Last Tuesday, House Democrats announced their impeachment charges against President Donald J. Trump. This happened after an almost two-and-a-half-month-long impeachment inquiry into the Trump-Ukraine scandal. Judiciary Committee Chairman Jerry Nadler announced during a press conference that his committee is introducing two articles on impeachment, charging the president with high crimes and misdemeanors. The first article is for abuse of powerand the second one is for obstruction of Congress. However, what is clearly missing from these charges is bribery – the entire scandal was based on the alleged improper quid-pro-quo between President Trump and Ukraine. This raises the question whether or not Democrats have anything coming close to actual criminal conduct.
The First Charge: abuse of power
During the press conference Chairman Nadler said: “It is an impeachable offense for the president to exercise the power of his public office to obtain an improper personal benefit, while ignoring or injuring the national interest.” The “improper personal benefit” is presumably a possible future announcement from the Ukraine government, stating that they have started an investigation into Democratic candidate Joe Biden. The case that has to be proven here is that this is an improper personal benefit and that President Trump did not do this because he believes it to be in the interest of the nation. The second part of this statement has led to some debate, because there is no way to interpret this phrase with any sort of limiting principle. “Ignoring the national interest” cannot be defined as an intent crime, since it does not constitute a standard of intent. This is very important for the precedent that is being set, since what is seen as in the national interest by some would not be considered so by others. It is questionable whether this part is indeed an impeachable offense.
The Second Charge: obstruction of Congress
Adam Schiff, Chairman of the House Intelligence Committee, said: “The evidence is every bit as strong that President Trump obstructed Congress fully, and without precedent, and without basis in law. If allowed to stand, it would decimate Congress’s ability to conduct oversight of this president or any president in the future, leaving this president and those who follow to be as corrupt, malfeasance, or incompetent as they would like with no prospect of discovery or accountability.” The first thing to note is that “incompetence” is not an impeachable offense, and corruption has to be proven first. Second, is the fact that no president has ever been impeached solely on obstruction of Congress. Normally, this would be linked in with the actual crime of obstruction of justice (18 U.S.C. §1503). What is the difference? If Congress wants to have a person testify, they will subpoena him/her. The person of interest has the right to refuse the subpoena (obstruction of Congress). Following the refusal to comply, Congress will try to make a case in front of a judge as to why this person needs to testify. If the judge sides with Congress and the individual is required to testify but doesn’t show up/is ordered not to show up, you have obstruction of justice. Obstruction of Congress in and of itself is not a crime. It is part of the checks and balances system on which the United States government was created.
The Missing Charge: Bribery
Democrats started the impeachment inquiry on the suspicion that President Trump committed an improper quid-pro-quo – in other words: bribery – with the Ukrainian government. The reason why democrats did not charge bribery is because there are certain elements that have to be fulfilled in order for a Federal Bribery charge to hold up. These elements – as defined under 18 U.S. Code §201– are that you need a public official, you need to be able to prove the defendant’s specific corrupt intent, and something of value offered (information has not been considered something of value in cases like this). However, after conducting multiple hearings Democrats did not find enough evidence to make this case. No witnesses testified that President Trump had the intention of bribing another country. Even among scholars of the law there is no agreement on whether the case for bribery could be made. This could be seen during the testimony of four highly respected law professors in front of the House Judiciary Committee on December 5th. Professor Pamela Karlan (Stanford Law School) said that in her opinion Congress does not need to adhere to how that crime is defined under federal law when defining bribery for purposes of impeachment. Her colleague from George Washington University, Jonathan Turley, argued against her. He said that Democrats should stick with the definition of bribery as defined in the U.S. criminal code, which the supreme court said should be defined narrowly.
According to Harvard Law School professor emeritus Alan Dershowitz neither of these proposed articles satisfies the criteria for an impeachment as expressed in the constitution. These criteria are treason, bribery, or other high crimes and misdemeanors. Dershowitz does not believe that the charges that are leveled against President Trump constitute high or even low crimes and misdemeanors. According to him both accusations are so vague and open ended that they can be applied in a partisan fashion by the majority against any president from the opposing party. According to Dershowitz this is the first time in history a party wants to impeach a president without having bipartisan support, any support in the words of the Constitution, or in the history of its adoption. Dershowitz wrote “A majority of the House is simply making it up as they go along in the process, thus placing themselves not only above the law but above the Constitution.”
After the Democrat’s press conference Monmouth polling showed good news for President Trump. The poll asked participants if Trump should be reelected to the White House and showed a seven-point swing in his favor. According to this poll Trump’s favorability rating was also higher than his Democratic opponents. It appears that the impeachment proceeding is helping the president in the key swing states. In a report published on December 8th from firehouse strategies it showed that President Trump is currently leading every Democrat in Michigan, Pennsylvania and Wisconsin. The question is whether this effect will continue until the election. House Democrats are worried about their own reelection possibilities. So far three Democratic representatives have come out saying they might not vote to impeach.
On December 13, the House Judiciary Committee approved the articles of impeachment against President Donald J. Trump, officially charging him with abuse of power and obstruction of Congress. The vote, which happened after a 14-hour long debate about the articles and possible amendments, was along party lines by a margin of 23 to 17. Originally the vote was supposed to be held the night before, but Chairman Nadler abruptly recessed the meeting after 11 p.m. It is expected that the full House of Representatives will vote on the articles next week. If they vote as expected and President Trump is officially impeached it will go to trial in the Senate. There it will be presided over by Chief Justice John Roberts and the Senators will be the jury. It will be the only matter discussed until the trial ends. President Trump and his counsellors will be allowed to bring forward any witnesses they want, and the House of Representatives will send someone to make their case. The trial will last as long as it needs to be. To have the president convicted and removed from office Democrats would need to have two-thirds of the senators vote in favor. Currently Republicans have a 53-seat majority.
It is highly unlikely that President Donald J. Trump will be removed from office under these assumptions. Meanwhile the actions of the majority in the House to impeach a president on grounds that were not mentioned in the constitutions might do considerable damage to the rule of law and the future workings of government. The feeling that this impeachment process is nothing more than a political statement from Democrats is growing. People feel like the inquiry was rushed instead of a serious investigation. It is questionable how Democrats can feel so convinced without having heard testimony from those closest to the president. Over the coming months the complete impact of these actions will become clearer.