On Impeachment, What is the Accusation and What is an Acceptable Precedent?

It is full speed ahead for House Democrats and their impeachment inquiry in the aftermath of revelation that Donald Trump allegedly sought to tie U.S. aid to Ukraine to that country opening up an investigation into alleged misconduct by former Vice President and current Democratic candidate for president Joe Biden.

Democrats are certain that Trump committed an impeachable offense, but unfortunately for them, they cannot seem to nail down a specific charge. Couple that with the dishonest doublespeak about impeachment inquiries versus proceedings and the Democrats’ case is quickly falling apart. Democrats have made a series of accusations, some more serious than others, some with more legitimacy than others, but do they raise to the threshold of high crimes and misdemeanors?

It is a basic fact of Civics 101 that a high crime or misdemeanor in the context of impeachment can mean whatever 218 members of the House of Representatives want it to mean. If House Democrats think that Trump disgraces the nation by eating pizza with a fork or putting ketchup on his steak or more seriously, such embarrassing policies such as picking a fight with Denmark over Greenland, there is nothing to say they can’t do that. The reason why the president’s eating habits or policy brain farts aren’t on the list of alleged crimes is because such pettiness would obviously come back to haunt them the next time there is a Democratic president and a Republican House.

That last point is key. Too often in this Trump versus the House saga both Trump’s biggest fans and biggest opponents have lost sight of the fact that Donald Trump will not be president forever. Whether it is people forgetting that one day someone will blow the whistle against a Democrat when they cheer Trump’s remarks where he implies that the whistleblower and anyone who assisted him, including Adam Schiff, should be executed for treason and or espionage or people on the other side coming up with vague impeachment accusations that could one day lead to revenge impeachment proceedings and other constitutional concerns such as Congressional interference in prerogatives of the executive branch.

There are therefore two questions. First, should Trump be impeached? Secondly, if the answer to the first is “yes,” then what precedent are Democrats prepared to set that will be applied to all future presidents?

In this there has been a false dichotomy formed. Trump and Friends want to say that they did nothing wrong and that anyone who says differently supports impeachment, either overtly or unwittingly by aiding the Democrats in their public messaging campaign that says that Trump did do something wrong. Democrats increasingly say that if you do not support impeachment, then you are implying that you believe that Trump did nothing wrong. This is not a correct assessment, Trump should not have brought up Joe Biden with Volodymyr Zelensky, he should not have held up aid to Ukraine, but wrong does not necessarily mean impeachment is wise.

So, let us consider the five main charges that House Democrats appear to be making from least convincing to most.

1. Obstruction

This is the latest charge Democrats are throwing at the Administration. It relies around a letter sent to Secretary of State Mike Pompeo requesting the deposition of State Department employees. Pompeo responded with a letter, where he accused Democrats of trying to “bully” career foreign service officers, laying out various concerns ranging from FSOs not being able to have legal counsel to executive privilege over diplomacy and certain classified information.

House Democrats responded to the letter, saying that if the department does not comply, it will be seen as evidence of obstruction.

This would be a terrible precedent to set. As long as there have been divided governments, there have been battles between the executive and legislative branches. If Democrats want to impeach for something as routine as a spat between the branches in which State raises perfectly legitimate concerns, then it raises the possibility of a revenge impeachment hearing the next time a Democrat is in the White House.

2. Cover Up

This is the accusation in the whistleblower complaint that says the White House stored the transcript on a super-secure server and limited the access the call’s contents. “What did they have to hide?” was the call of Trump’s critics.

This accusation didn’t last long as it was revealed that this is was a procedure put in place after previous transcripts with the leaders of Mexico and Australia where leaked to the Washington Post in 2017. The White House wanting to protect these sensitive, classified phone calls and keep them out of the hands of would-be leakers is not a crime.

Here, Congress has no case. Yes, the Democrats by virtue of winning control of the House in 2018 have the right to check and balance the executive branch and conduct oversight of the Administration, including in foreign policy through such things as the power of the purse, but checks and balances and separation of powers are not the same thing. The executive branch conducts diplomacy and these phone calls allow the president and whoever his counterpart on the other end of the line is to speak frankly with each other outside of the listening ears of the media, other foreign leaders, and yes, Congress.

For example, lost in the coverage of the Biden angle to the transcript story was the fact that both Trump and Zelensky did not exactly have nice things to say about German Chancellor Angela Merkel. That would be something Zelensky probably would have liked to keep quiet, because in public he needs to play the diplomatic game of talking nice about people he might privately want to tell to go pound sand for not doing enough to help his embattled country. Now because of the fall out to this story, Merkel knows what Zelensky really thinks of her and that might impact how she deals with him moving forward.

