The White House letter



By Frank Bowman

In an article first published on “Just Security” (link here) and then in Slate (link here), I address the letter from White House counsel Pat Cipollone announcing a policy of complete non-cooperation with the House impeachment inquiry. Suffice it to say, I find the letter’s reasoning wholly unsupported in law, history, or logic.

Trump’s Betrayal of American Foreign Policy and Why the Founding Fathers Would Have Impeached Him



This semester, I have the pleasure of teaching a seminar titled, “The Impeachment and the American Constitutional Balance” at Georgetown Law School. From time to time, I may post the work of some the students in that seminar. Here is one such contribution. — F. Bowman

By Hamdi Soysal

            Based on the number of House Democrats in favor of an impeachment inquiry,[1] President Donald J. Trump will likely be the third president to be impeached in American history, barring unforeseen circumstances. What united the Democrats behind impeachment – more than the Mueller Report, illegal hush money payments to a pornstar, or his alleged violations of the Emoluments Clause – was the President’s request from Ukraine to investigate one of his potential rivals in the 2020 election.[2]

            There are many reasons why the Ukraine affair is unworthy of the Office of the President of the United States. One is its blatant compromise of the nation’s foreign policy and consequently, national security. The favor the President asked for in his now-infamous call with the Ukrainian President Zelensky was not closer cooperation against U.S. adversaries, more intelligence-sharing, or participation in a foreign policy that would make the U.S. safe. It was help with his reelection.[3]

            Although in a different context, the possible betrayal of American foreign policy for personal gain was in the minds of the Founding Fathers while defining impeachable offenses at the 1787 Constitutional Convention in Philadelphia. On the way to their confining those offenses to “Treason, Bribery, [and] High Crimes and Misdemeanors,”[4] James Madison said impeachment is required because the president “might betray his trust to foreign powers.”[5] Similarly, he argued at the Virginia ratifying convention that a president who made a treaty that “violated the interest of the nation” could be impeached.[6] At the same convention, Edmund Randolph said a president “may be impeached” if discovered “receiving emoluments from foreign powers.”[7] 

            The framers’ concerns with undue foreign influence were not limited to the impeachment context. One measure they enacted was the aforementioned Emoluments Clause,[8] over which the Second Circuit recently revived a lawsuit against Trump.[9] Moreover, in his farewell address, George Washington mentioned the “insidious wiles of foreign influence,” deeming it “one of the most baneful foes of republican government” and urging the nation “to steer clear of permanent alliances with any portion of the foreign world.”[10] Likewise, in a 1787 letter to Thomas Jefferson, John Adams wrote that he understood Jefferson’s apprehension of “foreign Interference, Intrigue, Influence.”[11] Concerned about corruption in the political system, Adams argued that America should not conduct elections often, because “as often as Elections happen, the danger of foreign Influence recurs.”[12] Similarly, Alexander Hamilton wrote in his Federalist Paper Number 68 about the dangerous desire of foreign powers to “gain an improper ascendant in our councils.”[13] 

            The Founders could not have been clearer: there should be no foreign interference in the American democracy, and no president should be urging such interference. As some legal scholars opined, using the Office of the President of the United States for personal political benefit fits both the standard understandings of bribery and the broader category of high crimes and misdemeanors.[14]

            However, the same Founders who repeatedly warned about the danger of foreign interference in elections and the corruptibility of the president by foreign influences also gave the president authority over most aspects of foreign affairs. The Founders gave Congress the power to declare war, raise armies and provide for other aspects of national defense,[15] but it is the president who appoints ambassadors, negotiates treaties, and deals with other heads of state.[16]

