Is Trump Above the Law?

Donald Trump’s impeachment by the House of Representatives marks just the third time in history that a president of the United States has had to face trial in the Senate. The charges in the articles of impeachment drawn up by the House Judiciary Committee against Trump differ in important ways from those brought against Presidents Andrew Johnson and Bill Clinton, and they deserve close scrutiny. Trump’s possible defenses also merit careful analysis. Even if Trump does not send a lawyer to the Senate to defend him, he will be defended by Republican senators. And because it appears highly unlikely that he will be convicted by the requisite two thirds of the Senate, it is also worth exploring the implications of impeachment without removal from office, both for Trump’s presidency and for the future of American constitutional democracy.

1.

The first article of impeachment against Trump alleges that he “abused the powers of the Presidency” in that he “solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election.” It goes on to delineate three instances of his abuse of office. First, the article says that Trump “corruptly solicited” investigations “that would benefit his reelection,” one into former vice president Joe Biden and the other into the “discredited theory…that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election.” Second, it says that “with the same corrupt motives,” Trump made both the release of $391 million in military aid to Ukraine and a White House meeting with the Ukrainian president conditional on Ukraine’s announcement that it would undertake these investigations. Third, the article says that although Trump released the aid after his actions became publicly known, he “persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal political benefit.”

Finally, in a clause that starts with the legal word “wherefore,” the article asserts that Trump “will remain a threat to national security and the Constitution if allowed to remain in office” and that he “has acted in a manner grossly incompatible with self-governance and the rule of law.” It concludes that Trump “thus warrants impeachment and trial, removal from office, and disqualification” from future government service.

The charge of abuse of office for personal gain fits neatly into the sense of high crimes and misdemeanors familiar to the framers when they wrote the Constitution. They were particularly concerned that a sitting president would abuse his office to get reelected.¹

Nevertheless, there is a range of defenses that Trump or his proxies could raise to the charge. One is purely fact-based. The president’s supporters can claim, as some did in the House, that Trump never conditioned aid or a White House meeting on Ukraine’s announcement of the investigations. In short, there was no quid pro quo.

The main trouble with this defense is that the factual record compiled by the House Permanent Select Committee on Intelligence effectively proves that there was a quid pro quo. Ambassador Gordon Sondland testified expressly that there was. He even testified that Trump told him there was no quid pro quo but that he understood Trump to mean that the aid and White House visit were conditioned on announcing investigations—in other words, a quid pro quo. Trump’s supporters are left insisting weakly that Sondland didn’t understand the president correctly, even though he had by that point been a central participant in Trump’s Ukraine policy for months.

A further problem with the “no quid pro quo” defense is that no actual exchange or quid pro quo is necessary to sustain the charge of abuse of power. On its own, the request that Trump made to Ukrainian president Volodymyr Zelensky in his July 25, 2019, phone call qualifies as solicitation under the terms of the article of impeachment. Trump abused his office merely by requesting the “favor” he mentioned in the call. To convict him, the Senate doesn’t have to accept all three instances of abuse of power mentioned in the article. One would suffice.

A different type of fact-based defense would emphasize not Trump’s actions but his motives. The president’s defenders can assert—and did in the House—that he did not seek personal advantage when he solicited the investigations. Rather, they may say, Trump genuinely was concerned about corruption in Ukraine, and held up aid and the White House meeting in order to give Ukraine incentives to take it seriously.In its crudest form, this defense is notably unconvincing. Trump showed no personal interest in corruption generally in Ukraine, or anywhere else, in the period when he was insisting on the announcement of the investigations. Such an announcement would have had an obvious and significant personal benefit to Trump, weakening Biden’s presidential prospects and harming the Democrats. (Indeed, Biden seems to have been considerably weakened by public discussion of his son’s position on the board of directors of the Ukrainian energy company Burisma, even without a formal investigation.)

There is, however, a more sophisticated form of this defense based on Trump’s intentions, namely the argument that he acted with mixed motives: he may have anticipated personal benefit from the investigations, but he also had a legitimate interest in combating corruption. In its strongest form, the argument would insist that it is too difficult to disentangle legitimate from illegitimate motives, and that Trump should not be removed from office for conduct that could have had a legitimate explanation.

