It has been my misfortune to witness all three impeachment proceedings of the modern era. Each was, or will be, painful for the polity, but that doesn’t mean impeachment should be avoided when circumstances require a robust defense of the Constitution.
The Trump impeachment process – wherever it ultimately leads – will be better for the Constitution and the people of this country if we can remember a few basic points.
First, the impeachment is an inquiry into the conduct of the president — in particular, whether, contrary to the Constitution, he misused the power and authority vested in him to use the agency of the executive branch to pursue a personal political agenda. No other person’s conduct (see below) is relevant here, whether that conduct dates from yesterday or years ago.
Second, neither constitutional law nor history contemplates a “he did it first” defense.
Third, brazenness is not a defense to the abuse of constitutionally delegated authority.
Fourth, the redacted readout of the president’s phone call with the president of Ukraine and the whistleblower’s complaint collectively constitute a smoking gun, plain and simple. You do not need to be an expert on Brooklyn mob verbal signaling to recognize that when the president of a foreign country thanks our president for the military aid delivered in the recent past, and our president immediately responds by asking for a “favor,” which later turns out to include re-investigating a political opponent, on the grounds that what has been alleged “sounds horrible to me,” a quid pro quo for personal political gain has been clearly established.
Fifth, the new impeachment inquiry is most reminiscent of the Nixon impeachment in that both involve the abuse of the power of the executive branch to pursue personal political ends, as well as possible cover-ups. And yet, while it does not dictate where matters might end, the Trump impeachment inquiry opens with far more troubling information linked directly to the president than was true at the start of the Watergate hearings.
The information begins with the damning readout of the presidential phone call; this is first party direct evidence of the most compelling kind. It continues with the whistleblower’s complaint. This is not eyewitness reporting, but by the same token it is not hearsay; it represents a distillation of the whistleblower’s work interviewing eyewitnesses and reviewing documentary evidence, against a background of familiarity with internal Ukrainian politics. (Of course, the very purpose of impeachment hearings is to investigate and lock down the facts of the case; this is necessary here and will take time.) The whistleblower’s factual narrative closely tracks the actual readout of the phone call, and he has been described by the director of national intelligence as acting in “good faith” and having “done the right thing.” Further, the inspector general of the intelligence community concluded, based on his own independent preliminary review, that the whistleblower’s concern “appears credible.”
Sixth, the relevant facts known at the outset of the impeachment inquiry go further than the readout of the president’s call, the whistleblower’s complaint and the IG’s preliminary independent review. We also know that the ambassador to Ukraine, a career foreign service officer, was mysteriously removed from her post early in the summer. We further know that the president withheld military aid to Ukraine and obfuscated the reasons for doing so, to the confusion and consternation of the State Department, the national intelligence community and Congress. And we know that the Trump-appointed inspector general of the intelligence community was so troubled by the president’s behavior that he referred it to the Justice Department, for consideration of possible criminal violations of campaign finance laws by the president.
As the whistleblower documents show, and as the White House now concedes, we further know the president’s telephone conversation with the president of Ukraine was removed from the normal White House server where such conversations are stored and relocated to a super-secure national security server, despite there being no national security angle to the call.
This can be read as an internal White House recognition that the president’s conduct was understood to be highly problematic, at best. And we are informed by the whistleblower that two ambassadors of the United States advised the president of Ukraine on how to “navigate” the political demands of the president.
Most tellingly, the opening dossier of information – in particular, the president’s own words in his telephone call – demonstrate that the president directed the president of a foreign country to work with our president’s personal lawyer. This again undercuts any argument of a national interest at work here, and it is part of the compelling narrative that our president used his power and authority to extract a personal political favor from another country that desperately requires our assistance against an existential military threat, in the hope that doing so will damage the election prospects of a rival.
Seventh, the Constitution requires the executive branch to spend all the money properly authorized and appropriated by Congress in respect of a particular fiscal year. When the White House holds on to funds that have been properly appropriated, that by itself is an abuse of constitutional authority that might become part of a bill of impeachment.
Eighth, impeachment is a remedy that also applies to the abuse of power by individuals other than the president. The fact that the attorney general has already closed the inspector general’s criminal referral, and that he did so knowing that the readout named him as a contact person working together with the president’s personal lawyer to obtain political dirt on an opponent, raises serious questions about the attorney general’s own conduct that itself might be ripe for further examination by Congress.
Ninth, the alleged character or previous conduct of former Vice President Biden is entirely beside the point to this inquiry. No one has had the temerity to suggest that the conduct of any Biden family member in years past raises a national security concern or otherwise touches on the vital national interests of the United States in 2019. (The intelligence community’s whistleblower’s complaint goes through this at length.)
We no longer allow defendants in criminal rape trials to argue that the victim’s previous sexual conduct excuses the defendant’s violation of the victim. The same is true here. Even if the allegations against the Bidens were true, for which no reliable evidence exists (and for which exculpatory evidence does exist), that is irrelevant to the proceedings at hand. The only issue is whether the president applied the power and authority of his office to dig up dirt on an opponent.
Edward Kleinbard, a professor at the USC Gould School of Law, was chief of staff for Congress’s Joint Committee on Taxation from 2007 to 2009.
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