As I discussed yesterday in the Washington Post, the White House defense in the Senate impeachment trial is built again the dubious constitutional argument that a president cannot be impeached without an alleged criminal case. That argument will be presented by Harvard Law Professor Alan Dershowitz but it is based, in my view, on a flawed reading of both impeachment and specifically the trial if Andrew Johnson. It was a mistake that will make it more difficult for Republican senators to sign on to a defense tied so closely to an untenable constitutional argument. Today, more Republican senators, including Sen. Lindsay Graham, came forward to say that they categorically reject the interpretation. Even more concerning was the response of President Donald Trump when asked if abuse of power can be an impeachable offense. He responded that “it depends.” That is actually the correct answer but it is not the position being taken by the White House on the Senate floor.
While the New York Times described the answer as “equivocal,” it is an accurate reduction of the law. It does depend on the underlying allegation of abuse of power. I have expressed my reservations about the allegations in this case and whether it warrants the removal of a president. However, the most important aspect of the President’s comment is that such an abuse can be impeachable. It really does depend.
That is precisely the nuance that is missing in the White House.
During Trump’s impeachment hearing, I argued against four articles of impeachment being touted by the the leadership of the House of Representatives, including bribery. The problem is that the allegations against Trump fall well outside of definitions and case law of these crimes. While such definitions are not controlling, Congress has always looked to criminal cases on the meaning of such offenses. The reason is simple. The criminal code offers an objective and neutral source for defining acts free from political manipulation.
Not only do such cases put a president on notice of the range of impermissible conduct, but it shows the public that the president is being held to a clearly defined and understood standard. Ultimately, I was relieved when the House Committee rejected those four articles and went forward with the two that I testified would be legitimate, if proven.
However, this absolutist argument presents the inverse problem of adopting too narrow of an impeachment standard. That is a view clearly shared by a majority if not a super-majority of senators. The question is why build a defense around a flawed theory that it is so widely rejected, including by the Senate itself.
Ideally, abuse of power articles go forward with actual alleged criminal conduct but it is not required. To put it simply, abuse of power can be an impeachable offense but “it depends.”