The article of impeachment implicitly addresses this defense by repeatedly using the adverb “corruptly” to describe Trump’s solicitation of Zelensky to announce the investigations. According to the allegations, what makes Trump’s conduct “corrupt” is precisely the motive of personal advantage, which outweighed the national interest. Trump’s supporters’ legal response would presumably be that there can be no convincing demonstration of corrupt motives in the presence of potentially valid motives.

The best answer to this defense is that the possible existence of a noncorrupt motive for Trump’s action doesn’t negate the presence of the corrupt motive. If Trump aimed to benefit himself, it should not matter for constitutional purposes whether he also wanted to do good for the country. The principle here is that abuse of office is not mitigated by the possibility that the official conduct might have positive effects.

Consider a classic case of the impeachable offense of abuse of office for personal gain: an officeholder takes outside money to do the job that he is already supposed to perform to earn his government salary. Imagine an attorney general who took a gift from one mobster to influence him to prosecute another mobster. The ensuing mob prosecution might be entirely legitimate and in the public interest. But by taking the gift, the attorney general would have committed an impeachable offense.

It wouldn’t matter that the attorney general might be glad to see the mobster he chose to prosecute put in prison, or that the country might benefit from it. The core offense of abuse of office lies in taking the gift, and thereby exploiting the office for personal benefit. Impeachments of this type were common in eighteenth-century England and known to the framers. The impeachable offenses of bribery and what was called “color of office extortion” in the English tradition were committed when a high officeholder took gifts of value to do his job.

It follows that if Trump sought personal advantage in the form of the announcement of the investigations, then his act of soliciting them was ipso facto an abuse of office. It does not matter that he could conceivably also have had a broader public interest in fighting corruption. The abuse of office was committed when he used the power of the presidency to seek personal advantage. On this understanding of abuse of office, it is not necessary to demonstrate that Trump’s motives were primarily or mostly corrupt. The presence of the corrupt motive of self-gain is enough.²

2.

The limits of the factual case in defense of Trump bring us to his possible legal defenses. The first of these, voiced in the House debates and sure to be heard in the Senate, is that impeachment for high crimes and misdemeanors requires a criminal offense as defined by statute or common law, and that the articles of impeachment do not allege one. In its simplest form, this argument can be refuted by observing that in the English tradition there were impeachments for acts that were not forbidden by statutory or common law, and that the framers certainly did not recognize any such limitation. Furthermore, previous impeachments that led to removal from office (not of presidents but of judges) have proceeded based on acts that were not crimes.

There are, however, two better-formulated versions of this defense, one historical and the other philosophical. The historical defense depends on the claim that both Johnson and Clinton were impeached for criminal acts, and that the articles of impeachment against Richard Nixon also invoked statutory crimes. While superficially appealing, this argument turns out to be weak when examined closely.

Johnson was impeached for violating the Tenure of Office Act, a law of very doubtful constitutionality that was enacted by Congress as an impeachment trap for the president. It purported to prohibit him from firing cabinet officials without the approval of the Senate. It then declared that violation would constitute a “high misdemeanor.” The phrase was chosen to depict Johnson’s anticipated resistance as impeachable. A “high misdemeanor” is not a statutory crime, and the term comes from the Constitution, not ordinary federal statutory law.³ (The law did specify that “upon trial and conviction,” anyone violating it would be “punished” by a fine of up to $10,000 or up to ten years’ imprisonment, or both. But it is clear that Congress did not intend the “high misdemeanor” actually to be tried in the federal courts, but only to impeach the president.) Johnson was thus not impeached for violating an ordinary criminal statute, but for the high misdemeanor of firing his secretary of war. It is therefore misleading to say that all the presidents who have been impeached were charged with statutory crimes.

The philosophical defense that the president should only be impeachable for a defined statutory crime is probably the strongest defense available to Trump’s supporters. It rests on what is sometimes called the principle of legality, namely that no one should be punished without notice of a crime specified in advance.⁴ As expressed by the House Judiciary Committee’s ranking Republican, Doug Collins, the argument is that Democrats should not be able to impeach simply by reciting the words “abuse of power” and then assigning any meaning they want to those words.

