Impeach

by Neal Katyal

  Process Question #15: What punishments are available in impeachment?

  The Constitution strictly defines the punishments the Senate can mete out in Article I: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

  This means three things. First, impeachment proceedings will generally center on removal from office. That’s the usual focus of impeachment. But they also permit the Senate to add a further punishment of disqualifying someone from holding future office. In other words, the Senate can decide whether it is strictly removing a president from office once or whether to bar him from ever running for elected office again.

  Second, because the Constitution enumerates these two tracks of punishment for an impeached official, but doesn’t instruct the Senate on how far to go in applying them, there are interesting strategies the Senate can use. The senators could, for instance, remove Trump from office but not bar him from running again—saying in effect that if he really believes a new election will vindicate him, he can go ahead and give it his best shot. Or they could decide not to remove him from office now but disqualify him from ever running again. Neither of these possibilities makes much logical sense, given the strength of the case against him, but then again, we are talking about Washington, DC.

  Third, the “shall not extend further than” language in Article I means that criminal punishments are off the table for the Senate. (This was more extensively discussed in response to the previous question.) An impeached president can be subject to criminal indictment, but only if he’s been removed from office by the Senate. And the prosecutors, as in any criminal case, would have to prove their case not in Congress but beyond a reasonable doubt in a court of law.

  Case Questions

  Case Question #1: Why can’t we wait until the next election?

  Because President Trump has demonstrated over and over again that he will do everything in his power—legal and illegal—to manipulate the results of the election in his favor, even if that means working with a foreign power to undermine our democracy.

  As I argue in Chapter 1, when Trump asks Americans to wait until the election for a chance to remove him from office, it’s like a cardshark asking to resolve a dispute with a game of blackjack when the very crime he’s been accused of committing is cheating at blackjack.

  The reason we can’t wait until the election is that there’s no guarantee President Trump won’t try again to use the powers vested in him to rig it. (He already has.) Which is why we’re left with no choice but to impeach him now.

  As I detailed in Chapter 1, this is precisely the argument our founders had at the Constitutional Convention in Philadelphia. At first, Gouverneur Morris was unconvinced that impeachment needed to be in the Constitution—because he believed that reelection provided an adequate check on the president’s power. “In case he should be re-elected, that will be sufficient proof of his innocence,” he argued. Sound familiar?

  But Morris’s point was met with an immediate rejoinder by George Mason, which is one of the epigraphs of this book: “Shall any man be above Justice?” Mason asked. “Shall the man who has practiced corruption and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?”

  In other words, without the protection of impeachment, what would stop a president from committing crimes to win office—particularly if he got away with it before and could “repeat his guilt”—when he knew he would have full immunity afterward?

  By the end of the day, Mason—as well as James Madison and Benjamin Franklin—had convinced the majority of the convention that impeachment should in fact be in the Constitution. Even Gouvernour Morris came around. To quote the minutes from the July 20, 1787, meeting: “Mr. Govr. Morris admits corruption and some few other offenses to be such as ought to be impeachable.”

  The “wait for the next election” response was rejected by our 1787 founders, and it makes even less sense today.

  The House launched its inquiry more than a year before the election; this isn’t exactly a last-minute investigation. Indeed, every passing day is one in which President Trump could sell out the 2020 election to foreign interests, which would do untold damage to our democracy on Election Day. And, in the interim, we risk leaving a man in office—in charge of our treasury and our armed forces—who has shown disregard for the rule of law.

  I’m not saying it’s ever right to hurry into impeachment. Rather, I’m saying we don’t have the option of waiting. The case is ripe. The time is now.

  Case Question #2: How many articles of impeachment should we expect? Will they include charges related to the Mueller investigation?

  Impeachments can be broad or narrow. In a broad impeachment inquiry, Congress enumerates each and every one of the president’s high crimes and lists each as a separate article of impeachment. Such inquiries are meant to communicate the breadth of the president’s high crimes.

  In a narrow impeachment inquiry, articles of impeachment include only a few high crimes, which serve as buckets into which the president’s various offenses are distributed. These inquiries are meant to communicate the severity of individual crimes.

  Some legal scholars and members of Congress have made broad claims for impeaching President Trump, which makes sense, since he appears to be guilty of a number of high crimes. But if Congress is going to effectively make the case against him, its articles of impeachment cannot seem like a jumble of grievances. As Tribe and Matz write, “The Impeachment Clause directs attention to particular misdeeds, not the ambient badness of a presidency.”

  That’s why I believe President Trump’s impeachment should be the narrow variety, because for all the further wrongdoing that has come out about President Trump, as I enumerated in Chapter 3, his conduct with Ukraine alone provides Congress with more than sufficient evidence and offense for impeachment. What’s more, I believe that expanding the articles to include activity not related to Ukraine would risk clouding the issue and leave President Trump an opening for a defense.