            This raises a conundrum: Does the discretion granted to the president in the realm of foreign affairs mean that he should not be as vulnerable to impeachment over a situation like the Ukraine affair? One answer to this could come from the constitutional law of separation of powers. Although not in response to an impeachment setting, in his famed concurrence in the seminal Youngstown Sheet & Tube Co. v. Sawyer case, Justice Robert Jackson laid out three categories of presidential authority vis-à-vis Congress.[17] The first category is “when the President acts pursuant to an express or implied authorization of Congress,” he explained.[18] Under this category, “his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.”[19] The second category is “[w]hen the President acts in absence of either a congressional grant or denial of authority.”[20] In this case, Justice Jackson opined that “there is a zone of twilight in which he and Congress may have concurrent authority…”[21] Ultimately, when a president acts amid silence from Congress, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.”[22] Lastly, a president could take measures incompatible with the express or implied will of Congress. Then, the president’s power “is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter,” Justice Jackson explained.[23]      

             The level of authority President Trump has with respect to the withholding of anti-tank missiles from Ukraine thus in part depends on Congress’s implied or expressed will – or the lack thereof – concerning the matter. When viewed through this lens, it becomes clear that the Ukraine affair falls under Justice Jackson’s third category, where a president could take measures incompatible with the will of Congress and his power “is at its lowest ebb.”[24] Before President Trump’s call with Zelensky, the military aid to Ukraine had already been appropriated with “broad bipartisan support” in Congress.[25] The issue was a “rare foreign policy issue that united members of both parties.”[26] Capitol Hill largely viewed support to Ukraine as a way to deter Russian aggression and secure the region.[27] Based on recent reports, it bothered many in Congress that “the money was being held up without a clear explanation or briefings about a changing policy prescription in the region.”[28]

            The bipartisan reaction in Capitol Hill to President Trump’s withholding of military aid to Ukraine for reasons unbeknownst to them is a good indication that the President acted against the will of Congress. Thus, no matter the discretion granted to the executive in foreign affairs, his authority at the time was at its minimum. In other words, even the ample authority the President has with respect to foreign policy would not be enough to save him from being impeached. If they were here to see the President’s blatant betrayal of the nation’s safety and security, the Founders would definitely agree. 

[1] Alicia Parlapiano et. al., Complete List: Who Supports an Impeachment Inquiry Against Trump (Oct. 3, 2019, 11:00 AM),

[2] Transcript of Phone Call Between Presidents Donald Trump and Volodymyr Zelensky, (July 25, 2019, 9:03 AM),

[3] Id.

[4] U.S. Const. art. II, § 4.

[5] 2 The Records of the Federal Convention of 1787, at 66 (Max Farrand ed., 1911).

[6] 3 Jonathan Elliot, The Debates in Several State Conventions of the Adoption of the Federal Constitution 346 [hereinafter 3 Elliot] (statement of James Madison).

[7] 3 Elliot, supra note 3, at 326.

[8] U.S. Const. art. I, § 9, cl. 8.

[9] Zoe Tillman,  A Court Revived Another Lawsuit Against Trump For Continuing To Profit From His Businesses (Sep. 13, 2019, 10:41 AM),

[10] President George Washington, Farewell Address to the People of the United States (1796).

[11] Letter from John Adams, United States Minister to the United Kingdom and Netherlands, to Thomas Jefferson, United States Minister to France (Dec. 6, 1787).

[12] Id.

[13] The Federalist No. 68 (Alexander Hamilton).

[14] Leah Litman, Trump’s Ukraine call mentioning Biden is the strongest reason yet for impeachment (Sep. 24, 2019, 5:45 PM),

[15] U.S. Const. art. I, § 8.

[16] U.S. Const. art II, § 2.

[17] Youngstown Sheet & Tube Co. v. Sawyer (The Steel Seizure Case), 343 U.S. 579, 635-38 (1952) (6-3 decision) (Jackson, J., concurring).

[18] The Steel Seizure Case, 343 U.S. at 635.

[19] Id. at 635.

[20] Id. at 637.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Lauren Fox, Stalled Ukraine military aid concerned members of Congress for months (Sep. 30, 2019, 10.30 AM),

[26] Id.