The strength of this defense rests on the intuitive sense that it must be unfair to punish someone for conduct he could not have known would merit punishment. Yet impeachment and removal are not punishments. Any criminal punishment for the president’s actions would have to result from a separate criminal trial, at which the principle of legality would apply.

More basically, however, it is often perfectly legitimate to sanction someone for conduct that is obviously morally wrong, even if it has not been clearly delineated in writing in advance. That is why, as a historical matter, common law judges sometimes punished behavior that was not known in advance to be criminal but that they considered morally wrong in itself. It is also surely the reason why constitutional commentators like Supreme Court Justice Joseph Story thought that the words “high crimes and misdemeanors” were intended to be open-ended—and considered that open-endedness perfectly legitimate. Some conduct by a president is so obviously wrong that it does not have to have been specified in advance. Trump, like every president before him, should have known that it would be morally wrong to use the power of his office to solicit a foreign government to investigate his presidential rival for his personal benefit.

3.

The second article of impeachment charges Trump with obstruction of Congress, stating that he “has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its ‘sole Power of Impeachment.’” The three specific acts mentioned include Trump’s defying a subpoena to produce documents; directing all executive branch agencies to do the same; and ordering “current and former” executive branch officials not to comply with specific subpoenas, orders obeyed by nine named individuals.

If Trump’s abuse of office for personal gain is the epitome of the conduct feared by the framers, his outright refusal to cooperate in any way with the House impeachment inquiry would almost certainly have taken them by surprise. Nothing in the debates at the Constitutional Convention or the ratifying conventions that followed suggests that the framers even began to imagine an executive who would purport to deny the House its power to impeach him. I can find no example of any royal official in England who defied or denied the impeachment power of the House of Commons.

The framers did, however, provide a remedy for a president who refused to cooperate in an impeachment inquiry: impeachment itself. As a matter of basic constitutional logic, the only thing the House of Representatives can do when faced with presidential refusal to cooperate in impeachment is to impeach the president for that same act of obstruction. The Constitution makes this possible because it does not specify any process that the House must use to impeach, or indeed require any investigation at all before impeachment. The House’s power to impeach is effectively absolute. All it takes is a majority vote.

If the House lacked the power to impeach on the basis of obstruction of Congress, it is easy to see what the consequences would be. The president could impede any investigation of his conduct initiated within the executive branch, because the entirety of the executive branch answers to him. The view of the Department of Justice is that the president cannot be criminally indicted while in office. Even if that opinion, memorialized in memoranda by multiple administrations, is constitutionally incorrect, it makes no practical difference—all federal criminal prosecutions must be initiated by the executive branch.⁵

A president who cannot be criminally investigated and also cannot be investigated by Congress would be effectively above the law. That is why it is so constitutionally evident that obstruction of Congress must be a high crime and misdemeanor. Denying Congress’s power to conduct an impeachment inquiry subverts the foundation of democratic government.

Trump’s first public assertion of his refusal to cooperate with Congress came in a letter from White House counsel Pat Cipollone to congressional leaders dated October 8, 2019. The letter not only refused all cooperation; it went so far as to condemn the House’s impeachment inquiry as unconstitutional. Perhaps needless to say, the president cannot be the judge of the constitutionality of an effort to impeach him.

The main defense available to Trump on this charge is that the Supreme Court, in the Nixon tapes case, spoke of a sphere of “executive privilege,” in which senior executive branch officials under some circumstances might not be required to answer questions. The case concerned a judicial subpoena rather than a congressional subpoena, but the principle might well be the same. Trump’s defenders may say that the president must have the legitimate right to go to the courts to challenge subpoenas against the executive branch, and that doing so should not count as an impeachable offense. According to this view, Trump’s directive to the executive branch and its officials is not obstruction of Congress, but rather a justifiable assertion of executive privilege that should be fought out in the courts.

No doubt the Supreme Court’s creation of the doctrine of executive privilege affords a president some latitude in challenging congressional subpoenas directed at his personal communications with his senior advisers. But that is distinctly different from a blanket order to stonewall Congress and refuse to comply with any subpoenas at all. To begin with, most officers in the executive branch are not in close personal contact with the president, and executive privilege would not apply to them. As for those to whom it might apply, they ought to appear before Congress and refuse to answer any questions that he or she (or the president) believes violate the privilege. As the federal district court judge Ketanji Brown Jackson has recently held, there is no “absolute immunity” for senior presidential advisers to refuse to appear before Congress, notwithstanding Justice Department memoranda to the contrary.

