By Frank Bowman
I read the newly announced articles of impeachment against President Donald Trump from two perspectives – as a student of impeachment and as an old prosecutor. Several things stand out immediately.
First, the choice to frame these articles as abuse of power and obstruction of Congress’s impeachment investigation is sound. Abuse of power has been one of the impeachable “high Crimes and Misdemeanors” of Anglo-American constitutional practice since the 1300s, and it has recent powerful precedent in the case of Richard Nixon. Obstruction of an impeachment investigation was not only the basis of one of the articles voted out of the Judiciary Committee against Nixon, but such behavior may strike even more deeply at the heart of constitutional order than other presidential abuses. If, as is now the case under the Justice Department’s self-imposed rule, sitting presidents may not be indicted, the only check on egregious presidential misconduct is impeachment. And when, as is now the case under the Barr Justice Department, prosecutors decline either to investigate presidential misconduct or to assist in the enforcement of congressional subpoenas, a president who misbehaves and then brazenly stonewalls congressional inquiries becomes an elected king unless Congress can impeach him for his defiance of their authority.
Second, I am very pleased that the Judiciary Committee avoided the temptation to call Trump’s behavior in relation to Ukraine “bribery.” For a period, the term was in vogue among House members, the thought being that it is a freestanding textual basis for impeachment – “treason, bribery, or other high crimes and misdemeanors – and that it would be easier to explain to the average person. But the most obvious lesson of the testimony of the four law professors at last week’s Judiciary Committee hearing was that the definition of bribery for purposes of impeachment is uncertain, and an article on that ground would open an array of technical questions that merely confuse the issue.
Third, I understand the decision not to base any individual article expressly on Trump’s dalliance with Russian election interference in 2016 or the second volume of the Mueller Report relating to obstruction of the investigation into Russian meddling. Although the substance of Mueller’s evidentiary presentation was very strong – the report contains overwhelming evidence of presidential obstruction – the report failed as a persuasive document and Mueller failed as a persuasive witness before the Judiciary Committee. For at least half the public, it’s old news and not sufficient for impeachment.
Moreover, one of the few points on which Judiciary Committee Republicans were correct on Monday was that Democrats are constrained by the calendar. Given that the Senate is deeply unlikely to convict Mr. Trump regardless of the charges brought against him, the task of the House must be to make the best case they can without dragging the trial into the late spring and summer when the country’s attention should properly be on the election. Reviving aspects of the Mueller Report as the centerpiece of a separate article of impeachment would take time – more witnesses, more constitutional explanations – time the Democrats realistically don’t have.
Fourth, considering these articles as if they were charging documents in a criminal case, the Democrats have elected for “notice pleading,” a short, simple description of the charge and underlying conduct. The Nixon articles, by contrast, were what a white collar prosecutor would call a “speaking indictment.” That is, they laid out a story of misconduct replete with many details and many particular bad acts. That was appropriate in Nixon because he was impeached, not for one bad incident, but for a long-running pattern and practice of misbehavior and cover-up. The narrow scope of the case against Trump favors the simpler form.
Finally, both articles nonetheless include language framing Trump’s Ukraine misconduct as part of two larger patterns – “previous invitations of foreign interference in United States elections” and “previous efforts to undermine United States government investigations into foreign interference in United States elections.” These phrases permit House Managers presenting the case in the Senate to bring aspects of the Mueller investigation and related matters into the conversation. On the optimistic assumption that at least some Republican (and wavering Democratic) senators remain persuadable, placing Ukraine in the larger frame of Trump’s persistent malfeasance advances the objective of demonstrating that the Ukraine extortion was not an one-time anomaly, but an exemplar of a pattern of conduct sufficiently serious to merit conviction and removal.