[27] Id.

[28] Id.

A video explainer from the Wall St. Journal

By Frank Bowman

Those who would like to see an elegant video explanation of the fluidity of the standard for impeachable conduct should watch this piece created for WSJ Video by Jason Bellini. Mr. Bellini was kind enough to make me his on-camera “expert” on impeachment.

The impeachability of the Trump-Ukraine contacts: Long form argument

By Frank Bowman

In an earlier post on this site, I expressed my view that Mr. Trump’s interactions with the Ukraine constituted an impeachable offense. The good people at “Just Security,” the premier venue for discussion of law and national security issues, asked me to lay out the complete case for this position. I was pleased to oblige. Those interested can find it at this link

Does the House have to pass a resolution before impeachment inquiry is official?


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By Frank Bowman

Andrew Feinberg of the UK-based Independent just wrote a nice piece on White House preparations and strategy for the coming impeachment fight. He was kind enough to ask me about the argument one commonly hears from the President’s defenders that a really, truly official impeachment inquiry can’t happen without passage of a resolution by the full House of Representatives officially authorizing an inquiry.

Impeachment is one of the powers specifically granted to the House by the Constitution. Article I, Section 2, says, “The House of Representatives shall have the sole power of impeachment.” Article I, Section 5, further states that, “Each House may determine the Rules of its Proceedings.” In sum, the House has plenary authority to conduct impeachments and to set its own rules for doing so.

Nothing in the House rules requires that a resolution be passed before the full House or any committee in it can take steps to exercise the impeachment power. In this respect, impeachment is no different than any other constitutionally-authorized power of the House.

As I told the Independent, the House “doesn’t need to pass a resolution to start [an impeachment inquiry] any more than they need to pass a resolution to engage in appropriations activity.”

One can expect Mr. Trump’s defenders to raise a variety of other “due process” type arguments in the coming weeks and months. This is normal in presidential impeachments. The president’s people nearly always want to slow the process down, and always, quite understandably, want to maximize their opportunities to present the president’s case. Moreover, those seeking impeachment will, almost always, want to be fair, and always will want to be seen to be so. So the tendency is to afford the president and his defenders plenty of chances to air their case and make their arguments.

Still, there is no way the president can force the House to proceed in any particular way. Again, the House has the sole power of impeachment and of making its own rules. More importantly, the question of what procedures the House must use is almost certainly, as we lawyers say, non-justiciable. Which means that, despite what Mr. Trump seems to think, he can’t appeal to the courts on either the substance of articles of impeachment or the procedures the House used to produce them. History makes clear that all such questions are within the control of the House itself.

In 1868, President Andrew Johnson fired Secretary of War William Stanton, the act that triggered his impeachment, on February 21. As I told the Independent, “Three days later, the House voted 168-47 to impeach the President. There’s some due process for you.”

To read the Independent article, see this link

“On the cover of the Rolling Stone…”

By Frank Bowman

I had the pleasure of giving a pretty full exposition of my thinking about how the Trump-Ukraine revelations fit into the history and practice of impeachment in an interview with Rolling Stone.

Read the interview at the link below…

Why is Trump’s interaction with Ukraine so bad?


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By Frank Bowman

My new friend (and landlord when in D.C.), Shikha Dalmia, of the Reason Foundation and columnist for “The Week,” asked me to explain why it should matter constitutionally that Mr. Trump may have used his powers over domestic law enforcement, military affairs, and foreign diplomacy to obtain negative information on Vice President Biden and his son. This was my best effort at a response:

The essence of impeachable abuse of power is using a power legitimately granted by presidential office for an illegitimate purpose.  The most common illegitimate purpose is using official authority to promote one’s private interests. 

