The articles of impeachment introduced today in the House of Representatives are a mixed bag. The first count is right on target about flagrant offenses meriting both impeachment and removal. The second count is somewhat rooted in reason, but it’s overly vague, perhaps overbroad, and premature.
Let’s first take impeachment Article II, charging President Trump with obstruction of justice. It rather vaguely makes reference to Trump “withholding the production of documents” subpoenaed by House committees and of ordering nine executive branch officials to defy subpoenas to testify.
But both of the documents and witness testimony involve gray areas of the Constitution and applicable laws. It is well established that a president enjoys “executive privilege” and “deliberative process” privilege that, in certain circumstances, shield executive branch discussions from ordinary disclosure in legal proceedings. The boundaries of both privileges are rather case-specific rather than being fixed with bright lines.
Trump clearly has pushed his privilege claims to a dubious degree — as presidents tend to do — but the courts right now are adjudicating some of these issues regarding the Ukraine matter. It is safe to say that some of his claims are stronger than others.
Either way, such claims do not themselves amount to obstruction of justice. It is hard to see how this charge has merit unless Trump defies court orders or exhibits an obviously obstructive pattern well beyond the ordinary give-and-take of intra-branch battles in separation-of-powers disputes.
That’s why Article II of impeachment is overly broad and premature. The rapidity of this impeachment process has not afforded time for these real issues to play out or be adjudicated. Furthermore, by failing to distinguish among the individual examples of Trump’s lack of cooperation, House Democrats fail to identify specifically which of these dilatory tactics most seriously hamper Congress’s due powers, and thus which ones are important enough to merit impeachment.
Obstruction of justice is a serious offense, and it does appear to me as if Trump is at least somewhere near the line. But that allegation is not fully ripe yet; the House would be wise to amend or sit on it.
The first count, however, is far stronger. While I argued strenuously during earlier controversies that Trump did not merit impeachment for those, I have contended from the start of this scandal, repeatedly, that his conduct here is overwhelming grounds for impeachment and removal. The first count of the impeachment resolution does an excellent job presenting the outline of the case against the president.
Article I rightly says that Trump “has persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal political benefit.” That is the heart of the case against him. It is a tremendously serious offense. It is indeed precisely the sort of offense the founders worried about when they provided for impeachment in the Constitution. As law professor Noah Feldman testified, entirely accurately, the two sorts of transgressions the founders most wanted to guard against were those in which “a president tried to corrupt elections,” or, in James Madison’s words, to “betray his trust to foreign powers.”
Here, Trump combined the two offenses into one scheme that he and his lawyer, Rudy Giuliani, pushed energetically for many months. In doing so, they subverted established practices, blew past numerous safeguards, ignored advice and warnings from multiple officials, and improperly withheld military assistance mandated by law. As I have written before, his abuses combined aspects of those proved or alleged in Watergate, the Iran-Contra scandal, and the Trump-Russia investigation, all at once.
This was absolutely not the sort of mild political misbehavior that almost every president commits at one time or another. This was an extraordinary abuse of presidential power, and it amply merits eviction from office.
