As the Senate races toward a final vote in the impeachment trial without stopping to hear from witnesses, acquittal appears as certain as it was before the first minute of testimony. The only thing in doubt is whether a handful of senators—among them Republicans Mitt Romney, Lisa Murkowski, Susan Collins, and Democrats Joe Manchin, Doug Jones, Gary Peters and Kyrsten Sinema—might cross the aisle, or even split their votes between the two articles of impeachment.
Setting aside arguments of whether splitting votes is smart politics or morally weak, the possibility of voting to convict on one article over the other leads to the basic question: Which one should the senators choose? Contrary to a popular perception that the abuse of power article is somehow the more important or consequential one, I would argue that it’s the second article, which deals with obstruction of Congress, that is factually and legally the stronger of the two.
If I had the wavering senators together in a room, this is the argument I would make. It wouldn’t take long because it’s quite straightforward—on the facts and the law. Which should make it easier to explain to voters at home.
To begin with, the facts bearing on obstruction of Congress are undisputed. Trump’s lawyers concede that the White House categorically stonewalled the House by refusing to respond to requests for information, including subpoenas issued both before and after the full vote to impeach, and that Trump instructed every current and former federal employee to refuse to comply, too. On the first article of impeachment, by contrast, the facts are contested—albeit barely. Republicans weakly claim that Trump asked for the Biden investigations to root out Ukrainian corruption and foster “burden-sharing” among American allies. The Trump team also disputes that the Ukrainians knew about the aid freeze until late August 2018, as if their lack of knowledge somehow obliterates the inherent wrongness of Trump’s attempts to strong-arm a vulnerable foreign power to tarnish the reputation of a personal political foe.
The law bearing on the obstruction of Congress charge is also crystal clear. There is zero legal support for the argument that White House employees have complete immunity from testifying. In 2008, when the House Judiciary Committee sought to question President George W. Bush’s former legal counsel, Harriet Miers, the White House similarly claimed total immunity for its top officials. U.S. District Judge Judge John Bates, who served as Ken Starr’s deputy in the Whitewater investigation, issued a decision shutting down the argument:
[T]he aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process. The Supreme Court has reserved absolute immunity for very narrow circumstances, involving the President’s personal exposure to suits for money damages based on his official conduct or concerning matters of national security or foreign affairs. The Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.
As Judge Bates noted, both Presidents Nixon and Clinton argued that they had immunity from subpoenas—and lost in the Supreme Court. How could lower-level employees enjoy total immunity that’s broader than anything the president can legally claim for himself? To make matters worse, the immunity question does nothing to justify Trump’s refusal—at a minimum—to hand over relevant documents in the coffers of the executive branch.
Rules governing attorney conduct in federal court preclude lawyers from making arguments that are not grounded in the law—a concept that obligates judges and attorneys to adhere to prior precedent. Although new factual scenarios invite good lawyers to “stretch” the law, the president’s defense to the second article of impeachment is not about stretching the law. Instead, it smacks of bad faith, inviting any future president to force Congress to relitigate settled legal principles every time it seeks information on behalf of the American public. Expecting presidents to follow established law without prodding from federal courts is hardly an “abuse of office” by Congress, as other scholars have argued.
The president’s refusal to heed established legal precedent is also deeply damaging to the separation of powers. As House manager Adam Schiff explained to the Senate Thursday, at the same time the White House was claiming Trump cannot be impeached for using access to the courts as an excuse for ignoring Congress’ investigative powers, it was arguing before the D.C. Circuit that courts cannot compel congressional subpoenas because Congress lacks standing to sue and impeachment is the sole means of checking the presidency’s obstruction.
Heads, we win. Tails, you lose.
Regular Americans understand that this distorted logic is nonsense. What they don’t necessarily understand is that—as Trump lawyer Alan Dershowitz refreshingly admitted Wednesday on the Senate floor—what the president is actually arguing for is unlimited power with no meaningful congressional or judicial oversight whatsoever.
Let’s not forget, too, that obstruction of Congress is in fact a crime. Even though the United States Code setting forth federal criminal law isn’t cited in the second article of impeachment, recitation of chapter and verse is not required to state a civil claim in federal court. If the substance of the charge is clear from the facts, the defendant is on notice of the substantive law, too. Thus, the second article addresses Trump’s global defense that the articles of impeachment are no good without a crime, as well.
Finally, as a matter of historical precedent, the second article is a virtual slam dunk. Only three times before has the House weighed in on what conduct is impeachable. For two out of the three, obstruction of an investigation qualified.
Although not voted on, the articles of impeachment against Richard Nixon included “withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States” and “interfering or endeavouring to interfere with the conduct of investigations by . . . Congressional Committees.”
Likewise, Clinton was impeached for “willfully corrupting and manipulating the judicial process of the United States for his personal gain and exoneration,” and for “attempting to influence witness testimony and slow the discovery of evidence in that civil rights action, obstructed, and impeded the administration of justice by ... allowing and/or encouraging the concealment of subpoenaed evidence and ... allowing his attorney to make misleading testimony.”
House manager Jerry Nadler was thus correct to say Thursday that acquitting Trump on Article 2 “eviscerates Congress.” This is bad for the American people. With no oversight, and no consequences for violating laws, the presidency will become a hotbed of abuse. That should be apparent even if you happen to believe that Trump should stay in office. On-the-fence senators should take their own constitutional prerogative seriously enough to protect the vitality and legitimacy of the body that they have the privilege to represent.
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Opinion | Some Voting Advice for Wavering Senators - POLITICO
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