Factually Weak Impeachment Will Alter The Nature Of Our Government

Factually weak impeachment will alter the nature of our government
Peter J. Wallison
October 30, 2019

The current effort to impeach President Trump is not only factually weak, but if it results in a
House impeachment vote it will endanger the functioning of our government in the future. First,
the Constitution is clear, as Professor Alan Dershowitz has argued, that an impeachable offense
must be a serious crime. Second, if Congress chooses to act without finding such a crime, it will
have created a precedent for removal of a president on a purely partisan basis, weakening the
stability of the presidency and changing the nature of the U.S. government in the future. And
third, Congress will have to overcome the fact that President Trump actually delivered the
requested weapons to Ukraine without any of the actions by Ukraine’s government that he
purportedly sought. In other words, he did not carry through the act for which he is being
charged.
High Crimes and Misdemeanors
Professor Dershowitz makes several arguments for his position. The most powerful and
persuasive is simply that the Constitution’s words exclude actions that are not crimes. In
outlining when an officer can be impeached, the Constitution requires “Treason, Bribery, or
other High Crimes and Misdemeanors.” No one doubts that treason or taking bribes are crimes,
but the important fact is that these two very serious crimes suggest the serious nature of the
words that follow: “High Crimes and Misdemeanors.”
In dealing with statutory language, lawyers often refer to the canons of statutory interpretation,
which describe how statutes or other texts should be interpreted. One of these is: “where general
words follow an enumeration of two or more things, they apply only to persons or things of the
same general kind or class specifically mentioned.” Thus, the meaning of “High Crimes and
Misdemeanors is informed by the earlier use of the terms “Treason” and “Bribery.” The Framers,
who were lawyers, knew that by preceding “High Crimes and Misdemeanors” with the serious
crimes treason and bribery, they were unambiguously signaling that impeachable offenses must
be of equivalent gravity.
This excludes the notion that President Trump can be impeached for withholding weapons from
Ukraine until the newly elected president promises to investigate something. That might have
been a supremely dumb act by the president — properly characterized as using U.S. foreign
policy for his own political advancement — but it is not a crime.
Occasionally one hears the argument that what Trump did was a crime under campaign finance
law, because it is illegal to receive “anything of value” from a foreign source in connection with
a political campaign. “Dirt” on former Vice President Biden would be “something of value,” this
argument posits, but it runs up against the problem that presidents and candidates for president
do this all the time and are not charged with a crime. Let’s consider the benefit that President
Obama received from the German government in 2008, when he was allowed to make a speech
in Berlin (the one about the Earth cooling in the future). Was that “something of value” received
from a foreign source? Yes. Did anyone imagine it was a crime? No. Or when the US
government supports Israel’s position in the UN and the president is then visited and highly
praised as a friend of Israel by the Israeli prime minister. Was this sought by the president? Yes.
Is that something of value from a foreign source? Certainly. A crime? No.
Anyway, even if President Trump’s actions were a technical crime under the campaign finance
laws, they would not rise to the “High Crimes” level the Constitution demands for an
impeachment. If it’s a crime at all, it is one of a very low and technical character, not something
that Congress should be able to use to overturn an election.
The Danger of a Political Impeachment
The Framers’ care in describing the gravity of the offenses necessary for impeachment was
clearly intended to prevent what is happening today — the possible impeachment of the
president by the opposing political party. If Congress could remove a president from office — in
other words, overturn an election — for insubstantial reasons, it will destroy the stability of the
presidential office in the future. Any time that Congress is controlled by an opposing political
party, the president will be in danger of impeachment for some minor offense. Think of what
would have happened if the Benghazi events had occurred after the precedent that Congress now
seems determined to set. The deaths of four Americans, including the US ambassador, and a
clearly flimsy excuse by the Obama administration that this was all caused by a film. An
impeachment effort by the Republicans would have been virtually certain.
Given the precedent the Democrats seem ready to set by continuing the impeachment process on
the basis of a presidential offense of such low quality, cooler heads in Congress, the public and
the media should step in. Most observers, left and right, seem to take it as a given that the House
will eventually impeach President Trump, simply because the House is controlled by the
Democrats. But this is more than a political game; what is actually at stake is the future of the
government structure that has steered this country through innumerable crises for over 200 years.
In his book “Profiles in Courage,” former President John F. Kennedy recognized as heroic the
act of a single senator that prevented the impeachment of Andrew Johnson, the president who
succeeded Abraham Lincoln. There was much wrong with Johnson’s rule, but Kennedy
recognized that if this impeachment succeeded it would set a devastating precedent for the
future. The Democrats should recognize this today, and act accordingly. Holding hearings and
criticizing President Trump for what he did makes great political sense as we enter an election
year, but impeaching him for bad or mistaken judgments or policies would be a grave disservice
to the country.
The Weakness of the Impeachment Case
The argument for impeachment is that President Trump, by withholding a shipment of badly
needed weapons for Ukraine, tried to force the president of Ukraine to investigate that country’s
interference with the 2016 US election and the circumstances associated with then-Vice
President Biden’s son receiving significant compensation from a Ukrainian firm during the
Obama administration. The idea is that the president sought political benefits for himself by
using the lever of US foreign policy.
There is no question that the second of these allegations, if it occurred, is unworthy of someone
holding the highest office in the United States, but at least in its current form it is a fatally weak
argument for impeachment — simply because the president actually delivered the weapons
Ukraine wanted, without receiving the investigations on which he was supposedly insisting.
The telephone conversation between the two leaders occurred in late July 2019, and the arms
were delivered in late September. In other words, there was plenty of time for the Ukrainian
government to start the requested investigations if it thought that President Trump was serious,
but the investigations never occurred and eventually the arms were shipped.
This raises questions about exactly what was in the president’s mind. It doesn’t matter how many
current and former members of the US foreign policy establishment insist that the president was
trying to get the new Ukrainian leader to start an investigation in exchange for the weapons. The
fact is that the president delivered the weapons without receiving what he had allegedly
bargained for.
We should know by now that President Trump is impulsive; he talks about wanting to get a lot of
things done, but he changes his mind frequently. He expresses ideas to advisers, who inevitably
tell others what the president says, and then changes his mind and does something else, or
nothing. In the case of the alleged effort to obtain political benefits from Ukraine, he didn’t get
them, but is on the verge of being impeached simply for allegedly wanting them.
This is no foundation for the House to vote impeachment, or for serious people — who
understand the terrible precedent such a vote will produce — to stand idly by.

Peter Wallison is a senior fellow at the American Enterprise Institute. He was White House
counsel in the Reagan administration. His latest book is “Judicial Fortitude: The Last Chance to
Rein the Administrative State.