Trump’s Impeachment: What Matters and What Doesn’t

The impeachment trial of President Trump has now started. The senators and the Chief Justice are sworn in, the parties have made their original statements and arguments will begin soon. For many people outside the United States – indeed, for many people outside of Washington – it can be hard to separate out the wheat from the chaff. So here is my attempt at sorting this mess out.

Let’s start with what does not matter. The Democrats have made a huge argument that the Senate must take live testimony from witnesses and accept documents into evidence. So far, the Republicans have been against it. No one, however, seems to recognize that this argument is about nothing in particular. The purpose of hearing witnesses and reviewing documents is to resolve factual disputes. That is the only reason to take evidence in the context of a trial.

But the two sides basically agree on all the relevant facts. There was a call, Trump withheld foreign aid to Ukraine, Trump told the Ukraine government that the money would be released if Joe Biden’s son was investigated, and later the funds were released anyway. Trump and his defenders say this is OK; the Democrats say it is an impeachable abuse of power. Both sides have arguments, but they are not factual arguments; they are about interpretation.

The facts are even clearer  on the obstruction of Congress article. Congress wanted information. Trump refused. Again, the Democrats interpret those facts to be justification for removal and Trump’s defenders disagree, but they all agree about what happened.

So if the facts are not disputed, why is this such a fight? Both sides are posturing for political purposes. The Democrats want to paper over their less-than-stellar investigation. The Republicans want to put this whole embarrassing situation behind them as fast as possible. At the end of the day, nothing turns on this fracas.

Similarly, whether any of this conduct constituted a federal crime is irrelevant. The U.S. Constitution does not require that a president be impeached only for violations of criminal law. Indeed, for much of the history of America, there were comparatively few federal crimes. While a violation of criminal law might make the case for impeachment easier, it is not required. So all the efforts to fit the conduct into the boxes of extortion or obstruction of justice are misplaced and distracting.

Turning to the more partisan arguments, on one side, the Republican attacks on the impeachment process in the House are a distraction. They allege various sorts of so-called due process violations. Some have a bit of weight, others are transparently silly since Trump refused to participate anyway, but they just don’t matter. The Constitution does not require any particular process leading up to impeachment. Invocation of the concept of due process tries to fit a square peg into a round hole. The Senate must resolve the allegations as presented. Any other complaints are best left to the political campaigns in the fall.

On the other, Democratic suggestions that the Republican senators are not impartial ring hollow and make no difference. Setting aside that Democratic senators also pontificated on the outcome well before the process even started, nothing turns on this. The senators are required to listen to the arguments and decide the dispute, they are not required to be deaf and mute during the months (and years) leading up to the trial.

So what does matter? It takes 67 senators to convict the president. Say what you will about Trump as a president or as a man, this means the actual case for removal needs to be strong. What the articles of impeachment serve up is a very thin gruel. Let’s assume that Trump conditioned the release of the foreign aid on a Ukrainian investigation of Biden’s son and that such action violated a relatively obscure law dating back to the 1970s. Could one justify removing an elected president for that? Perhaps. But it hardly seems particularly grave. The fact is that presidents – both Democratic and Republican – often press the edges of the legal constraints on their office, often, but not always, with good intentions. The traditional solution is to vote them out of office if the electorate finds this offensive. Had the Democrats – or the independent prosecutor – found that Trump colluded with the Russian government, that would have been profound. But that did not pan out, and, in comparison, this charge seems anticlimactic.

The second article, obstruction of Congress, is even weaker. Congress and the president are frequently at odds. Historically, they both look to the courts to resolve questions about the enforcement of subpoenas. Indeed, there was at least one lawsuit pending at the time the articles of impeachment were voted. Maybe the invocation of privilege was correct and maybe it wasn’t, but it seems a bit of a heavy hand for Congress to seek to impeach before the courts had their say.

In the end, in the absence of some bolt from the blue, the impeachment will fail. This is neither a hope nor a fear, but simply a prediction based on what is known today. But the fact that it fails will be important. It will affect the upcoming elections. It will affect the relationship between Congress and the presidency. It will certainly make the poisonous atmosphere in Washington even worse.

About the Author
Evan Slavitt is the Senior Vice President, General Counsel and Corporate Secretary for an international corporation where he oversees all legal and environmental matters. Before joining AVX, Mr. Slavitt was a partner in Bodoff & Slavitt, LLP, where he concentrated his practice in complex commercial litigation and white-collar criminal defense. Mr. Slavitt is a frequent author and lecturer on legal matters as well as the author of one work of fiction. He is a graduate of Phillips Exeter Academy, Yale University (B.A. and M.A. in economics) and the Harvard Law School, where he served as an editor of the Harvard Law Review. Mr. Slavitt was an assistant U.S. attorney from 1983 to 1987.
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