The upshot is that while it is not obstruction of Congress for Trump to seek judicial review of particular subpoenas—or even to assert “absolute immunity” for senior aides—it is obstruction for him to refuse all of the House’s efforts to investigate him for the purpose of impeachment. One of the articles of impeachment against Nixon was for obstruction of Congress. Nixon engaged in far less obstruction than Trump. Despite his refusal to hand over the White House tapes until compelled to do so by the courts, Nixon permitted some executive branch officials to testify and provided some documents requested by Congress.

4.

If the Senate does not remove Trump, what will that mean for his presidency, and for impeachment itself? Although the word “acquittal” is often used to describe the failure to reach the two-thirds vote required to remove the president, that is not the same as a criminal acquittal, which requires jury unanimity. Nonremoval does not amount to vindication.

This distinction matters because it shows that impeachment by the House is itself a powerful constitutional act. An impeached president must face trial in the Senate. (And a Senate that refused to hold such a trial would be in violation of the Constitution.) Symbolically, impeachment by the House is the strongest sanction available against a president short of removal from office. It is much stronger than a congressional censure, both because it is apt to come with real-world consequences and because, unlike censure, it is specifically mentioned in the Constitution.

The meaning of impeachment on its own, even without removal, is underscored by the fact that removal is so difficult. By making it possible to impeach with a bare majority of the House while requiring two thirds of the Senate to remove, the framers’ design anticipated the likelihood that impeachments would not result in removal. That structure only makes sense if they considered impeachment itself to be a sanction. Otherwise they could have required a two-thirds vote in the House to impeach, which would have made it much less likely.

Historical experience bears out the consequences of this asymmetric structure. Johnson and Clinton both survived their Senate trials. But both paid a price for the impeachment itself. Johnson, who missed removal by one vote, tried and failed to get the Democratic nomination in 1868, and his historical legacy, already poor, has been further impoverished by his impeachment. Clinton was in his second term, and so reelection was not an issue for him. His impeachment, however, harmed Al Gore, his vice president, who chose to backpedal from his association with Clinton and (narrowly) lost the 2000 election. Clinton’s impeachment probably also harmed the 2016 candidacy of Hillary Clinton: for example, Trump attempted to deflect attention from allegations of sexual assault against him by inviting some of Bill Clinton’s accusers to a presidential debate.

Trump’s supporters have made much of the partisan nature of the current impeachment process. They and Trump can be expected to argue that a party-line vote in the House should vitiate the stigma of impeachment. Trump, who has shown himself impervious to much criticism that would have affected previous presidents, may find himself buoyed by nonremoval. It is even possible that a Senate vote in his favor might help his reelection prospects. If that happens, and Trump is reelected after having been impeached, he may see himself as genuinely above the law, a prospect that is concerning to say the least.

For the long-term strength of the Constitution and the rule of law, much turns on the public perception of why the Senate might choose not to remove Trump. If the public sees nonremoval as purely partisan, it would signal that the Constitution is open to abuse when a party is more loyal to a president than to the country. But it would not necessarily change the public’s belief that impeachment is a serious sanction for dangerously wrongful conduct.

If the public believes the evidence against Trump is insufficient, that would suggest a breakdown in our collective ability to assess facts and draw inferences. It would not, however, meaningfully erode constitutional norms, because it would imply that the public recognizes the gravity of high crimes and misdemeanors in general. From the standpoint of the Constitution, this would actually be the least worst perceived basis for nonremoval.

The most dangerous outcome for constitutional governance would be if the public accepted the facts about Trump’s conduct but concluded that it was not impeachable because it was perfectly fine—business as usual. If the American people were to “get over it,” as Trump’s acting chief of staff Mick Mulvaney advised in a press conference, it would mean they had accepted the idea that a president may constitutionally abuse his office for personal political gain.

At the Virginia ratifying convention, James Madison explained that no government could “secure liberty or happiness without any virtue in the people.”⁶ The passing of the political virtue necessary for constitutional democracy is terrible to contemplate. But it is not unprecedented in world history.

—December 19, 2019