In opting for a narrow rather than a broad set of charges, Democrats sought to blunt Republican criticism that the impeachment proceeding against Trump is a reckless attempt to undo a democratically elected president, according to some experts
As they conducted a two-month-long impeachment inquiry into the conduct of President Donald Trump, Democrats considered a range of charges against him, including articles stemming from special counsel Robert Mueller’s investigation, and violations of the emoluments clause to the U.S. Constitution.
In the end, however, House Speaker Nancy Pelosi and other top Democratic leaders settled on just two charges: abuse of office and obstruction of justice.
In opting for a narrow rather than a broad set of charges, Democrats sought to blunt Republican criticism that the impeachment proceeding against Trump is an illegitimate attempt to undo a democratically elected president, according to some experts.
Kim Wehle, a former associate independent counsel in the Whitewater impeachment investigation against former President Bill Clinton, said the Democrats’ decision is a smart play, if only to make it more difficult for Republicans to be totally dismissive of the historic action.
“If it had been a laundry list of articles of impeachment, the Republicans could say, The Democrats are out of control. This is a witch hunt, or this is overreaching.’ And they can hide behind that rhetoric to basically walk away from impeaching this president,” said Wehle, a law professor at the University of Baltimore.
Articles of impeachment
Articles of impeachment are similar to criminal charges. The two articles of impeachment revealed on Tuesday are focused on Ukraine and are related to Trump’s efforts to get Ukraine to investigate former Vice President Joe Biden, a political rival, and a discredited theory about Ukrainian meddling in the 2016 presidential campaign and Trump’s subsequent attempt to impede a congressional inquiry.
Though not a criminal offense, abuse of power is a long-running theme in U.S. presidential impeachments, according to Louis Michael Seidman, a professor of constitutional law at Georgetown University. Obstruction of Congress is less common; Richard Nixon faced a similar charge of contempt of Congress.
The first article accuses Trump of using the power of his office to solicit Ukrainian interference in the 2020 U.S. presidential election. It alleges that the president asked Ukraine to conduct investigations that would “benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States presidential election to his advantage.”
It says that Trump “sought to pressure” Ukraine to take these steps by conditioning nearly $400 million in military aid and a White House meeting between Trump and the president of Ukraine on the investigations.
Throughout the impeachment inquiry, Democrats sought to prove that Trump pushed for the investigations in exchange for military aid and an Oval Office meeting with Ukraine’s president. But establishing an explicit quid pro quo proved more challenging than they’d anticipated. That may explain why the resolution plays down a quid pro quo in making its case.
The second article is centered on Trump’s effort to impede the congressional impeachment inquiry. After Democrats announced the investigation in late September, Trump ordered the White House and executive branch agencies not to cooperate with the inquiry.
“In the history of the Republic, no president has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate high crimes and misdemeanors,” the resolution states.
Narrow set of charges
In recent weeks, House Democrats seemed divided over the scope of a possible Trump impeachment. Many advocated including a charge of obstruction of justice related to Trump’s alleged effort to interfere with the Mueller probe, a lengthy investigation into whether Trump’s 2016 campaign colluded with Russia to influence the outcome. That investigation found no evidence of collusion, but cited nearly a dozen instances of possible obstruction.
Others wanted charges of bribery, extortion and campaign finance violations included in the articles of impeachment.
In the end, however, the Democrats opted for a straight-forward case they felt was easy to prove. The decision to drop the extraneous charges won praise from an unlikely critic: Jonathan Turley, a George Washington University law professor who was invited by Republicans to testify in the House Judiciary Committee last week.
“While my fellow witnesses made good-faith arguments for those articles, my testimony primarily focused on the legal and constitutional flaws in claiming those criminal acts,” Turley wrote on his personal blog.
Rush to judgment
The impeachment proceeding is set to barrel ahead. On Thursday, the Democratic-controlled House Judiciary Committee is scheduled to vote on the articles, followed by a vote by the full House next week. Should the House approve one or both articles of impeachment, Trump would become only the third U.S. president in history to be so charged. He then would face a trial in the Senate early next year.
The Democratic push has raised charges that they’re rushing to judgment. Turley told lawmakers last week that while Trump could be impeached for abuse of power and obstruction of Congress, the Democrats have not fully developed their case.
“The problem is that the House has not bothered to subpoena the key witnesses who would have such direct knowledge,” Turley testified.
But Democrats say they don’t want to go down the rabbit hole of subpoenas. Adam Schiff, House Intelligence Committee chairman, noted that it took a federal court eight months to rule in favor of a congressional subpoena for former White House counsel Don McGahn to testify.
Even if takes another eight months to get a second court order, Schiff said, Trump administration officials could still claim executive privilege over certain documents sought by Congress.
“The argument, Why don’t you just wait?’ amounts to this: Why don’t you just let him cheat in just one more election? Why not let him cheat one more time? Why not let him have foreign help just one more time,” Schiff said Tuesday.
Democrats also appear intent on getting impeachment out of the way ahead of the November 2020 election, in part to prevent Democratic senators running for president to be pinned down in Washington during a prolonged impeachment trial.
“But I think the danger is that it could be done so soon that it will be in the rearview mirror (for) most people, most voters, when they actually go to the polls in November,” Wehle said.
Republicans insist Trump has done nothing wrong. They say the president simply asked Ukraine to root out corruption, and that no evidence of a quid pro quo has emerged.
They also defend Trump’s right to bar members of his administration from cooperating with the impeachment inquiry on the grounds of executive privilege.
Ultimately, though, it matters little how strong the impeachment case is. Impeachment is a quasi-judicial and political process. And with Republicans controlling the Senate, it is highly unlikely that Trump will be convicted and removed from office.