Lawlessness

A longer than usual post from political scientist Jonathan Bernstein, writing at Bloomberg. It was published yesterday morning at 7.00 a.m.:

Title: The Unspoken Charge That Should Doom Trump: Lawlessness

Subtitle: Senators are entitled to render their judgment based on more than the specific impeachment case that the House put before them.

For three days, the House managers serving as prosecutors in the Senate impeachment trial of President Donald Trump set out the details of his effort to strong-arm Ukraine into aiding his 2020 re-election, and then argued that those details constitute reason to remove him from office. They made a strong case. Using the power of the presidency to push a foreign power to smear a political opponent is an abuse of that power, a “high crime and misdemeanor” in the constitutional phrase setting forth the standard for removal.

What of the case made by law professor Josh Blackman in the New York Times on Thursday: that presidents often pursue policies in hopes of improving their political prospects? It is true, of course, that presidents consider domestic politics, including electoral politics, in everything they do. There’s nothing wrong with that. Presidents should act to increase their influence, and that includes taking actions with their professional reputation and personal popularity in mind.

So what’s different about Ukraine?

For one thing, as Representative Adam Schiff and the other House managers explained, Trump’s actions weren’t taken with politics as one consideration. They were taken, as Schiff said, with electoral concerns as the primary goal.

But that’s not enough to make it impeachable. Trump ordered a hold on congressionally approved military aid to Ukraine last summer, according to high-ranking officials who testified in the House impeachment investigation, as the president and his allies were ratcheting up the pressure on the Ukrainian government to announce a criminal investigation of a leading Democratic presidential candidate, former Vice President Joe Biden, along with another investigation into a bizarre, evidence-free theory about Ukraine and the 2016 election.

The aid freeze wasn’t part of a legitimate reconsideration of U.S. policy towards Ukraine, which Trump would have been free to initiate. Instead, it was an effort to undermine the consensus plan to support Ukraine as he squeezed that country’s government to help him get re-elected. The president certainly has the right to change his policies and to work to get the rest of the government to go along. It’s much less legitimate to attempt to subvert the official policy. And given that it appears the freeze on aid to Ukraine was illegal, Trump’s scheme wasn’t legitimate at all.

Blackman’s analysis is also wrong because it matters how a president uses policy for political advantage. Trump is accused of soliciting foreign election interference! Unlike maneuvering to get a Supreme Court justice to resign, or even deploying troops, Trump tried to get a foreign nation to influence an election. That’s not just a likely violation of U.S. law; it’s contrary to his oath to “preserve, protect and defend the Constitution of the United States.”

So: Could a president legitimately base Cuba policy in part to win the support of a key group of voters in a swing state? Absolutely. Even if national security experts think the resulting policy would be a bad one. But could a president base Ukraine policy on whether or not the Ukrainian government gets involved in U.S. domestic politics? No. Because that involves something which is itself both illegal and a violation of the president’s oath of office. It is, indeed, an abuse of power — the use of his formal powers to do something illegal and unconstitutional.

The truth is, however, that for all of the strength of the House managers’ case, what really clinches it is something they didn’t say, and which isn’t part of the two articles of impeachment that the Senate is considering: Trump’s overall lawlessness.

The articles make only a glancing mention of Trump’s obstruction of justice, as laid out in Special Counsel Robert Mueller’s report on Russian interference in the 2016 election. They don’t say that Trump is probably violating the Constitution’s emoluments clauses when foreign and domestic governments spend money at his hotels and resorts. They say nothing about his threats against the media or his threats to prosecute political opponents. If impeachment was purely a legal matter, those things would therefore be irrelevant and jurors would be directed to ignore them.

Impeachment isn’t a judicial procedure. U.S. senators are not mere jurors. Impeachment and removal or acquittal is a political act, even when expressed in judicial language. I don’t mean “political” here only in terms of elections and ordinary partisanship, although those are necessarily part of it, but as the broader idea of politics as the way a polity collectively governs itself. As political scientist Julia Azari has written: “There is no nonpartisan, apolitical mechanism to evaluate abuses of power and remove a president from office. Our Constitution places this responsibility with the people’s elected representatives (and senators, to be precise).” And that’s because the framers thought that politics at its best was very much a good thing — that neither elites who were not ultimately responsible to the people nor any kind of automatic formula was as good as purposeful self-government.

Therefore, it is appropriate that members of the House take into account what they know about the president’s fitness for office and his compliance with his oath of office when deciding whether to impeach or not. Senators can — and should — take all of that into account when deciding whether to vote to remove or acquit.

To be clear: That doesn’t mean that senators should vote based on whether they like the president or not. Nor should they vote to remove him based on ordinary policy differences, such as disagreements over taxation or abortion or gun control, or to leave him in office because they agree with his positions on such things. They should, indeed, resist their natural urge to vote based on their strongly held policy ideas.

If impeachment and conviction should not rest only on the specific articles, why bother having any specific articles of impeachment at all? One reason is that it’s traditional to do so, although note that in the case of the first presidential impeachment trial, of Andrew Johnson in 1868, the House impeached first and drew up the articles later. But it’s a good idea anyway, because it grounds the debate in specific actions. And the need for concrete articles based on particular episodes is a healthy practice in that it probably deters the House majority from simply impeaching presidents they don’t like or have merely ordinary differences with. Just as it is probably healthy that impeachment in practice has become a political procedure expressed in judicial language, by custom if not by constitutional mandate. That, too, deters removing the president merely for policy or partisan differences.

And so while Democrats did talk on the Senate floor about Trump’s threat to American democracy given his invitation to other nations to interfere with U.S. elections, they did not talk about Trump’s general lawlessness. The closest Democrats have gotten to that larger idea is to point out that Trump’s various public statements amount to claims that he will repeat this particular offense again — that he asked Russia for help during the 2016 campaign, pressured Ukraine for help in 2019, and publicly asked China for help when the Ukraine scheme went public.

But all the senators know that there is more to it than even that — that the president has repeatedly displayed his willingness to flout the law in a variety of serious ways. And they’re entitled to take that knowledge of his unfitness for office into account when deciding what to do about the two accusations before them. (This is the column in its entirety.)