A “Lovely, Knotty Problem”: Is The House Impeachment Case On A Collision Course With The Law of Attempts?

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.

202 thoughts on “A “Lovely, Knotty Problem”: Is The House Impeachment Case On A Collision Course With The Law of Attempts?”

    1. That tape of Trump, Parnas, and Fuhrman ( assuming that is authentic) linked by anonymous at 6:40 PM raises some questions.
      Parnas and Fuhrman are telling Trump in April 2018 that Amb. Yovanonvich has been bad mouth Trump.
      If that’s true, did Trump have a valid reason for replacing her?
      If it is not true, why were Parnas and Fuhrman telling that to Trump?
      Also, why did Shokin’s successor as Ukraine’s General Prosecutor——Lutshenko—- also want to see Yovanovich fired?

      1. also want to see Yovanovich fired?

        She looked awful in Spandex. Mespo, OTOH, looked fabulous this morning in the gym while I trained on weights. Mespo was so giddy showing of his Jane Fonda moves in Blue and Gray Spandex that I didnt have it in me to stop him

        1. This was a real Laugh-Out-Loud moment, I could watch this on repeat, just to fall out of my chair. What in the world…and there are a few guys in the background…..

          1. I keep thinking of Darren and how he must suffer in reading the ridiculous comments on this blog like, “ also want to see Yovanovich fired?”

            So yea, Im working off some sins by doing good and in this case giving the poor moderator some humor

          2. If you found that to be “a real Laugh-Out-Loud moment”…and one that you could rewatch “just to fall out of [your] chair”…? You really might want to think about getting out more… It wasn’t that funny.

    2. This is a logical fallacy .The idea that you must have only a single reason to do something is absurd. Of course you can have many reasons. Duh.

  1. Anyone who sees this whole clown show as anything other than a blatantly political attempt by the Democrats at influencing the 2020 election is not in touch with reality.

    1. blatantly political attempt by the Democrats at influencing the 2020 election is not in touch with reality.
      _____________________________________________
      Yup the Democrats are trying to get Trump re-elected in 2020.

        1. “George Soros pays trolls to clog the comments section”

          Prove it, you idiot. And while you’re at it, get a life.

            1. “That you deny it proves its true.”

              Uh, no, it doesn’t. (Anon @ 9:46 clearly isn’t operating on all cylinders.)

              lol

  2. The real crux which is being avoided is that the facts of the Biden corruption cry for investigation. The President is completely justified in asking for one. He just did it in the wrong way. If he would have said “We have a treaty for assistance in investigations, and the Biden question looks like corruption is taking place, will you assist us.” This mess would probably not be taking place. Too many of Bidens family members (5) have benefited monetarily from his position in government. These benefits cannot be justified by their expertise, experience, or knowledge.

    The Presidents request may have been awkward but it is not impeachable.
    You are correct of course that the House is the abuser of power. The Democrats colluded with the Russians. The Democrats spyed on the Trump campaign and presidency, The Democrats received the assistance from the Ukraine. All this is documented and will come out. It is the Democrats who have been disingenuous, and untruthful to the point of Treason. I fear for our country and the Constitution if they get power or even retain the House.

    1. anony mouse,
      I agree with you that Trump went about it the wrong way.
      There is actually a 2016 blueprint for how to go about this:
      Get the law firm for the RNC to contact a firm that will do foreign opposition research on a political opponent.
      Have that law firm contact someone ( an expert familiar with the Ukraine) assign his contacts to dig up dirt using the contacts’ sources, then have the contacts feed back their sources’ allegations to the Ukraine expert.
      Have the Ukraine expert prepare a dossier with these sources’ allegations, give it to the FBI, then meet with major media organizations and try to get them to publish the dossier’s allegations just prior to the November election .
      By the time anyone took responsibility for this dossier project, it would be long after the November election.
      When it is finally determined that it was the RNC paid for this project, whoever authorized the project and payment for it can then deny knowing anything about it.