In authoritarian states like Putin’s Russia, it may be seen as normal for a leader to use state power to ensure his continuation in office. In this country, we consider a president’s interest in getting re-elected to be a private, rather than a public interest. Therefore, although we understand that presidents, and all elected officials, will have an eye on public reaction and thus their political prospects when they exercise the powers of office, it remains profoundly improper – un-American I might even say – for a president to leverage his official power to disadvantage political opponents.          

This is particularly so in the case of investigations of supposed criminal wrongdoing.  One of the hallmarks of what we Americans loftily call “banana republics” is the tendency of each incoming administration to bring criminal charges against leaders of the outgoing administration.  Leaving aside the fact that such charges are often (pardon the term) trumped up, the danger is that the stakes of losing become too high. That is, good people won’t enter political life because the risks are too great.  Those who do shortly realize that the price of losing an election could be financial ruin or even prison.  Thus, they are tempted to go to any extreme to win, and so avoid the awful results of losing.

When we talk proudly about our uninterrupted history of peaceful transfer of power, we are referring not only to the absence of military coups or violence in the streets, but to the fact that public officers lose elections and go quietly back to private life, unmolested by the organs of the state.           Trump’s misuse of power here is dreadful for two reasons:    

First, he is trying to drag us into the abyss of political investigations and prosecutions that could destroy the essential, and widely admired, character of our politics.  Second, the threat he employed to pursue dirt on VP Biden and son was to withdraw American support from a vulnerable country on the edge of an expansionist Russia. Doing so is not only immoral, but subverts the 70-year bipartisan consensus that peace and stability in Europe requires containing any expansionist tendency of the Russians.

These are matters of the utmost seriousness. No American of either party can afford to dismiss them.          

An illustrative hypothetical…


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By Frank Bowman

This semester, I have the pleasure of teaching a seminar titled “Impeachment & the American Constitutional Balance” one day per week at Georgetown. I have a group of first-rate students who will be writing about a variety of impeachment-related topics throughout the semester. Sometimes, I’ll post their work here.

In yesterday’s class we talked about the historical definition of “high crimes and misdemeanors” and then turned to the week’s revelations about Mr. Trump’s contacts with Ukraine.

Max Lesser posed the following hypothetical, which readers may find thought-provoking:

It’s 2012 and President Obama is running against Mitt Romney. Obama has just “lost” the first presidential debate, and his re-election campaign looks to be in trouble. Obama has noticed his attacks on Mitt Romney having off-shore bank accounts in the Cayman Islands seems to be having an effect, however, and a plan is hatched.

The Cayman Islands have just been hit by a hurricane and are desperate for aid and relief. President Obama unilaterally directs his Chief of Staff to freeze $400 million in aid to the Cayman Islands. President Obama calls the Prime Minister of the Cayman Islands, who immediately requests the aid they desperately need and have historically received. Obama tells him the U.S. has been very good to the Cayman Islands in the past, better than any other country. The relationship hasn’t been, reciprocal, however, and the President needs a “favor.” He says the Prime Minister should look into the Romneys’ holdings in the Cayman Islands, especially his son Tagg, who appears to be cashing in on his father’s name. This is because President Obama is concerned about “corruption.” Nothing to do with re-election. 

Obama tells the Cayman Islands PM to coordinate with his Attorney General Eric Holder and his non-government employee private attorney, Michael Avenatti, who has been the main point of contact this far. He says they will be in touch. The Cayman Islands PM realizes he will have little choice but to bend to these demands.

Obama administration staff, realizing the transcript of this call is likely criminal and at a minimum extremely problematic, violates protocol to store the conversation in safes meant for critical national security interests. A whistleblower comes forward to expose these actions, and the administration releases a transcript of the call that confirms the allegations. 

A day later President Obama implies the whistleblower is a “spy” who should be treated the way we did in the “old days.” I.E. He appears to be obviously implying the death penalty. 

How do you think the Republican House of Representatives will respond? 