  I’ve seen this firsthand at the Supreme Court, where advocates often mistakenly load up open-and-shut cases with all sorts of arguments they don’t need to win. If the Court doubts even one of a lawyer’s tangential claims, it will immediately look upon the core argument with suspicion, no matter how cut-and-dried a case it might be. This is less a legal issue than a psychological one.

  There is no doubt that if Congress tried to charge the behavior in the Mueller report, for example, Trump would levy his standard tropes, from his claims that the investigation was a “witch hunt” to his (baseless) declaration of complete exoneration after Attorney General Barr “summarized” the report. So by expanding impeachment to include Mueller, Democrats would risk their core argument being overlooked—or distorted.

  But it’s also true that President Trump’s behavior with Ukraine isn’t unrelated to the Mueller investigation. In both cases, he solicited foreign election interference and covered it up. And even if President Trump didn’t coordinate with Russia in the same way as he did with Ukraine, Mueller’s report still paints a picture of a president who is willing to seek help from any quarter (including foreign governments); who disrespects and refuses to cooperate with law enforcement inquiries; and who tries to cover his tracks.

  Although Congress could theoretically exclude all of that conduct from their articles of impeachment—and still have enough evidence to convict—they would be leaving the jury, and US citizens, with incomplete information. Moreover, in 100 years, people will read the articles of impeachment, and they may not really read much else. Shouldn’t the articles document the full pattern of wrongdoing?

  Fortunately, we don’t have to choose between embracing the kind of narrow case that would
be most effective and ignoring the Mueller report entirely, as the precedent of President Nixon’s impeachment reveals. Instead of charging Nixon with a laundry list of offenses, the House Judiciary Committee adopted only three articles of impeachment. The main text of each article centered on Watergate, but the supporting paragraphs brought in other, well, Nixonian behavior.

  Take, for example, Article I, which concerned obstruction of justice. The main text detailed the unlawful entry into Watergate by CREEP, as it related to Nixon’s “plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal, and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.” But the committee didn’t stop there. The article had nine more paragraphs outlining a laundry list of offenses, ranging from misuse of the CIA to perjury. None of that, strictly speaking, was necessary at all to show the Watergate counts. But its inclusion helped tell the story—not just for the moment, but also for generations to come—of a president who believed he was above the law. After all, when Congress writes impeachment articles, it is writing them for the case at hand but also for history.

  I think Congress should take a similar approach here. Instead of separating out every single offense in a different article, the House should group them into three articles, each of which would focus on a distinct high crime. In Chapter 3, I categorized these abuses of trust as “soliciting foreign interference,” “bribery,” and “obstruction of justice.”

  Each article should center on Ukraine, but as I demonstrated in Chapter 3, it is perfectly appropriate for Congress to include some of the strongest non-Ukraine behavior as supporting evidence.

  Case Question #3: Was there a quid pro quo in this case?

  As I explain in Chapter 3, a quid pro quo is not at all needed to impeach a president for bribery. But as it happens, during his phone call with President Zelensky, President Trump made at least two such offers.

  The first came when President Zelensky mentioned military assistance from the United States, prompting President Trump to say, “I would like you to do us a favor though.”

  This is as simple a case as you will find: President Zelensky asked for something (Javelin missiles). President Trump in turn asked for a “favor.” That’s the definition of a quid pro quo exchange. In a quarter century of being a lawyer, I’ve never seen a documentation like this. Normally criminals are careful to avoid putting such things in writing.

  The second quid pro quo between President Trump and President Zelensky was the exchange of an investigation into Vice President Biden for a visit to the White House. As discussed in Chapters 2 and 3, in advance of the call, Ambassador Volker wrote in a text: “Heard from the White House. Assuming President Z convinces Trump he will investigate . . . we will nail down his visit to Washington.” On the call itself, in direct response to Zelensky’s pledge to “work on the investigation,” Trump said, “Whenever you would like to come to the White House, feel free to call.” That is once again about as blatant a quid pro quo as you will find.

  But don’t just take it from me; many people in Trump’s own administration understood the president to have been engaging in a quid pro quo too. As Ambassador Taylor, Trump’s envoy to Ukraine, said in a text, “I think it’s crazy to withhold security assistance for help with a political campaign.” And acting White House chief of staff Mick Mulvaney confessed to the quid pro quo as well.

  Taylor wasn’t the only one who understood the scheme President Trump had been trying to pull off. According to extensive reporting, so did high-ranking officials from across the government, who were worried about this call in advance because they knew President Trump would propose the very quid pro quo he ultimately pursued. And clearly, White House officials knew that what had taken place on the call was wrong—because they did everything they could to cover it up.

