As extraordinary as the impeachment of a president may be, the Framers must have believed the process might someday have to be used. If this is the case, it means they thought that there were some executive actions that would be deemed as high crimes and misdemeanors. One of the key questions the Senate faces in the impeachment trial of President TrumpDonald TrumpTrump criticizes Justice for restoring McCabe's benefits Biden: Those who defy Jan. 6 subpoenas should be prosecuted Hillicon Valley — Presented by LookingGlass — Hackers are making big money MORE is whether his conduct with Ukraine qualifies as an impeachable offense. The answer is that it does, and the point should not be in serious doubt.
The lawyers for Trump have claimed that Ukraine was only business as usual, for this or any other president. Writing in the New York Times, Josh Blackman agrees, arguing that the House of Representatives impeached the president simply for being a politician and, as the lawyers for Trump argued, for considering the effect of his conduct “on the next election.” The president, Blackman maintains, cannot be impeached for pursuing “legal policies that members of the opposition party deem insufficiently publicly spirited.” This view of impeachment is wrong for three reasons.
First, as Philip Bobbitt explains, the problem is not just that Trump asked a favor from Ukraine that may have been helpful to his reelection, but what he did “to get that favor” by clearly refusing to “disburse congressionally authorized military assistance is a violation of the law that strikes at the heart of constitutional government.” The conduct of the president is an impeachable offense because he sought to obtain an electoral advantage by ignoring statutory requirements set by Congress in the Impoundment Control Act of 1974. Such action indeed represents an abuse of power.
Second, history provides no support for the perspective that Trump was acting as politicians will. Blackman equates requesting that the Ukrainians investigate potential rival corruption with President Lincoln encouraging General William Sherman to permit deployed soldiers to return to Indiana to vote in 1864, so that the state would remain under Republican control. That result would have inured to the political benefit of Republicans and to Lincoln himself by ensuring support from Indiana for the war efforts.
Blackmun also cites President Johnson appointing Ramsey Clark to be attorney general, knowing that the perceived conflict of interest for his father, Associate Justice Thomas Clark, might push him to resign from the Supreme Court. The resignation would then create an opportunity for the nomination of Thurgood Marshall as the first African American justice in the nation, a move that could have helped both Johnson and his party.
If, as Blackmun reasons, the actions of both Lincoln and Johnson did not amount to impeachable offenses, then there is no reason why the actions of Trump should. So while the motives of a president alone may not be enough to distinguish unconstitutional abuses of power from legitimate presidential actions, there are some very important differences between Lincoln and Johnson, on the one hand, and Trump, on the other hand.
One is that, because the moves by Lincoln and Johnson were not covert, there could be little doubt as to their origins. Compare this to the effort by Trump to secure a favor from Ukraine through a private emissary, his own personal attorney, operating outside of the normal diplomatic track and in tension with stated national security policy goals. In the end, both Lincoln and Johnson would own their actions in a way that Trump had pointedly sought to avoid. Moreover, neither Lincoln nor Johnson acted illegally.
Another difference is that they did not deliberately implicate a foreign power in domestic matters. One of the real and understated dangers of the attempt by Trump to obtain Ukrainian assistance in his reelection bid is that, had the effort never come to light, the Ukrainians would have had in possession potentially compromising information about the president. Such damaging information could have been used by the Ukrainians as leverage against the president, again covertly, and therefore beyond the ability of the American people to consider in the next general election.
Finally, the argument that Trump simply acted as a politician proves too much. If nearly every policy decision that a president makes has some kind of political implication, which is indeed probably accurate, it is unclear that any action by the president could ever be defined as an abuse of power sufficient to qualify as a high crime or misdemeanor.
Some people view impeachment as “an emergency measure to save the republic in free fall,” as Blackmun claims. But perhaps the Framers did not intend impeachment to sit on the shelf, like a precious umbrella awaiting a rainstorm bad enough to justify its use. Perhaps they understood that the presidency might be assumed by someone unmoored from the traditional limitations that have deterred other Oval Office occupants from illegally scheming to advantage themselves at the expense of the public interest. Perhaps that day has arrived. The Constitution does not say otherwise.
Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”