Was what he did really so bad? And even if it was bad – was it truly impeachable?
As Democrats hit the gas on impeachment this week, Donald Trump exhorted Republicans to defend him on the substance of his actions in the Ukraine scandal, instead of sniping about the process.
“Rupublicans [sic],” Trump tweeted “go with Substance and close it out!”
Trump’s misconduct, critics say, includes using the power of the presidency to solicit foreign intervention in the 2020 US election, by trying to force Ukraine to help conduct a political hit on Joe Biden.
Trump denies all wrongdoing and most of his defenders do too. But there is a (slightly) subtler version of Trump defense that Republicans are trying out which says that while Trump’s conduct has not been irreproachable, neither has it been impeachable.
The argument, according to constitutional experts and historians of impeachment, is not a strong one. In fact, Trump’s conduct, according to analysts interviewed by the Guardian, hews more closely than any previous conduct by any other president to what scholars conceive as a concrete example of impeachable behavior.
Frank O Bowman III, author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump and a professor at the University of Missouri school of law, said that Trump’s having extorted actions with no legitimate US national purpose from a foreign country that is “literally at risk of losing its political and territorial independence” without US support was impeachable.
“It’s plainly an abuse of power, and it’s plainly impeachable,” Bowman said.
“I think these are quite clearly, precisely the type of high crimes and misdemeanors that the founders not only feared but actually discussed at the constitutional convention,” said Jeffrey A Engel, co-author of Impeachment: An American History and director of the center for presidential history at Southern Methodist University.
“The high crime is the trade – give me dirt on Joe Biden and his son, and I’ll give you in return military aid and help with your economy – I think that is certainly impeachable,” said Corey Brettschneider, author of The Oath and the Office: A Guide to the Constitution for Future Presidents and a professor of constitutional law at Brown University.
Many are finding defending Trump difficult at the moment. Republican lawmakers spent Thursday fleeing reporters trying to ask the question, “Do you think it’s OK for the president to pressure foreign governments to interfere in our elections?”. One lawmaker even headbutted a camera rather than reply.
The reason Trump’s alleged conduct is plainly impeachable, historians say, has to do with US impeachment precedent and with what the authors of the US constitution meant when they provisioned impeachment for “high crimes and misdemeanors”.
“If we look at history both British and American – and it’s important to look at British history, because our Framers were of course rebel Englishmen and they adopted the phrase ‘high crimes and misdemeanors’ in full recognition of the fact that that was a parliamentary term of art, and that therefore they were adopting to some degree, by reference, previous usages of that term – all of that leads to really the inescapable conclusion that one of the grounds for impeachment has always been abuse of power,” said Bowman.
While Trump and his defenders reject the allegation that he has any divided loyalties, critics have pointed out that his actions in office, including his withholding of military aid from Ukraine, have advanced Russian interests – and his own personal interests, when it comes to soliciting election assistance.
The founders drafted the impeachment clause specifically with problematic foreign loyalties in mind, Engel said.
“Having just gone through the process of a divisive revolution, where it was literally neighbor against neighbor and sometimes even brother against brother split over loyalty,” Engel said, “there was a great deal of concern about just simply making sure that the people who were in charge generally had America’s best interests at heart. Because people had so many friends over the course of their lives that did not – or at least that chose France or that chose Britain.”
In an Oval Office interview on Thursday, Trump compared his conduct favorably with the last two presidents to face impeachment proceedings, Richard Nixon and Bill Clinton.
“Everybody knows I did nothing wrong,” Trump told the Washington Examiner. “Bill Clinton did things wrong; Richard Nixon did things wrong. I won’t go back to [Andrew] Johnson because that was a little before my time. But they did things wrong. I did nothing wrong.”
Trump’s analysis of his own behavior does not stand up to scrutiny, scholars said.
“Obviously the degree of severity is almost immeasurably different,” said Bowman. “With respect to Clinton, yes you had a violation of law, in the sense of his having committed perjury, but he committed perjury in order to conceal a private, consensual sexual affair. Now that’s discreditable, it’s also criminal – he got disbarred as a result of doing it.
“But in terms of the interests of the nation, not even remotely comparable.
“In this case, Trump is literally holding the independence of another country hostage to his own political interests. Not only is that contemptible, and in many ways more contemptible than what Nixon did, but I think it’s also true, and we’ve heard a lot of testimony about this over the past couple of weeks, that what he was doing is endangering an American policy objective, the whole framework of containment of Russian expansionism, the bedrock of our policy in eastern Europe for the last 70 years.
“It’s far worse, in that regard, I think, than what Nixon did.”
Engel said the “Nixon case is very instructive” in judging the integrity of Trump’s defensive wall in the Republican members of Congress.
“The Republicans by and large backed Nixon right up until the moment they didn’t,” Engel said. “Which is to say, when new information came out, in his case specifically the smoking gun tape, that nobody in good conscience could refute, his support eroded literally overnight.
“And I think we will see potentially a similar dynamic, at least that dynamic is set up, that there’s no particular reason at this moment that Republicans feel a need to break with their party.
“But history suggests that they may at some point open the newspaper and realize they have no choice but to switch sides.”
