Maria Alejandra Cardona / Reuters

The House Judiciary Committee has published articles of impeachment against President Donald  Trump. Though potentially damning, the particular charges—abuse of power in connection with Ukraine and the 2020 election, and obstruction of Congress—face an unusual evidentiary problem compared with impeachments past. Because there is a plausible legitimate governmental justification for each of the allegations, the impeachers must establish not only that the alleged conduct occurred, but that the president acted for personal gain.  

For most Democrats, Trump’s corrupt intent is so obvious that the proof is everywhere. For most Republicans, however, Trump’s corrupt intent remains the proposition to be proved. (I worked at the White House as the Council on Environmental Quality’s associate director for regulatory reform from 2017 to 2019.) That doesn’t bode well for the impeachers’ hopes of removing the president, because most of the evidence we’re likely to see is already contained in the report of the House Intelligence Committee, which was given the role of fact-finder under the House impeachment resolution. The Judiciary Committee ultimately backed off the theory that Trump had committed bribery, presumably because the evidence of a quid pro quo proved so thin, and abandoned the possible obstruction-of-justice charges suggested in Robert Mueller’s Report on Russian interference. The impeachers have failed to convince anyone who wasn’t already in their camp at the outset.

An early warning of the challenge that would face the impeachers was contained in the second volume of Mueller’s report. There, Mueller notes that the obstruction-of-justice statute requires corrupt intent as an element of the crime, along with obstructive acts in a relevant investigation or proceeding. He notes that corrupt intent can often be inferred from the alleged conduct itself, but where there is a plausible legitimate governmental motive for an official’s conduct, that inference might not be possible. In such cases, the element of corrupt intent must be established separately—a difficult evidentiary challenge. Mueller left the issue of Trump's intent up to Congress.

At a certain level, it is eminently sensible to leave the question of what constitutes “Treason, Bribery, or other High Crimes and Misdemeanors” up to the House and the Senate. At the Constitutional Convention, James Madison objected to including “maladministration”—poor governance—among the causes of impeachment because, he said, that would amount to the president serving at the pleasure of the Senate. But that is precisely where we have ended up, and that’s not a bad thing: The requirement of a two-thirds majority guarantees that removal by the Senate will be not a partisan exercise, but a matter of broad public judgment.

In the current Congress, for example, removing Trump would require the votes of 20 Republican senators (out of 53), assuming all Democrats and independents voted in favor. That’s a high hurdle, but Trump’s support among Republican senators has always been guarded, not to say grudging. Indeed, just count the GOP senators whom the president has publicly insulted or gotten crosswise with at some point and you have nearly half the GOP votes needed for removal. In that sense, Trump is potentially more vulnerable to impeachment and removal than most presidents would be, which should reduce the burden for Democrats.  

And yet the Democrats have failed to carry even this reduced burden. Because Mueller noted there could have been a legitimate motive for most of the possible instances of obstruction, his report left Democrats in the position of having to prove that any benefit of these acts to the president was not merely incidental, but was in fact the purpose of the acts. Faced with that daunting evidentiary challenge, they searched for more promising grounds for impeachment.

No such luck: The grounds they alighted on raise the same evidentiary challenge. Did the president condition aid to Ukraine and a White House meeting with President Volodymyr Zelensky exclusively on a favor that would benefit him personally? Or was the personal political benefit merely incidental to a legitimate government purpose, as happens all the time in every presidency? After all, President Barack Obama’s “hot mic” conversation with Russian President Dmitry Medvedev asking him to “take it easy” on arms control before the 2012 election, and promising a more accommodating U.S. stance toward Russia afterward, was not impeachable, though he was explicitly asking for something that would at least incidentally benefit him in the upcoming election.

It has not been clearly established that Trump was seeking personal gain. What the president specifically asked for in the July 25 phone conversation with Zelensky (“I would like you to do us a favor, though …”) was information concerning allegations of Ukrainian meddling in the 2016 election on Hillary Clinton’s behalf, and into the energy firm Burisma, where Joe Biden’s son Hunter had been given a lucrative board seat.

Trump was at least nominally asking for these things on behalf of the U.S. government (“do us a favor”) to be handled through official channels. “Whatever you can do with the [U.S.] attorney general would be great,” Trump said. “Biden went around bragging that he stopped the prosecution, so if you can look into it ... It sounds horrible to me.” Of course, Biden was bragging about getting a corrupt prosecutor fired, not about ending a prosecution that he appears to have had no knowledge of. Even so, the whole thing sounds horrible to a lot of people, and investigating the matter could have been a perfectly legitimate condition for aid to Ukraine. Unlike Obama, Trump never even mentioned the coming election.

