Below is my column in Washington Post on a little discussed issue lingering in the hundreds of pages of briefing in the Trump Senate trial: what to do with an attempt to abuse power. Many of us have been discussing whether abuse of power is an impeachable offense. The White House maintains that it is not because articles of impeachment must be based on criminal acts. Many of us have criticized that theory as untenable and unsupportable in the history of English and American impeachments. However, the more interesting question is not what to do with an abuse of power but an attempted abuse of power.
Here is the column:
With the start of the impeachment trial, the Senate (and the country) will soon be faced with what the late Yale professor Arthur Leff described as one of the law’s most “lovely, knotty problems.”
Leff was speaking of what is loosely called “the law of attempts,” a category of crimes where someone is accused of contemplating, but not actually carrying out, an unlawful act. The Trump trial could be the first time the Senate considers charges that amount to allegedly conceiving, but then abandoning, an abuse of power. While it is certainly true that there was a temporary act of “nonfeasance” in withholding the aid to Ukraine, it was ultimately released over two weeks before the deadline under federal law.
The Trump administration will argue that there was no quid pro quo between the president of the United States and the president of Ukraine; that the military aid to Kyiv, though authorized by Congress, was never withheld; and that the White House always intended to release the aid by the end of September. (It was released on Sept. 11, two days after a whistleblower complaint about the alleged bargain sparked congressional inquiries and, according to critics, was the reason that Trump decided to release the aid.) The question for the Senate is whether an attempt to cut the deal qualifies as a high crime or misdemeanor.
The law of attempts has long been debated, and has often favored defendants in securing lesser punishments or outright acquittals. When, in 1879, an Alaska man sent an order for 100 gallons of whiskey from California, he was charged with illegally attempting to “introduce spirituous liquors” into Alaska. A court dismissed the charge, writing, “There are a class of acts which may be fairly said to be done in pursuance of or in combination with an intent to commit a crime, but are not, in a legal sense, a part of it, and therefore do not, with such intent, constitute an indictable attempt.”
That helps explain why such attempted crimes are generally punished less severely. The California Penal Code Section 664 stipulates, for example, that most attempted offenses are punishable, at most, at a level half that for a completed offense. Of course, the Senate cannot “half-remove” a president. But one of the more knotty problems facing the Senate is whether a president can be saved by what Leff called the “luck” of an alleged plan that never actually played out.
If so, the whistleblower complaint could strangely prove the luckiest break Trump ever got from the House. If Trump’s critics are right, it was the complaint that stopped an attempt from becoming a completed abuse of office.
Not everyone sees a foiled attempt as a reason to acquit. This perspective came up in the House impeachment hearing when Harvard Law professor Noah Feldman declared, “If the president of the United States attempts to abuse his office, that is a complete impeachable offense.” (I also testified at the hearing.)
Another witness, University of North Carolina law professor Michael Gerhardt, attempted to explain it this way: “Imagine a bank robbery. The police come and the person’s in the middle of a bank robbery. The person then drops the money and says, ‘I am going to leave without the money.’ Everybody understands that’s robbery.”
The analogy highlights the problem of what some courts call “abandonment” cases. Even if the intent of a robbery is proved, Trump never took the loot. Police do not arrest people parked in front of a bank and charge them as bank robbers based on their contemplated or thought crime.
All impeachment trials present a mixed question of both the guilt and the gravity of an alleged offense. Senators often disagree with the House about whether an act is impeachable or, if guilt is proven, whether the gravity of the act warrants removal.
This issue came up in the first impeachment trial of a federal judge, when the House charged Judge John Pickering in 1803 for “unlawful rulings” and intoxication on the bench. These were noncriminal acts. The Senate voted to separate the votes on guilt and removal, but still the judge was removed from office. Later, in 1936, in the impeachment trial of Judge Halsted L. Ritter (for bribery), the president pro tempore ruled that, if the underlying offenses are found to have occurred, removal should be automatic.
That brings us back to the Trump trial. Today, senators cast a single vote for different reasons. Some based on guilt; some based on gravity with only God able to sort them out. Indeed, some senators of both parties have already reached their decision based merely on the allegations. For example, Sen. Kamala D. Harris (Calif.) declared, “I don’t really think this impeachment process is going to take very long, because, as a former prosecutor, I know a confession when I see it!” Assuming that most senators missed that Perry Mason moment, they will still be left not simply weighing the evidence but the act in terms of the removal of an American president.
Withholding the aid in the hopes of an investigation into a political opponent would be improper if proved. But the aid, in the end, was not withheld. The Senate might now have to decide whether an attempted abuse constitutes a removal offense for an American president.
Jonathan Turley is the chair of public interest law at George Washington University and served as the last lead counsel in an impeachment trial before the Senate in defense of Judge Thomas Porteous. He is also a CBS and BBC legal analyst.