If Trump’s Ukraine contacts aren’t impeachable, nothing is


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By Frank Bowman

Today, on, I expanded on my conclusion of two days ago that Mr. Trump should indeed be impeached. You can read my comments at this link —

I’ve also inserted the text of the piece below:

(CNN)The White House released a rough transcript Wednesday of a July phone call between President Trump and Ukrainian President Volodymyr Zelensky, indicating that the President pressured a foreign leader to gather dirt on a political opponent.

As a result, we now have facts quite distinct from any that have come out about this President before — and the strongest, or at least most easily explainable, case for impeachment to date.

The allegations at the heart of special counsel Robert Mueller’s investigation into Russia’s interference in the 2016 election concerned Trump’s conduct while he was a candidate for office. There is good authority from the founding era that an effort to corrupt the electoral process ahead of an election might be impeachable. For example, at the 1787 Constitutional Convention, both George Mason and Gouverneur Morris observed that a president who “procured his appointment” by corrupting the electors must be impeachable.

But since impeachment is at its core about a president’s misuse of office or suitability to hold it, pre-inauguration conduct at least raises a tricky question. Whatever happened with the Russians during the 2016 election, Trump wasn’t then in a position to use the organs of the American state to encourage foreign interference.

Trump’s attempts to pressure Ukraine to investigate former Vice President Joe Biden, on the other hand, happened after Trump became President and had sworn an oath to faithfully execute his office and “preserve, protect, and defend the Constitution of the United States.”

With Russia, the most that can be said is that Trump expressed a willingness to receive political help from a hostile foreign power. Mueller could not prove there had been direct contact between the Trump campaign and Russian officials to coordinate that help. It remains troubling, if not impeachable, that the help was nonetheless delivered in the form of leaks and a social media misinformation campaign aimed at Trump’s opponent.

There are three key differences between the Russian and Ukrainian situations that should affect the impeachment debate.

One: This week, it has been revealed that Trump personally spoke with a foreign head of state and directly asked for a foreign government to probe for negative information about a possible presidential opponent. In other words, Trump’s call with President Zelensky may well constitute the very thing Trump denied throughout the Mueller investigation: “colluding” with a foreign power for personal electoral advantage.

Two: The fact that Ukraine is not a powerful traditional adversary, like Russia, makes the case worse in several ways. It means that Trump was not asking a geopolitical equal for help; he was demanding help from a weakened country situated on the border of an increasingly aggressive Russia; a country part of whose territory has already been illegally annexed by Russia, and whose continued survival as an independent nation depends on military, economic and diplomatic support from the United States and its European allies in NATO. How can the request of “a favor” from the American President to such a country be understood as anything but an extortionate demand?

Three: Ever since the British invented impeachment in the 1300s, abuse of official power for personal gain has been on the short list of undeniably impeachable offenses in Great Britain and the United States. The second article of impeachment approved by the House Judiciary Committee against President Richard Nixon charged him with abuse of power. Nixon misused his domestic authority as President to get dirt on his political foes, and then used the powers of the federal government to try to cover it up.

But Nixon’s conduct was penny-ante compared to Trump’s. Trump didn’t cover up a second-rate burglary by a group of inept “plumbers” looking for dirt on Democrats. Rather, he appears to have wielded the entire economic, military and moral authority of a great nation to, effectively, extort another democratically elected head of state.

Leaving aside the question of impeachment, this episode must count as one of the most discreditable things any American President has ever done. Prior Presidents have been cruel or mean-spirited, bigoted or shortsighted, and sometimes exercised terrible judgment. And every President makes decisions with at least one eye on the political consequences. But I know of no comparable case where a President baldly, consciously misused the power of the whole nation for his own purely private political benefit, without even a credible claim that it was in the national interest.

If what Trump did here isn’t impeachable, nothing is.

Impeach Donald Trump


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By Frank Bowman

I haven’t been blogging for a longish time. That’s partly been due to frantic scuttling about attending either to personal life or the opportunities to communicate through other media occasioned by the recent publication of my book. Part of the radio silence must also be put down to fatigue — simple inability to tabulate and maintain a suitable level of outrage at Mr. Trump’s endless assaults on constitutional propriety. At a certain point, the parade of offenses is so relentless that the man just wears you down.