The hearings in the House Intelligence Committee started strong. The testimony of Ambassador Bill Taylor went a long way toward establishing that the Trump administration made it a priority to enlist Ukraine’s help with respect to the investigations into possible election meddling, and into Burisma, and thereby into the Bidens. Taylor provided compelling testimony that other (legitimate) considerations were segregated and suppressed—a key element of any viable case against Trump relating to Ukraine.

Taylor’s testimony was an eye-opener. It finally made clear why the White House was so insistent that “there was no quid pro quo,” a defense that had previously baffled many Trump supporters, considering that all international relations are transactional and hopefully benefit the president politically. But if the impeachers could establish that the only consideration on which the foreign aid (or the White House meeting) rested was something of personal benefit to the president, then the president might be left with only one last line of defense: namely, the claim that there was no quid pro quo. In October, Republican Senator Lindsey Graham said that if Trump “actually was engaging in a quid pro quo,” he might be swayed in favor of impeachment; Republican Senator John Kennedy said the case would “come down to the president’s intent,” and that if he had acted solely for personal benefit, that would be impeachable.

Republican Senator Ron Johnson, however, has recounted a contemporaneous conversation he had with the president about the administration’s apparent hesitation to approve the aid for Ukraine, in which the president complained about Ukraine’s endemic corruption, about how much money America spends on foreign aid in general, and about how the Europeans should do more to deal with problems like this. This narrative, for which there is substantial evidentiary support, strikes most Republicans as a perfectly reasonable explanation for the alleged conduct.

To appreciate why this defense is so effective, consider how different the situation would be if the president had conditioned aid on Ukraine’s approving a new Trump Hotel in Kyiv. There could be no legitimate motive for that. If established, the fact itself would be evidence of corrupt intent, since, unlike the Burisma request, approving a new Trump Hotel in Kyiv could only inure to the president’s personal benefit. There would be a “jailbreak” in the Senate, just as happened to Nixon when the content of the “smoking gun” tapes was revealed, and Trump would be finished. But because Trump’s request could serve long-standing U.S. policy goals, corrupt intent cannot be inferred from the conduct itself, even if the president was seeking something that might be of personal political benefit.

From Republicans’ point of view, the impeachers’ strongest case against Trump depended on establishing a quid pro quo for something of purely personal benefit to the president—in other words, bribery. Perhaps a quid pro quo could be inferred from the phone call, but the Democrats sought to establish that a more explicit one had been communicated through intermediaries. Yet none of the key intermediaries—Ambassadors Taylor, George Kent, Gordon Sondland, and Kurt Volker—testified that they had been instructed by the White House to condition aid on Ukraine’s investigation of Burisma. Sondland later amended his deposition to clarify that “in the absence of any credible explanation for the suspension of aid, I presumed that the aid suspension had become linked to the proposed anti-corruption statement.” But that presumption, as Representative Mike Turner pointed out in questioning him, does not even rise to the level of hearsay. The president appears to have wanted the government of Ukraine to announce corruption investigations, including into Burisma and alleged 2016 election meddling. But none of the star witnesses testified to direct knowledge that this request was ever made part of a quid pro quo for military aid.

Bereft of the evidence that the impeachers most fervently hoped for, the articles state that the president “sought” to condition the aid on a quid pro quo, but ultimately stop short of claiming that he did indeed condition the aid in this way. Thus the impeachers’ strongest potential charge against the president—bribery—collapsed, and the House Judiciary Committee ultimately abandoned it in favor of “abuse of power,” the malleability and generality of which create further problems of proof.   

The Democrats argue that asking a foreign government for help in an election is in and of itself an abuse of power, regardless of any quid pro quo. In the two sections of Committee Chair Adam Schiff’s report on Trump’s inviting foreign interference in the 2020 election, however, there is not so much as an unsupported allegation that Trump, or anyone else in the administration, explicitly invited Ukraine to interfere. Witnesses testified that the White House had asked Ukraine to publicly announce the reopening of an investigation into matters that could include the Bidens and a potential conflict of interest that had concerned the Obama administration as early as 2015. Beyond that what we have, as in much of the testimony on Ukraine, is senior (mostly career) officials making lots of inferences and pointing fingers at one another, and virtually no witness pointing a finger at the president. Reopening the investigation might have benefited the president politically, but there was no testimony to the effect that U.S. interests wouldn’t also be advanced, so there is little to support the articles’ assertion that Trump “ignored and injured the interests of the Nation.”

The articles of impeachment also charge Trump with obstruction of Congress for his refusal to comply with congressional subpoenas. In a dear-colleague letter last week, Schiff wrote, “We will be forced to infer from this obstruction that the testimony of these witnesses would tend to incriminate the President further since he would have encouraged—rather than blocked—the testimony of senior officials … if he believed it would somehow be helpful.”

