South Texas College of Law Prof. Josh Blackman:
The way things look, President Trump will almost certainly not be removed from office. The precedents set by the articles of impeachment, however, will endure far longer. And regrettably, the House of Representatives has transformed presidential impeachment from a constitutional parachute — an emergency measure to save the Republic in free-fall — into a parliamentary vote of “no confidence.”
The House seeks to expel Mr. Trump because he acted “for his personal political benefit rather than for a legitimate policy purpose.” Mr. Trump’s lawyers responded, “elected officials almost always consider the effect that their conduct might have on the next election.” The president’s lawyers are right. And that behavior does not amount to an abuse of power.
Politicians pursue public policy, as they see it, coupled with a concern about their own political future. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable “abuse of power.” The House’s shortsighted standard will fail to knock out Mr. Trump but, if taken seriously, threatens to put virtually every elected official in peril. The voters, and not Congress, should decide whether to reward or punish this self-serving feature of our political order.
The first article of impeachment turns on President Trump’s request that President Volodymyr Zelensky of Ukraine announce an investigation of Hunter Biden’s role with the energy company Burisma. Mr. Trump wanted to learn about potential financial corruption concerning Hunter, realizing that such an investigation would, perhaps, yield greater scrutiny of Joe Biden. The House argues that this request to potentially harm Mr. Trump’s political rival was an “abuse of power.”
Mr. Trump’s lawyers respond that the call was “perfectly normal.” Yes, that phrase actually appears in the brief. Regrettably, parts of the brief are written in a far-too-political tone. But the president’s lawyers have raised an important threshold issue.
“In a representative democracy,” they write, “elected officials almost always consider the effect that their conduct might have on the next election.”
President Trump did not stand to receive any money or property from the Ukrainian president. (The House wisely chose not to charge Mr. Trump with bribery.) As a policy matter, I disagree with Mr. Trump’s decision to ask for an investigation of the Bidens. Even if warranted, it should have been avoided at all reasonable costs. The Republic would have been fine if we never learned more about Burisma. But receiving a “personal political benefit” does not transform an otherwise legal action — requesting an investigation — into impeachable conduct.
Mr. Trump is not the first president to consider his political future while executing the office. In 1864, during the height of the Civil War, President Lincoln encouraged Gen. William Sherman to allow soldiers in the field to return to Indiana to vote. What was Lincoln’s primary motivation? He wanted to make sure that the government of Indiana remained in the hands of Republican loyalists who would continue the war until victory. Lincoln’s request risked undercutting the military effort by depleting the ranks. Moreover, during this time, soldiers from the remaining states faced greater risks than did the returning Hoosiers.
Lincoln had dueling motives. Privately, he sought to secure a victory for his party. But the president, as a party leader and commander in chief, made a decision with life-or-death consequences. Lincoln’s personal interests should not impugn his public motive: win the war and secure the nation.
Consider a more recent example. In 1967, President Lyndon B. Johnson sought to put Thurgood Marshall, the prominent civil rights advocate, on the Supreme Court. But there were no vacancies. Not a problem for Johnson, who nominated as attorney general Ramsey Clark, the son of Supreme Court Justice Tom C. Clark. Johnson knew that this move would, as Wil Haygood wrote in “Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America,” raise questions “about a perceived conflict of interest because [Ramsey] Clark’s father sat on the high court.” Indeed, Johnson hoped that Justice Clark would retire to avoid having to recuse from cases in which Attorney General Clark was a party.
The stratagem worked. Justice Clark soon retired, and Johnson appointed Thurgood Marshall to fill the vacancy. Here, Johnson engineered a move that would have created conflicts that would keep a sitting Supreme Court justice from deciding countless appeals, where the primary purpose was to create a vacancy on the court. (Imagine if President Trump selected Chief Justice Roberts’s wife as attorney general!) Ultimately, Johnson did not run for re-election in 1968, but appointing the first African-American justice could have improved his popularity, and perhaps his party’s electoral standing.
Politicians routinely promote their understanding of the general welfare, while, in the back of their minds, considering how those actions will affect their popularity. Often, the two concepts overlap: What’s good for the country is good for the official’s re-election. All politicians understand this dynamic, even — or perhaps especially — Mr. Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns. Politicians can, and do, check the polls before casting a difficult vote. Yet the impeachment trial threatens to transform this well-understood aspect of politics into an impeachable offense.
What separates an unconstitutional “abuse of power” from the valorized actions of Lincoln and Johnson? Not the president’s motives. In each case, a president acted with an eye toward “personal political benefit.” Rather, Congress’s judgment about what is a “legitimate policy purpose” separates the acclaimed from the criticized. Preserving a unified nation during the Civil War? Check. Creating a vacancy so the first African-American can be appointed to the Supreme Court? Check. But asking a foreign leader to investigate potential corruption? Impeach.
An impeachable offense need not be criminal. But our Constitution does not allow Congress to take a vote of “no confidence” for a president who pursues legal policies that members of the opposition party deem insufficiently publicly spirited. Presidents who take such actions with an eye toward the ballot box should be judged by the voters at the ballot box.