  Case Question #4: If there wasn’t a quid pro quo, would President Trump have committed an impeachable offense?

  For the sake of argument, let’s pretend President Trump hadn’t pursued a quid pro quo of any kind with President Zelensky. Would his behavior still warrant impeachment? The answer is yes. He would be committing a cardinal sin according to our founders—seeking assistance from a foreign government in taking down one of his political opponents. Moreover, in asking Ukraine to deliver on a request for him—one that would embarrass President Trump if it were ever to become public—he would be providing President Zelensky with tremendous leverage over him.

  As I noted in Chapter 2, Ukraine could have said to President Trump, “If you don’t double our aid, or triple it, or quadruple it, then I’ll tell the American people you asked for our help, the help of a foreign government, in your election.” To avoid the appearance of impropriety, President Trump would be left with little choice but to accede to that demand.

  That’s why even if Ukraine totally refused to honor Trump’s request, his actions would still warrant impeachment—because suddenly, in addition to serving the American people, our president would also be forced to oblige the will of Ukraine. That’s an abuse of public trust, and it’s reason alone for impeachment, even in the absence of an explicit quid pro quo.

  Case Question #5: Is the case against President Trump grounded in hearsay? Is that illegal?

  In the days after the whistleblower’s report was released, President Trump’s allies began decrying it as “hearsay.”

  Lindsey Graham, in a tweet referenced in Chapter 2, wrote: “In America you can’t even get a parking ticket based on hearsay testimony. But you can impeach a president? I certainly hope not.” Shortly thereafter, President Trump adopted this argument himself, arguing that the whistleblower’s report was all based on second- and thirdhand sources.

  This would ordinarily be a strong defense, but there was a big problem: the call summary released by President Trump himself on the day prior to the White House’s declassification of the complaint confirmed the lion’s share of the whistleblower’s allegations. Many of the rest of the whistleblower’s claims have since been verified by statements from Rudy Giuliani and by testimony from members of President Trump’s administration before Congress. And even President Trump has been unable to successfully deny any of the specific accusations in the complaint.

  This isn’t like a police officer writing you a ticket for drunk driving based on secondhand information. It’s like being arrested based on the number you blew into a Breathalyzer, the open containers in your car, and your own admission that you were in fact under the influence.

  If you’re curious as to the specific evidence confirming the whistleblower’s complaint, you don’t have to take my word for it. The appendix at the end of this book contains not only the whistleblower’s complaint but also the memo of President Trump’s call with Zelensky, as well as the text messages exchanged among top US envoys pursuing Trump’s quid pro quo. Of course, beyond these written materials, we’ve also seen President Trump defend his actions and invite foreign interference in the 2020 election in public—so we don’t exactly need more evidence proving the veracity of the whistleblower’s report.

  Case Question #6: Did Hunter and Joe Biden break the law?

  By all appearances, Vice President Biden and his son Hunter didn’t break the law. Even Yuriy Lutsenko, the Ukrainian prosecutor who originally claimed that the Bidens were under investigation, has since retracted his accusation. “Hunter Biden did not violate any Ukrainian laws,” he said in a May 2019 interview with Bloomberg News.

  As to the accusation that Vice President Biden demanded that Ukraine fire a prosecutor who had been investigating Hunter Biden, Lutsenko said, “At the end of the day, Shokin submitted his own resignation.” The investigation into Burisma, the company whose board Hunter Biden sat on, had been dormant by the time of Shokin’s departure.

  And as for US laws, neither the FBI nor the Department of Justice found any reason to charge either Hunter Biden or Vice President Biden.

  But, of co
urse, just because something’s legal doesn’t make it right.

  Case Question #7: Is what Hunter Biden did wrong?

  Absolutely. Hunter Biden had no real experience in the energy sector, which made him wholly unqualified to sit on the board of Burisma. The only logical reason the company could have had for appointing him was his ties to Vice President Biden. This kind of nepotism isn’t only wrong; it is a potential danger to our country, since it makes it easier for foreign powers to buy influence.

  The thing is: it’s not illegal. That’s why Hunter Biden didn’t hide his involvement with Burisma. And it’s why President Trump’s children—Ivanka, Don Jr., and Eric—continue to conduct business around the world with impunity. As does President Trump’s son-in-law, Jared Kushner, who works in the White House.

  No politician, from either party, should allow a foreign power to conduct this kind of influence peddling with their family members.

  End of story.

  Case Question #8: Isn’t President Trump allowed to fight corruption?

  Of course. But as I discussed in Chapter 2, that’s not what was happening here.