    2. He just did it in the wrong way. If he would have said “We have a treaty for assistance in investigations, and the Biden question looks like corruption is taking place
      ________________________________________________
      The treaty explains the correct way to ask Ukraine for an investigation. But Trump did not want to have Ukraine investigate because that would be worthless. Ukraine has a very corrupt legal system. That makes any investigation they do worthless.

      Here is the result of the most recent investigation of the Biden by Ukraine:

      https://www.nbcnews.com/politics/donald-trump/hunter-biden-did-not-violate-anything-former-ukrainian-prosecutor-says-n1059136

  3. It does make sense to consider whether the “attempt” was abandoned at the point of law enforcement resistance. It also matters whether affirmative, actionable steps were taken in furtherance of the attempt, and whether they involved concealment of intent.

    Trump’s most sleazy abuse of power was to appoint Rudy Guliani to be in direct negotiations with Pres. Zelinskiy, while going around the State. Dept. and our official diplomates in Kiev. This included the plot to discredit and fire the Ambassador using mafia-like infowarfare techniques, then Trump instructing all parties to “talk to Rudy”. The WH has yet to give any reasonable explanation for this amatuer diplomacy effort (which is disgraceful when all the details are hauled out into view).

    Rudy has the most ‘spainin’ to do of anyone except Trump himself. He was a human hand-grenade, and the Senate Trial is the concussive blast John Bolton anticipated.

    1. I have watched Schift’s and Nadlers “presentations”. The lies they spewed with impunity were breathtaking. Each and every point could be proved false. You call Trump “sleezy”?
      Boot licking partisan much? This goes past “partisan divide” far into lunacy. I was a Democrat until Jimmy Carter.

    2. Trump’s most sleazy abuse of power was to appoint Rudy Guliani to be in direct negotiations with Pres. Zelinskiy, while going around the State. Dept. and our official diplomates in Kiev.

      I don’t know how to break it to you, but we have a unitary executive. And using a special envoy is not an innovation of Trump’s. They all so this.

      This included the plot to discredit and fire the Ambassador using mafia-like infowarfare

      She serves at the President’s pleasure. He doesn’t need mafia-like anything to unload her. One thing the hearings demonstrated was that there were NSC and State officials who were insubordinate. He had every reason to fire them (or in Miss Marie’s case, to shunt them off to an inconsequential job until they could collect their pensions). I voted for Trump to fire people like Marie Yovanovitch, especially if they actually are running interference for cretins like the Bidens.

    3. Trump’s most sleazy abuse of power was to appoint Rudy Guliani to be in direct negotiations with Pres. Zelinskiy, while going around the State. Dept. and our official diplomates in Kiev.
      _________________________________________________
      The constitution says that the president can appoint ambassadors and the Senate must approve them. Giuliani was an end run around the Constitution.

  4. If the Ukrainian government had opened an investigation of Biden during the time the aid was withheld, Professor Turley would not be arguing this was an attempt, even if the aid was later released. The Ukrainian government could have opened an investigation any time after Trump’s statements to Zelensky. It seems to me that the act of abuse of power was completed at the time, if it occurred at all, and was not an attempt just because the desired result was not achieved.

  5. I’m surprise that Mr. Turley did not even allude to the fact that the GAO recently found that withholding the aid was indeed a violation of the Impoundment Control Act of 1974. So a law was indeed broken.

    1. some thinkers dispute the authority of the GAO to declare what is legal and what is not. Others cite their scolding of Obama, who, according to them, broke the law exchanging for Bowe Bergdahl, but was never prosecuted. OMB disagrees with GAO, and I think their timing betrays their intent.

  6. Has the needle moved any since this whole impeachment charade began? Why is that? Until now, we’ve had only the Democrat’s version of events, broadcast by their allies in the media. We are finally going to hear from the President’s counsel and the media will be forced to cover his defense. That needle is going to move in a big way and it won’t be favorable to the prosecution. Compounding the Democrats problems is Durham’s investigation. Add in the Democrats slate of candidates and their not-of-of-this-world vision for America. We may have the perfect storm needed to cleanse the political class of progressivism for a generation.

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