Keep your eye on essential facts in the unfolding impeachment circus

Keep your eye on essential facts in the unfolding impeachment circus
© Greg Nash

The facts supporting President Donald Trump’s impeachment are simple and not subject to serious debate. Ambassador William Taylor laid them out in his opening remarks at his closed-door deposition taken on Oct. 22 in the Capitol, the transcript of which is now public. 

Ambassador Taylor’s opening remarks are worth reading. For those who want to see the testimony live, tune in today. There will, of course, be testimony from other witnesses in the public phase of the House of Representatives’ impeachment investigation. You can bet the investigation will unfold with plenty of partisan wrangling and much name calling.  

Don’t be distracted by the political circus. Keep your eye on the facts and the real constitutional questions those facts pose.   

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The essential fact is that the president of the United States used the power of his office and almost $400 million of foreign and military aid appropriated by Congress for the defense of Ukraine in its war with Russia in an attempt to pressure the president of Ukraine to conduct an investigation of a political opponent, former vice president Joe BidenJoe BidenThe Hill's Morning Report - Sponsored by AdvaMed - House panel expected to approve impeachment articles Thursday Democrats seek leverage for trial Democrats spend big to put Senate in play MORE, in an ongoing presidential election campaign. It is also a fact that, although the aid to Ukraine was placed on hold for about two months, it was released in September. Finally, it is a fact that Ukraine has not investigated Biden, his son Hunter, or the Ukraine energy company Burisma as a result of President TrumpDonald John TrumpThe Hill's Morning Report - Sponsored by AdvaMed - House panel expected to approve impeachment articles Thursday Democrats worried by Jeremy Corbyn's UK rise amid anti-Semitism Warren, Buttigieg duke it out in sprint to 2020 MORE’s conduct. 

What we don’t know is what would have happened if the whistleblower had not blown the whistle. These facts will not change.    

What do they mean for President Trump’s potential impeachment? Let’s start with Article II, § 4 of the Constitution: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Setting aside whether the president’s conduct might amount to a crime, the more pertinent constitutional question is whether his conduct falls into the category of a “high crime and misdemeanor.” That term was borrowed by the Framers from English law. It is widely accepted by historians and constitutional scholars that it applies to criminal and non-criminal conduct.

Writing in Federalist 65 in 1788, Alexander Hamilton, who was at the Constitutional Convention and signed the founding document, described impeachable conduct as “an abuse or violation of some public trust … [relating] chiefly to injuries done immediately to society itself.”  

The Founders likely would have viewed President Trump’s attempts to involve a foreign power in our most sacred of domestic affairs, the election of a president, as a significant breach of the public trust. This is especially true since, as leaders of a fledgling country, they were paranoid about foreign interference in the new republic’s internal affairs. For example, in his famous 1796 farewell address, President George Washington wrote that “[a]gainst the insidious wiles of foreign influence … the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.” 

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It is likely that the House will agree with the Founders and impeach the president. 

The more difficult decision is the one potentially facing the Senate: Does the president’s impeachable conduct warrant removal from office? As reflected in the requirement of a two-thirds majority to convict, the Framers viewed removal as an extreme measure, a last resort constitutional check on abuse of power by a president between elections. And, indeed, presidential impeachment has been rare. Only two presidents, Andrew Johnson and Bill Clinton, have been impeached by the House. Both were acquitted by the Senate. Richard Nixon came very close to being impeached, but he resigned after a strong bipartisan vote on articles of impeachment by the House Judiciary Committee spelled certain impeachment in the House and likely conviction in the Senate.  

We should also remember that impeachment is not a referendum of the voters. They make their decision every four years at the ballot box. The impeachment process is a constitutional check-and-balance given solely to Congress between elections. Thus, while congressional politicians should be attuned to the views of the electorate, they should strive to make their decisions based on a sober, dispassionate assessment of the facts in light of the constitutional standard. They should weigh the seriousness of the President’s conduct, assess what it says about the president’s character, and make a judgment about the risk his continued service in office poses for the well-being of the republic. 

This is a heavy lift for our politicians and the Framers knew it. As Alexander Hamilton warned in Federalist 65: “[In impeachment] cases there will always be the greatest danger, that the decision will be regulated more by comparative strength of the parties than by the real demonstrations of innocence or guilt.”  

We need to demand more than partisan politics from Congress in the weeks ahead.  

Scott S. Barker is senior counsel at Wheeler Trigg O’Donnell LLP in Denver, Colo., a veteran with service as a military intelligence officer, and a fellow of the American College of Trial Lawyers. He has authored two books on impeachment: “Impeachment A Political Sword” (2018) and “The Impeachment Quagmire: Military Intelligence Officer Turned Attorney Unravels Mueller Report” (2019).