Impeach Himself?

Did Trump Just Impeach Himself?

Eight legal experts on whether the president’s phone call with the Ukrainian president was an abuse of power—and if not, what the House would need to learn to arrive at an answer.

By POLITICO MAGAZINE

The White House memo reconstructing a July phone call between President Donald Trump and Ukrainian President Volodymyr Zelensky landed on the internet on Wednesday like a dress that is either clearly blue and black or clearly white and gold, depending on the viewer.

Here was evidence, clear and unambiguous—and provided by the White House itself—that Trump requested a foreign leader to investigate the son of former Vice President Joe Biden, one of Trump’s potential 2020 opponents. But where some saw an impeachable abuse of power, Trump defenders saw proof that he did nothing wrong, because his request for a “favor” wasn’t explicitly tied to the withholding of U.S. military aid.

Who’s right? We asked a group of legal experts what to make of it all. Do President Trump’s actions, as described in the summary of his phone call, meet the Constitution’s definition of an impeachable offense? If yes, why? If no, what more should be investigated, if anything?

Here are their responses:

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The phone call ‘clearly establishes high crimes and misdemeanors’
Laurence H. Tribe is a professor of constitutional law at Harvard Law School.

The White House’s reconstruction of the phone call clearly establishes high crimes and misdemeanors, even if no further evidence were available. It shows a president responding to a desperate request by an ally for military assistance that he is secretly withholding by indicating that he might be able to help but—and his use of the word “though” is telling—he would appreciate the ally’s help in going after the former vice president and his son.

Even those looking for a quid pro quo should be satisfied that this conversation provided just that. But no quid pro quo is needed. For a president to use his foreign policy and military powers to encourage illegal foreign assistance in going after a political opponent in his reelection campaign is itself a high crime. And to involve his private attorney and the attorney general in that abuse of power compounds the offense.

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‘The readout provokes far more questions than it answers’
Miriam H. Baer is a professor of law at Brooklyn Law School.

Several of the president’s most strident supporters may claim that this readout “exonerates” him of criminal wrongdoing, but that is the wrong question and, frankly, far from true. We aren’t asking whether Mr. Trump’s singular conversation violated a particular statute. We are asking whether he placed pressure on a foreign country to investigate a political rival’s family member, and whether that pressure rises to the level of “high crimes and misdemeanors” such that he should be impeached. To that end, the House rightfully will want to investigate all of Mr. Trump’s direct and indirect contacts with Ukraine.

The readout itself alludes to contacts by Rudolph Giuliani, Mr. Trump’s personal attorney. Those contacts—which Mr. Giuliani himself has stated he undertook as a lawyer acting on his client’s behalf—are sure to become a key focus of an impeachment inquiry. Moreover, the readout also references William Barr, the attorney general of the United States. If Mr. Barr becomes a fact witness (and that seems increasingly likely), he will be under immense pressure to recuse himself from the entire impeachment matter, which is significant in and of itself.

In sum, as has often been the case during the Trump administration, the readout provokes far more questions than it answers.

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‘It is not a smoking gun, but raises concerns’
Laurie L. Levenson is a professor of law at Loyola Law School. She was formerly an assistant U.S. attorney in Los Angeles.

It is not a smoking gun, but the call certainly raises concerns. President Trump just can’t seem to stop himself from infusing his personal political situation into his interactions with everyone, including foreign leaders. The key to understanding this call is seeing it in context. Robert Mueller, whom Trump demeans in the call, has just finished his report and testimony. Everyone is concerned with foreign interference with our elections. Nonetheless, Trump uses the occasion to ask for a favor: He wants Zelensky’s hand-picked prosecutor to go after Biden. With all the things our nation and the Ukraine need to worry about, why was this on the top of his agenda, and what favors was Trump willing to do in return? It will take more investigation to determine that.

It is also a bit curious why Attorney General Barr is allowing himself to be dragged into this. The downfall of prior administrations (think Richard Nixon’s) has been when those who are there to keep the president on the straight path lapse into doing his bidding. It would be very interesting to know what information Barr had about Ukraine’s investigation, and whether our own Justice Department was pursuing some angle of it as well.

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If this isn’t impeachable, then what is?
David Alan Sklansky is a professor at Stanford Law School.

If it's not a gross abuse of the power of the presidency—in the language of the Constitution, a "high crime or misdemeanor"—to push a foreign leader to pursue a criminal investigation of one of your principal political opponents, it's hard to say what would constitute an impeachable offense.

The defense that Trump and a few of his supporters have advanced today, that there was no pressure or "quid pro quo," is unconvincing. First, there's no constitutional requirement of a quid pro quo; urging a foreign leader to investigate your political opponent would be an abuse of the position of the presidency even without any threat or pressure. Second, it seems pretty obvious that Trump was pressuring Zelensky—partly because of what Trump said, and partly because of the surrounding context of the phone call. Of course, we don't know the full context of the call, and that's important. Filling in that context will be one of the goals of the impeachment inquiry the speaker of the House announced yesterday, and it is part of the point of letting Congress hear the whistleblower's full story.

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Trump revealed ‘his intent to use U.S. government resources and power to further his personal agenda’
Jennifer Taub is the Bruce W. Nichols visiting professor of law at Harvard Law School.