But now I have to shake off my lethargy. We all do.

What Trump has now admitted about his contacts with the Ukrainian President is – by every textualist, originalist, historical, living constitutionalist, or commonsense standard – impeachable. Full stop. I’ll expand on that in later posts.

For today, I worry about two things, but come to one long-delayed conclusion.

First, Trump and his abettors in Congress, Fox News, and far-right echo chamber are already turning this into a story about supposed corruption of Vice President Biden and his son. To 30-40% of country, that will stick, regardless of the facts. See Benghazi.

Second, regardless of the facts, the law, and the applicable ethics-in-government rules, Hunter Biden’s choice to take a seat on the board of Ukrainian conglomerate Burisma Holdings looks bad. Legal or not, one would have to be blind not to suspect Hunter Biden’s major asset from Burisma’s point of view was his father’s position. Perhaps Joe couldn’t have stopped his boy from cashing in this way. Any father with a wayward son will understand the limits of that endeavor. But Hunter’s opportunism now unavoidably taints the Biden family as akin to the Clintons – congenitally unable to resist trading on their public position for money.

That’s desperately unfair to Vice President Biden. Whatever he is, he’s not a grifter. But fair or not, it means that both the looming impeachment battle and perhaps the 2020 election will be ugly mudfights comparing the real corruption of Trump & Co with supposed corruption of the Bidens.

It all makes me inexpressibly weary and sad. But I no longer think a real, to-the-knife, impeachment fight can be avoided. Trump has unapologetically admitted that he used the power of the presidency to secure help from a foreign power against a political rival. Constitutionally, he has shot someone in the middle of 5th Avenue. And he’s daring Congress and the rest of us to do something about it.

So, at last, I come to the point I have avoided for many months. Since starting this blog, I’ve contented myself with parsing the constitutional text and the historical evidence to distinguish between presidential behavior that could fairly and soberly be deemed impeachable and other behavior that, however distasteful, could not. But until today, I have never expressed an opinion about whether Congress should do what Mr. Trump’s misconduct has long given it the constitutional authority to do.

AS OF TODAY, here’s what I believe: If we love this country, we must take up the gauntlet Donald Trump has sneeringly thrown down. We must insist that the House stop its cautious minuet — one step forward, two back, and a hop step to the side — always hoping to be seen as doing something while never actually getting anywhere much at all.

We must insist that the House immediately hire the necessary staff to do a proper, comprehensive, speedy impeachment inquiry. We must demand that it move expeditiously to prepare and vote on articles of impeachment once that inquiry has winnowed the possible offenses down to those that are most serious and most readily provable to the public and at the bar of Senate.

We must insist that the Senate face its own reckoning. Mitch McConnell will no doubt attempt to shield Republicans from the unpleasantness of choosing between political expediency and their country’s honor and safety. But I think, in the end, he will not succeed. Both courage and principle are in short supply in the American Senate in these degenerate days. And conviction of Trump in the Senate remains vanishingly unlikely. But I do not believe McConnell can prevent at least a public vote. And I am no longer convinced, if I ever was, that forcing Republicans to choose is even bad politics.

In any case, there comes a time when nice calculations of political advantage simply cannot matter any more. This is such a time. If the House of Representatives will not at least try to use the tools the Constitution provided for the emergency of an ignorant, mendacious, bullying, demagogic, would-be autocrat, it abandons even the pretense of being a consequential participant in American republican government. If the House will not even risk labeling Trump’s brazen abuses of power as the constitutional high crimes they are, what future is there for representative democracy?

It falls to the rest of us to help our timorous leaders screw their courage to the sticking place. It falls to us to demand that now — at long, long last — Donald Trump must be impeached.