When the Facts Are Not Debatable
The House’s two charges against Trump get right to the point, are easy to prove, and precisely describe the threat the president poses to American democracy.
About the author: Kimberly Wehle is a professor of law at the University of Baltimore. She is the author of the book How to Read the Constitution—And Why.
Tomorrow, the House Judiciary Committee is expected to vote on two proposed articles of impeachment against President Donald Trump. One article accuses him of abuse of power, the other of obstructing Congress. When the House leadership released the articles, there was plenty of grumbling about how short the list was, given the ample evidence of other Trumpian excesses—including the obstruction of justice by the president in connection with Special Counsel Robert Mueller’s investigation.
Yet two articles of impeachment are enough to describe how Trump has worked to undermine the American system of government. If approved by the House, they will concisely pose a question to Republicans: Which of these destructive acts are you willing to excuse? If Trump isn’t removed on the basis of these two charges—which is a virtual guarantee, given the Republican majority in the Senate—our representative democracy is in serious trouble. But at least Democrats will have forced each Republican senator to put his or her complicity on the record forever—and sent a warning to the voting public that grave abuses of power can occur in the United States with impunity.
The actual document that lays out the charges against Trump is akin to an indictment by a grand jury. Let’s consider what the Democrats did not include in it. The articles of impeachment do not include the charge of bribery, even though that term is expressly listed as a basis for impeachment in the otherwise relatively terse U.S. Constitution.
Most fair definitions of that term would include Trump’s offer to perform official acts in exchange for something of value—that is, a Ukrainian investigation of Joe Biden’s son. Yet Democrats wisely avoided making charges whose factual basis was in any way debatable. They may have realized that, under the Supreme Court’s 2016 ruling in McDonnell v. United States, which scaled back the definition of political corruption in criminal cases, Trump could make a superficially plausible argument against an impeachment article about bribery. The criminal law doesn’t technically govern impeachment, but it might have provided Trump with just enough philosophical cover to drag out the process.
Democrats also declined to accuse Trump of obstruction of justice based on the Mueller report, even though both Richard Nixon and Bill Clinton faced such charges in their impeachments. This was likely a pragmatic political decision rather than a legal one. Trump’s bold attempts to kill the investigation into Russia’s interference in the 2016 election are ancient news at this point.
Had Democrats included these and possibly other charges, Republicans might have had fodder for their defense that Democrats are out-of-control Trump haters who wanted to undo the 2016 election the moment the Electoral College was called for him over Hillary Clinton. A laundry list of impeachment charges, some more easily provable than others, would have invited a whole host of factual and political distractions, allowing Republicans in Congress to dodge the actual evidence and vote to acquit based on any number of rationales of varying legitimacy.
With their two-step impeachment dance—abuse of office and obstruction of Congress—Democrats have instead put Republicans in a box. On both proposed articles of impeachment, the facts are clear and largely unrebutted—unless, of course, one is willing to forgo facts entirely and run amok with lies. Indeed, Rudy Giuliani has still been globe-trotting in an effort to resuscitate the debunked theory that Ukraine interfered in the 2016 election, so as to gin up an excuse for Trump’s refusal to timely give Ukrainian President Volodymyr Zelensky $391 million in military aid and a White House meeting absent Zelensky’s announcement of investigations into the Bidens.
The only question that remains is what to do about the facts. If the Senate acquits as expected, the answer will be: We’ll do nothing. That answer, in turn, will bend the Constitution and our system of separated powers in significant ways.
First, it will mean that overwhelming obstruction of Congress by a president is okay with Congress itself. Ouch. President Trump refused to turn over a single document to Congress in connection with impeachment, but not on the grounds of executive privilege. Ditto regarding his directive that no one who served in his administration should comply with subpoenas for testimony. His stonewalling is based on a legally insupportable theory that anyone who ever worked for him has total immunity from showing up in response to a subpoena in the first place. The Supreme Court refused to give Nixon and Clinton themselves such protection. If presidents aren’t immune from subpoenas, their employees certainly aren’t either.
If Trump is acquitted, we can expect future presidents to ignore congressional subpoenas without facing any consequences for doing so, because that’s the precedent Senate Republicans appear likely to set. It will mean greater power for the White House and a diminished voice for regular Americans, because their elected representatives in Congress will have relatively little power to check the presidency.
Second, an acquittal for Trump will also mean that presidents can outsource big swaths of the federal government to private citizens with no oversight, no electoral accountability, and no legal recourse. Regardless of whether people believe that Trump himself asked Zelensky for a quid pro quo, Giuliani has been public for months about his quest to get the Ukrainians to help his client by announcing investigations into the Bidens, and Trump has not disavowed his relationship with Giuliani. What this means is that the Senate confirmation process for presidential appointees—mandated by the Constitution—will go largely out the window. So will the federal laws governing ethics and conflicts of interest for federal employees. Presidents will know that they can just tap their buddies to do their personal bidding while in office, regardless of what’s best for national security, the American public, or the rule of law.
Third, Trump’s acquittal will mean that presidents can enlist foreign governments to help them win reelection in contravention of federal laws and the sacrosanct principle that the American people are sovereign. Mueller’s report of Russian interference in 2016 did not deter Trump from asking the Ukrainian government to dig up dirt on the family of a potential general-election opponent—or from publicly inviting China to do the same. Asking foreign powers to meddle, presumably in ways that help only him—not an opponent, even if that opponent is someone whom American voters demonstrably prefer—represents an attempt at subverting the 2020 election.
Justice William O. Douglas famously wrote, “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.”
Trump is putting an entirely new face on the American presidency. Yet there is nothing slight about the abuses described in the Democrats’ two articles of impeachment. They are stark, in-your-face warnings of the Constitution’s fate come 2020 if the Senate lets Trump off.