Editor’s note (January 21st 2020): This article was updated early on January 21st, after Mitch McConnell announced his resolution for the Senate’s rules.
DONALD TRUMP’S impeachment trial is due to begin today, when the Senate reconvenes after the holiday weekend. Early on Monday afternoon, his lawyers released their brief urging the Senate to “speedily reject these deficient Articles of Impeachment and acquit the President.” Later that evening, Mitch McConnell, the Senate majority leader, announced the rules that will govern the trial. The trial will pit opposing theories of the nature of political power against one another. It will also feature a tactical battle. The House has the more plausible theory; the one advanced by Mr Trump’s lawyers would, in effect, render impeachment a dead letter, rather than a valid constitutional remedy. But the outcome of the trial is not much in doubt, and Mr McConnell’s rules appear designed to ensure a swift acquittal.
Start with the two sides’ arguments. The House’s brief, released on January 18th, has a straightforward argument: Mr Trump abused his power and obstructed Congress, and was impeached on those grounds. “The impeachment power”, the House argues, “is an essential check” on presidential authority, “and Congress must exercise this power when the president places his personal and political interests above those of the Nation. President Trump has done exactly that.”
The brief alleges that Mr Trump abused his power by exerting pressure on a foreign country to interfere in an American election for his own personal political benefit, thus undermining both America’s electoral process and its foreign policy. He wanted Ukraine’s president to announce an investigation into Joe Biden, and the Ukrainian energy firm on whose board his son sat, and into allegations that Ukraine interfered in the 2016 election. The brief argues that “there is no evidence that vice-president Biden acted improperly”, and the Ukrainian-interference theory is “not only pure fiction, but malign Russian propaganda”. He sought those investigations, the Democrats say, “for personal and political reasons rather than legitimate foreign-policy reasons.”
Mr Trump then obstructed Congress by directing the White House and other executive-branch agencies to flout lawful subpoenas. He directed his top aides not to testify, and compelled multiple agencies to refuse to produce lawfully requested documents. “Refusing to comply with a congressional impeachment investigation,” the House argues, “is not a constitutionally valid decision for a president to make,” and “presents a serious danger to our constitutional checks and balances.”
The brief, filed on January 20th by Mr Trump’s team in response argues that the Democrats’ articles of impeachment are “an affront to the Constitution and to our democratic institutions.” In this view impeaching the president for what Democrats say is an abuse of power is actually a dangerous encroachment on the president’s constitutional powers; approving impeachment on those grounds would permanently weaken the presidency. What they call obstruction of Congress is a legitimate assertion of presidential power and privilege; approving that article would turn America’s tripartite system of power-sharing into “precisely the type of parliamentary system the Framers rejected”.
Moreover, impeachment, Mr Trump’s team argues, requires “specific offences against ‘already known and established law’”, and Democrats have provided none. (As it happens, the Government Accountability Office, a nonpartisan federal auditing agency, in an opinion released on January 16th found that withholding military aid to Ukraine did in fact violate federal law, but this finding was not part of the impeachment articles.)
The Trump team’s view is at odds with Alexander Hamilton’s understanding of impeachment as expressed in the Federalist Papers, written to promote passage of the constitution. In the 65th paper, he argues that “the subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” The House’s judiciary committee approved an abuse-of-power impeachment article against Richard Nixon, and Andrew Johnson was impeached for, among other things, “declar[ing] with a loud voice, certain intemperate, inflammatory and scandalous harangues”.
The brief also faults Democrats for failing to present witnesses with first-hand knowledge of why the president withheld military aid to Ukraine in exchange for announcing investigations into the Bidens, though in fact the White House blocked all such potential witnesses from testifying. It argues that the House’s proceedings denied Mr Trump his due-process rights. And it insists that Mr Trump’s actions regarding Ukraine were legitimate because presidents control foreign policy, regardless of their motives; whereas Democrats possessed “an insatiable partisan desire to find some way to remove him from office”, which fatally taints the impeachment proceeding. In other words, though Democrats’ motives are material and determining, the president’s are irrelevant.
Republicans are not wrong to raise separation-of-power concerns when Congress mulls removing a president from office. It is not something to undertake lightly. But impeachment is a constitutionally valid procedure, and it does not, as some Republicans assert, negate the 2016 vote. If Mr Trump were removed, a Republican (Mike Pence) would still be president; all of his judicial appointees would remain in office; and the policies of a Pence administration would not be substantively different from those of the Trump administration.
Removal, of course, is vanishingly unlikely; the 20 Republican senators whose votes would be needed are not going to cross the aisle. Even so, although a Congress that made over-zealous use of its power to impeach and remove presidents would up-end America’s constitution, it is hard to see why this impeachment and removal, on the specific grounds outlined in the articles of impeachment, would do lasting damage to the separation of powers. It might render future presidents less likely to solicit foreign aid in undermining a domestic political rival. That does not seem like an outcome to mourn.