“But,” people say “if he said this to an ally, imagine what he said to Putin. Don’t you want to know if he made any promises to Putin that endanger national security?” If Trump’s relationship with Putin bothers you that much, if you think he is a grave threat to national security, there is an avenue for that, we call them elections. The elected president runs foreign policy, the un-elected bureaucrats implement it and carry it out, not the other way around. The president, whoever that may be, may be wrong, and Trump was wrong to hold up the aid, but arguing we need to see the Putin transcripts risks defining policy differences as high crimes or misdemeanors.

As a digression, the only reason we are having this talk about lethal aid to Ukraine as part of a Trump scandal is because Trump reversed the previous Democratic administration’s decision to only give non-lethal aid to the Ukraine, something that seems lost on Democrats and the news media. Maybe some intrepid reporter following the Biden campaign can ask if Obama was wrong to only send Ukraine such things as armored vests and night-vision goggles.

3. The Bill Barr Angle

In an attempt to show a pattern of behavior, Democrats have latched onto the idea that Trump has asked foreign governments, such as Australia, to assist Attorney General Bill Barr with the investigation surrounding the origins of the Russia probe.

It is alleged that this is just the latest example of Trump using Barr as his personal attorney and using the government to advance his own political interests. In this case, to discredit the Mueller investigation.

This is another empty charge. There is nothing unusual about asking foreign governments to help with investigations. Furthermore, proponents of this charge have created a “Heads I Win, Tails You Lose” situation. According them, the fact that Mueller laid out evidence in a DOJ investigation that presents Trump’s conduct during the 2016 Election in a negative light is proof he is unfit for office, but the fact that another DOJ investigation may paint his critics in a bad light is also proof that he’s abused power and is unfit for office.

There was nothing wrong with the Mueller investigation per se, but it is telling that the only indictments came from crimes that were either before Trump decided to run for office (Paul Manafort) or procedural crimes. Given that, not to mention, Mueller’s problematic and political “not exonerated” conclusion in what was supposed to be a legal investigation, it is perfectly legitimate to ask if the bureaucracy followed all the rules.

4. Quid Pro Quo?

The allegation that Trump threatened to cut off aid to Ukraine unless Kyiv opened up an investigation into Joe Biden is the real crux of the story. The previous three accusations are all a result of this charge. But, they are also charges that Democrats have thrown at the wall in hopes that something, anything, will stick, because the evidence of a quid pro quo looks less convincing with every passing day.

The question is what is the standard of proof do Democrats want to establish? An impeachment trial is not a criminal trial, but Constitutional tradition says that one is innocent until proven guilty and there is no definitive evidence of a quid pro quo. Sure, one can see how a vehemently anti-Trump person could say that it was implied Nice Javelin missiles you got there, be a shame if something happened to them. But while a competent prosecutor could make that case, an equally competent defense attorney could instill reasonable doubt by pointing to the references to CrowdStrike, which would fit a pattern that Trump is President Scatterbrain with the attention span of a gold fish. If Democrats want to say Trump is an evil genius, a convincing defense of Trump could be that he is neither evil nor a genius. The Idiot Defense may not be flattering for Trump, but in questions of guilt or innocence, the president should take what he can get.

Furthermore, the accusation is that Trump threatened Ukraine, but for a threat to be a threat, the other party, in this case the Ukrainians, have to be aware that they are being threatened, which apparently they were not.

5. Abuse of Power

This is the most legitimate case Democrats have. It’s also the most vague.

According to this argument, advanced by those such as Speaker Nancy Pelosi, there does not need to be evidence of a quid pro quo, the very fact that Trump even brought up Joe Biden at all in his phone call with Zelensky is an impeachable offense.

This is a problem for Trump because the optics of asking a foreign leader to look into someone, quid pro quo or no quid pro quo, who may be your opponent in a few months are terrible. It is also something would have screamed bloody murder over if a Democratic president, past or future, decided to look into alleged corruption at various Trump Hotel locations around the world. But that is also why this is such a slippery slope for Democrats.

Abuse of power, in a political context is loosely defined and such vagueness could come back to haunt Democrats in the future. Democrats like to say that Trump’s foreign policy is what it is because of his personal business interests. Let’s say that Joe Biden, Elizabeth Warren, or pick your favorite Democrat wins next year and they urge foreign leaders to work with Attorney General Generic Democrat to see if there was any misconduct there, would Democrats call for impeachment then?

But it doesn’t even need to go that far. Abuse of power is so open to interruption that those alleging it often use the “You know it when you see it” argument. That could apply to almost any scandal or controversy ever and no president can escape controversy.

If Democrats impeach Trump for abuse of power, then they forfeit their right to complain when a Republican House impeaches a Democrat for the same vague charge. Republicans could have impeached Bill Clinton for abuse of power, but that article was voted down by a wide margin at 285–148.

Democrats have two choices to make. While the headlines focus on the more click-generating question of whether they impeach Trump or not, the more important question Democrats need to be asking is that if they decide to move from an inquiry to a formal proceeding, what precedent are they prepared to apply to all future presidents.