23 Dangerous Propositions the Senate Just Ratified

In voting to acquit President Trump, the Senate has legitimated legal and moral claims that will not serve America well.

President Donald Trump
Jonathan Ernst / Reuters

The Senate today voted largely along party lines to acquit President Donald Trump on two articles of impeachment. The acquittal, in the simplest sense, is a declaration that the House of Representatives failed to prove its case. But it is also a statement of values by the Senate—an embrace of certain basic propositions about the president’s conduct, the House’s conduct in impeaching him, and its own responsibilities.

At least in those circumstances in which the president and the majority of the Senate are of the same political party, the Senate has adopted the following propositions:

  1. It is not an impeachable offense for the president of the United States to condition aid to a foreign government on the delivery of personal favors to himself.
  2. It is not an impeachable offense for the president of the United States to demand that a foreign head of state dish dirt on the president’s political opponents—or demand that he make dirt up if none is available to dish.
  3. For that matter, it is not an impeachable offense for the president to push a foreign law-enforcement agency to investigate a U.S. citizen for conduct no U.S. law-enforcement agency has found to warrant an investigation.
  4. Abuse of power is not an impeachable offense. The oath he swears to “faithfully execute” his duties and “preserve, protect, and defend the Constitution” notwithstanding, the president is generally free to use his powers under Article II of the Constitution to benefit himself and harm those he disfavors.
  1. Instead, an impeachable offense requires criminal activity. It would thus not be an impeachable offense for the president to, say, pardon all federal felons convicted of killing people of one particular race. Nor would it be an impeachable offense for the president to announce his intention to invade Ukraine in three weeks’ time if President Volodymyr Zelensky does not announce investigations of Joe and Hunter Biden. It would also not be an impeachable offense for the president to declare that—his Bedminster, New Jersey, resort being a more pleasant environment than Washington D.C. and the job of the presidency being something of a drag—he is abandoning the White House to play golf and will not engage in any of the duties of the office.
  2. The conduct described in the first article of impeachment passed by the House of Representatives does not describe a criminal offense—or even what Alan Dershowitz called impeachable “criminal-like behavior”—though that article alleges the following:

(1) President Trump—acting both directly and through his agents within and outside the United States Government—corruptly solicited the Government of Ukraine to publicly announce investigations into—
       (A) a political opponent, former Vice President Joseph R. Biden, Jr.; and
       (B) a discredited theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election.
(2) With the same corrupt motives, President Trump—acting both directly and through his agents within and outside the United States Government—conditioned two official acts on the public announcements that he had requested.

  1. It is unnecessary to hear any additional witnesses or to see any additional evidence in order to determine whether the first article of impeachment accurately describes the president’s behavior even though the president denies the facts alleged above.
  2. It is not an impeachable offense for the president to refuse to cooperate with a congressional impeachment investigation, and obstruct the cooperation of his administration, as the second impeachment article alleges:

(1) Directing the White House to defy a lawful subpoena by withholding the production of documents sought therein by the Committees.

(2) Directing other Executive Branch agencies and offices to defy lawful subpoenas and withhold the production of documents and records from the Committees—in response to which the Department of State, Office of Management and Budget, Department of Energy, and Department of Defense refused to produce a single document or record. [And]

(3) Directing current and former Executive Branch officials not to cooperate with the Committees—in response to which nine Administration officials defied subpoenas for testimony, namely John Michael "Mick" Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and T. Ulrich Brechbuhl.

  1. It is also unnecessary for the Senate to hear any witnesses or to see any evidence in order to make the determination that the above is not an impeachable offense.
  2. In fact, Congress should shrug and do nothing when the White House unilaterally evaluates the validity of subpoenas from the House of Representatives and complies only to the extent that it feels like it.
  3. Indeed, confronted with a clash between the Senate’s institutional interests in defending legislative investigative capacity and defending a president of the same party as the Senate majority, it is appropriate to sacrifice the former to the latter.
  4. The House should have more aggressively pursued litigation in order to enforce its subpoenas before turning to impeachment. Also, the House cannot ask the courts to enforce subpoenas when the remedy of impeachment remains available. It is insulting to suggest that there is any contradiction between these two statements.
  5. To the extent that the House managers may need to call any witnesses or present any documentary evidence to prove either article, that is not a reason to hear such evidence. It is, rather, reason to acquit.
  1. To the extent that the White House has impeded the House of Representatives’ access to evidence, that is not a reason to compel the president to provide such evidence regarding the first article of impeachment, much less to convict on the second article. It is, to the contrary, reason to acquit on both articles.
  2. Likewise, a dispute over facts is not reason to hear evidence. It, too, is reason to acquit.
  3. This is true even if the relevant facts may be available for purchase in every bookstore in just a few weeks.
  4. It is not a problem if that forthcoming book apparently describes a meeting in which the president demanded assistance from his national-security adviser in extorting the Ukrainian government, and did so in front of one of the same lawyers who has been arguing before the Senate that the president never engaged in such conduct. There is no reason that the Senate should know more about this evidence before voting to acquit. In fact, as described in Proposition 15, a dispute over evidence is itself reason to acquit.
  5. It is more important for the Senate to chastise the House for its failure to effectively summon witnesses in the face of presidential obstruction than it is to hold the president to account for that obstruction.
  6. A president should not be removed in an election year, even if the actions for which he is on trial involve an effort to distort the integrity of that upcoming election.
  7. A president should not be removed if the vote to do so would be along partisan lines. Because of this, it is reasonable for senators of the president’s party to vote against removing the president or calling for witnesses, even though their decision to vote for removal or for witness testimony would, by definition, make that vote bipartisan. There is no need to reconsider this position even if a fellow member of the president's party decides to vote for testimony or removal.
  8. There is no reason to think that the president will reengage in similar conduct, even though the phone call with Zelensky took place the day after Special Counsel Robert Mueller’s congressional testimony. The impeachment process will “be instructive” for the president. He will “think twice” before doing it again and will be “much more cautious.” He has learned that acting “through the proper channels” is best.
  9. The phone call was perfect—or, if not quite perfect, at least tolerable.
  10. “The Radical Left, Do Nothing Democrats, don’t want justice when pushing the Impeachment Hoax, they only want to destabilize the Republican Party so they can do better in the 2020 election, & that includes the House & Senate. They are playing with the people by taking it this far!”

The senators who voted to convict the president have rejected these propositions. While it would be a mistake to say that all of the senators who voted for acquittal have embraced every proposition, each of them has necessarily embraced some. And the Senate as a body can be said to have adopted all of them, to its very dubious credit. Yet the president will likely take away one message above all: “When you’re a star, they let you do it. You can do anything.”