Placed in its full context, this partial summary of this single 30-minute phone conversation between Donald Trump and Ukrainian President Volodymyr Zelensky provides compelling evidence of an impeachable offense. Remember at the time of the call, President Trump was withholding $250 million in military aid to Ukraine. Furthermore, this document itself states it is not a literal transcript, but based on “notes and recollections.”

Even so, on its face, if we follow the conversation flow and content, we see this account as quite damning. Immediately after the opening niceties, we have Trump telling Zelensky how helpful financially the U.S. has been to Ukraine. He speaks without interruption, repeatedly stressing a very one-sided relationship with the U.S. as giver and Ukraine as taker. Trump says, “We do a lot for Ukraine. We spend a lot of effort and a lot of time.” And importantly, before Trump pauses to let Zelensky speak, he intimates that he wants something in return: The “United States has been very very good to Ukraine. I wouldn't say that it's reciprocal necessarily because things are happening that are not good but the United States has been very very good to Ukraine.”

Zelensky’s response indicates that he sees Trump seeking reciprocity. And he immediately mentions how he will spend money in the U.S. by buying our weapons. But — and here’s the critical part — Trump replies to make more clear that he wants a personal “favor” — and he actually uses the word “favor” here. The very first thing Trump asks for is information related to the Democratic National Committee server that was hacked into in summer 2016. Then he also asks for help digging up dirt on his perceived political rival, Joe Biden, and his son. To make clear these are personal favors, Trump repeatedly asks Zelensky to work with his personal lawyer. But by mixing in requests that Ukraine also work with Attorney General Barr, Trump reveals his intent to use U.S. government resources and power to further his personal agenda.

Taken altogether, this pressuring of a foreign government to dig up dirt on political opponents as assistance in an election is an abuse of power among other high crimes and misdemeanors.

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‘This is clearly an impeachable offense’
Richard Painter was the White House’s chief ethics lawyer under President George W. Bush.

This is a blatant effort by Donald Trump to use extortion to enlist the help of a foreign leader to investigate Joe Biden, Trump's political rival here in the United States, for the personal political benefit of Trump. Trump also references Robert Mueller and the Russia investigation—parts of which are still ongoing—and enlists Ukraine's help with that investigation, a matter in which Trump has already obstructed justice as set forth in Part II of the Mueller Report.

This is clearly an impeachable offense, in addition to the other impeachable offenses, which include contempt of congressional subpoenas, unconstitutional foreign and domestic emoluments, the criminal campaign finance violations currently being prosecuted against his accomplices in the Southern District of New York, threats to the free press and more.

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Without an impeachment process to check the White House, ‘the office of the presidency will morph into one with virtually unlimited power’
Kimberly Wehle is a professor at the University of Baltimore School of Law, and author of How to Read the Constitution — and Why.

Was this an impeachable offense? Democrats in Congress seem to increasingly believe the answer is yes, and this is a political judgment, not a legal one. Accordingly, the Constitution’s standard for an impeachable offense—“High Crimes and Misdemeanors”—does not require proof of a crime beyond a reasonable doubt.

But based on the phone call meeting notes alone, it is clear that President Trump asked the Ukrainian president to “look into” his political opponent and—in that connection—he served up the assistance of the attorney general of the United States. This is after the Ukrainian President brought up Senate-authorized military aid that we now know Trump was holding up, to the apparent dismay of a key supporter in Congress, Senate Majority Leader Mitch McConnell. This is not to mention the cumulative effect of this news in addition to the other concerns about this president.

Whether Trump is ultimately impeached is beside the point. This issue is that, absent invocation of some impeachment process to check the White House, the office of the presidency will morph into one with virtually unlimited power. This is bad for regular people, regardless of political party.

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‘Trump conspired with a foreign government to manipulate it for partisan purposes. That’s clearly a “high crime”’
Corey Brettschneider is a professor of political science at Brown University. He is author of the forthcoming book, The Oath and the Office: A Guide to the Constitution for Future Presidents.

In my view, the transcript itself of Trump's conversation with the Ukrainian president is impeachable. It’s a clear example of the president using his position as chief executive to manipulate the law for his own political gain. Public debate will focus on whether a quid pro quo happened, or whether a criminal offense was committed. But those are questions for courts; impeachment is a question for Congress, and Congress alone. The Constitution’s standard for impeachment is explicitly not a criminal one—“high crimes and misdemeanors” is not found in the penal code. Instead, the standards ask whether a president has violated his or her oath of office, undermining the Constitution’s values. Trump’s case here is clear. Instead of faithfully executing the law, carrying justice out impartially for all and making sure no one is above it, Trump conspired with a foreign government to manipulate it for partisan purposes. That’s clearly a “high crime” and the antithesis of faithful execution.

Still, more investigation would serve the public interest. Rep. Robert McClory was right, speaking in 1974 about the prospect of Nixon’s impeachment, that it should serve as a “guide for future presidents.” An overly narrow inquiry would wrongly suggest that none of Trump’s other violations have been impeachable. Beyond the Ukraine call, Trump’s potential obstruction of justice detailed in the Mueller report, his failure to report Russian interference in the election, and his quest for intellectual copyright from China while president, among other emolument violations, all warrant careful congressional scrutiny and could reasonably be found impeachable.