but are not actual defenses of President Trump. The first is the critique of hypocrisy, which is pretty common in these partisan times. Hypocrisy is an excellent way to impugn the motives of your political opponents, but it doesn’t address the object-level arguments. The way I’ve heard this phrased is that presidents have been expanding executive authority for decades, and now Democrats are only calling out Trump’s abuses of power because they don’t like his tribal affiliation, which is more than the usual Right-Left divide. In other words, Trump is a jerk to his political enemies and that’s the reason the House impeached him. Reason Editor Nick Gillespie has espoused something like this view, and tied it in with a libertarian point which is that Democrats don’t actually care about executive authority, they just don’t like Trump. This is a double standard other presidents have not been held to.
Closely tied with this critique is that House Democrats have wanted to impeach Trump from the beginning and were just waiting for a chance they could exploit. Note, neither of these related points address whether Trump actually abused his office. I think it’s absolutely true that Democrats have wanted to impeach Trump, but that doesn’t have any bearing on whether or not he did bad enough acts that he should be removed from office. This argument would be equivalent to Al Copone’s lawyers arguing that the prosecution had been wanting to catch him for a long time and so it’s irrelevant that he broke the law. This is not an argument. The only thing that matters is what Trump did, and the evidence isn’t good.
Returning to the abuse of executive power, I fail to see how continued abuse and concentration of executive authority over time means we should continue allowing abuse of authority. This view basically says that if one government official gets away with abuse, then we have no standing to ever challenge their successors abuses again. This makes no sense to me.
I’ve written pretty extensively about the problem with increased executive authority that’s accrued to the president. A thousand wrongs don’t make the next wrong a right. Instead, trying to restore some of the rule of law one piece at a time sounds like a good idea. And we should be using this opportunity to recruit more who didn’t use to care about executive authority into the tent.
Allowing unchecked executive power to own the libs is a dumb strategy.
Finally, there’s a lot of talk about the whistleblower who wrote a letter that helped to start this investigation. According to Republicans, this whistleblower was a partisan who didn’t like Trump. I have to admit, I have no idea how this argument is supposed to work or how it could possibly be relevant, but it seems so common, I have to include it. However the House finds out about presidential abuse, they have the sole authority of impeachment, meaning they can call witnesses and investigate wrongdoing. They’ve done so, and the witnesses have implicated Trump in abusing his office. The whistleblower’s testimony isn’t necessary. Why Rand Paul keeps talking about the whistleblower seems to just be a distraction from the evidence of Trumps wrongdoing.
Defenses
To summarize, apparently Trump sent his personal lawyer to Ukraine with intention to dig up dirt on his political opponent and even met with Ukrainian officials to achieve this end. Trump then used his office and capacity as president to directly bring up his political goals with the Ukrainian president on an official call. Witnesses and Mick Mulvaney say that military aid and a White House visit were conditioned on investigations into a discredited conspiracy theory about the DNC servers (which are not a matter of national security) and also an investigation of his political rival’s son from several years ago (also doesn’t seem to be a matter of massive national security importance).
This seems pretty bad.
I have a low tolerance of abuse of power. I think Obama was horrendous in his abuse of the office of the presidency including when the IRS targeted conservative groups, and when the administration targeted journalists with the Espionage Act. I think these could pretty easily be classified as impeachable. In that light, I don’t see how the evidence against Trump is much different.
We’ve already covered how the disinterest in the Senate on hearing from John Bolton is pretty suspect. But let’s talk about the actual defenses given by the president’s legal team. There are quite a few.
Some seem pretty specific and weak; Ukrainian President Zelensky said he was not pressured to investigate the Bidens or Crowdstrike. Of course, if your entire presidency is based on opposing Russia and you need U.S. help to maintain that stance, and the Senate is entirely controlled by Republicans, why would you risk antagonizing Trump who viciously attacks his own officials if they ever cross him (see Jeff Sessions, Gordon Sondlond was fired). If Trump was removed, it’s certain that Zelensky could quickly make friends with any future Democratic president regardless of his current positions, and so it makes sense that he would offer to support Trump publicly. This public position seems to count for little compared to actual testimony of American witnesses under oath.
