Almost the minute after the White House released its 110-page brief for the Senate impeachment trial, careful observers noticed a contradiction between the White House counsel’s view and Attorney General William Barr’s. The White House brief argues that there can be no impeachable “abuse of power” without a violation of established law. Meanwhile, in a memorandum to senior Justice Department lawyers written while he was still a private citizen in 2018, Barr argued that abuse of power can indeed be impeachable even if there is no crime.
As a purely legal matter, the position of the White House counsel, Pat Cipollone, is incorrect. But that doesn’t help the Democrats in this case, and should perhaps worry them in the long run.
First, let’s take a look at Cipollone’s unforced error. (I worked at the White House from 2017 to 2019 as the Council on Environmental Quality’s associate director for regulatory reform.) The memorandum claims that “by limiting impeachment to cases of ‘Treason, Bribery, or other high Crimes and Misdemeanors,’ the Framers restricted impeachment to specific offenses against ‘already known and established law.’” The memo goes on to note that at the Constitutional Convention, James Madison opposed “maladministration” as grounds for impeachment because that would be equivalent to tenure at the pleasure of the Senate, subjecting the president to something akin to a parliamentary vote of no-confidence. That, the memo insists, “would cripple the independent Executive the Framers had crafted and recreate the Parliamentary system they had expressly rejected.”