Benjamin Wittes and Quinta Jurecic: The utter ridiculousness of the U.S. Senate
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.