More interesting I think was the argument that there could be no impeachment without a statutory crime. This could be promising, but as Ilya Somin at The Volokh Conspiracy points out, holding up Congressionally approved funds is a violation of federal law. Moreover, if you had to pass a law specifying every possible way that the president should be constrained then we would have no limits on the presidency.
Returning now to Senator Lamar Alexander, who argued against subpoenaing John Bolton by saying the President acted inappropriately but his actions didn’t rise to the level of impeachment. Supposing what the President did was not impeachable, why would this preclude getting more information from a witness? Senator Alexander didn’t know the extent of Trump’s actions prior to the House investigation and the testimony of witnesses. He says Trump’s actions were inappropriate, then it would seem judicious to get additional information to make sure no further wrongdoing had occurred. The Senator’s position is completely incoherent. Moreover, his beliefs about the world don’t explain what we see happening: Gordon Sondland was fired from his position as ambassador to the EU. If Alexander is correct and Trump did some things wrong but nothing impeachable, why was Sondland fired?
Trump maintains everything was a vast conspiracy. I’ve noted before, this is bizarre and would mean that everyone Trump happens to hand-select for prominent positions in his administration turned on him with the exact same beliefs about how his administration operates, supported by tons of circumstantial evidence, including Trump’s own phone calls. However, if you wanted to maintain such a narrative, you’d fire everyone who was in on this conspiracy, including Gordon Sondland, who testified to the existence of a quid pro. Of course, you might also act this way if you were actually guilty of abusing your office. Perhaps only John Bolton could have told us the difference. One thing that does not explain this evidence is Senator Alexander’s position: “Trump did things but they weren’t that bad”. If so, why purge the administration? If the actions revealed by Sondland weren’t a big deal (and honestly I kind of thought Sondland thought this) then what did he do wrong from Trump’s perspective? I don’t think Senator Alexander can explain this, and thus I think his position makes little internal sense.
Moreover, I think he’s wrong on the object level as well. The actions undertaken by Trump are serious. He held up Congressionally authorized aid for personal political reasons. Separation of powers is a vital part of our limited government. If the executive can simply kidnap funds authorized by Congress, then we have no limits on government power. We are no longer a limited Republic where the rights of individuals and the minority are defended against an overzealous majority. Instead we are simply electing a despot every four years who will terrorize his political enemies. If what Trump did was an acceptable use of the office of the president, can the president just deny funding for things until people do his political bidding? Could Obama have denied highway funding to red states until they agreed to drop lawsuits against Obamacare? Could he have held up funds until Congress authorized his strikes in Libya? If Trump could do the same for Ukrainian aid, I’m not sure what the difference is, or how any of this could be called limited government or separation of powers.
Finally, there is the argument that this matter should be left to the voters. It is, by definition, a very democratic argument. Clearly, of course, such an argument could not always make intuitive sense; if a president decided that he had the power to cancel elections and declare himself permanent dictator, then the voters can no longer give any input. This is the tact the Democratic impeachment managers took. I’ve already stated my skepticism about it.
However, we do not have to go there; the Constitution doesn’t indicate that impeachment can only be used if the president endangers elections. Instead it states that he can be impeached for treason and other high crimes and misdemeanors. It is clear that Congress can remove a president who misbehaves, not just about election endangerment. And this makes sense; the separation of powers in our Constitution means that both the president and Congress can claim separate democratic mandates, even conflicting ones. The president isn’t elected dictator for four years, but given limited powers and told to work in conjunction with Congress to exercise authority. If the president misuses that power, it’s clear Congress has the authority to remove him, even in an election year. To believe otherwise is to believe that there are no limits on presidential authority.
Conclusion
It seems clear to me that congressional Republicans are backing Trump due to political expediency rather than the facts as they appear. Yes, it’s true, we don’t have much in the way of direct testimony of what Trump knew and when. But we have ample circumstantial evidence to warrant taking a closer look. Republicans failed to do so, declining to hear from literal Republican heroes like John Bolton and Mick Mulvaney. I understand the reality of their politics but I don’t understand why Republican voters aren’t concerned about the massive power abuses going on in the White House and what that could mean when the other party gets into power. I’ve searched hard for another explanation for the current state of affairs, even looking at Trump’s own defense team, and I found them entirely unconvincing.