That is an astonishingly inappropriate inference. Presidents of both parties have refused to comply with congressional demands—even if it might have been politically expedient to comply—because they didn’t want to establish precedents that would further erode the separation of powers, and it is the job of any White House counsel to advise the president to refuse any such demand. In United States v. Nixon, the case that sealed Nixon’s fate, the Supreme Court acknowledged that separation-of-powers concerns and the need to preserve confidentiality of high-level communications can be the basis of an assertion of executive privilege, especially with respect to military, diplomatic, or national-security secrets.

The impeachers’ refusal to acknowledge even the possibility of executive privilege, and their apparent assertion of an absolute right to subpoena all executive officials and documents under the “sole Power of Impeachment” vested in Congress by the Constitution, has thrown away whatever chance they might have had of persuading Republicans to back an obstruction-of-Congress charge. Giving effect to so broad a reading of the impeachment power would allow the House of Representatives to superintend all executive-branch operations under cover of impeachment proceedings that could theoretically last for years. That is out of the question.

Ultimately, both articles of impeachment depend on establishing that the president acted with corrupt intent. Democrats insist that Trump’s corrupt intent is obvious. And it is obvious—to them. But it isn’t obvious to the Republicans whose votes are required for removal by the Senate. Many Democrats are claiming that the evidence they have already produced amounts to a smoking gun. But if that were the case, then public opinion and the president’s party would be turning against him. Yet polls show no increase in support for impeachment since the start of the hearings.

Compared with prior impeachments, the allegations against Trump since early 2017 have been so infinite in their variety as to make specificity almost beside the point. Readers of The Atlantic have read claims that the president is guilty of colluding with foreign governments for his personal benefit; that he has been accused of serial sexual assault and sexual harassment; that he has abused the powers of his office in general, violating the separation of powers, the rule of law, and civil liberties; that he has inflamed America’s divisions; that he has used his office for personal profit or routinely privileged his self-interest above its responsibilities; that he is guilty of systematic obstruction of justice, of trying to suppress the free media, and of using the powers of his office to attack political opponents; that he is a racist; and that his behavior is consistent with a variety of psychiatric disorders, including narcissistic personality disorder and even sociopathic heartlessness.

Most of the particulars offered in support of these assertions are highly debatable, and it’s no accident that virtually none of them has come up in the current impeachment hearings. The sole exceptions are the Ukraine call, its inevitable obstruction pairing, and possible obstruction in the Mueller probe—each of which requires evidence of the corrupt intent for which it is being proffered in evidence.

Consider how different the case was against Nixon. From the start of the impeachment push in 1973, there were allegations that the president was somehow connected to the Watergate burglary, was actively engaged in covering it up, and was using the CIA and clandestine tactics to both stymie the investigation and harass political opponents. If any of the allegations were true, Nixon was finished. But many Republicans in Congress simply didn’t believe them—at first. Then a smoking gun finally emerged: the secretly recorded audio tapes. With conclusive proof that the allegations were true, public support for the president nosedived, there was the “jailbreak” among Senate Republicans, removal became inevitable, and the president was forced to resign.

Quite a different situation faced Bill Clinton. In that case, nobody was particularly surprised by the allegations. Even evidence that the president might have committed perjury and obstruction of justice—felonies—failed to move the needle. Most Democrats felt that Clinton had been cornered into doing whatever it was he had done by an unfair and politically motivated investigation into matters that were really none of anybody’s business. Yes, the president was a scoundrel, but he was a scoundrel with a kind heart, of a sort that Americans love in the movies. Democrats and more than a few Republicans seemed to hope that he would get away with it, like a real-life Daniel Ocean.

In contrast with both Nixon and Clinton, Trump isn’t denying the basic allegations. Indeed, he continues to think that he acted within the bounds of legality, if not perfectly appropriately, at all times, and most Republicans agree.

Perhaps the strongest argument for launching the impeachment proceeding was made in this magazine more than six months ago, when Yoni Appelbaum argued that it would “bring the debate about Trump’s fitness for office into Congress, where it belongs.” Impeachment certainly can accommodate the general charge of unfitness for office. But it seems that the more general the case for impeachment, the more important it is to have public consensus for impeachment at the outset, and the less the impeachment proceedings themselves matter. Conversely, the more specific the charges, the more process and evidence matter. Either way, the Democrats appear to have moved too soon.

The House Democrats launched the impeachment proceedings because of their unshakable conviction that the president is corrupt and unfit for office. But that is just a character judgment, and Republicans don’t share it. After nearly three years, even some Republicans who were originally “Never Trump” seem to have concluded that despite his flaws, the president is basically a well-intentioned person trying to do what’s right for the country, and, whatever his flaws, they are far from the ghoulish caricature of Democrats’ imagining. To convict, Republicans will need more than the thin allegations and even thinner evidence the Democrats have to show for their three-year-long exercise in phantasmagoria.   

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

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