Speaker Nancy Pelosi’s announcement Thursday that the Democrats would move ahead on drafting articles of impeachment is giving new ferocity to the debate over President Donald Trump’s actions and the way Congress should respond. To gain more insight, CNN Opinion has asked two prominent Washington legal experts to bat the issues back and forth in a series of email exchanges.
Michael Zeldin served as deputy independent counsel, and later independent counsel, in the investigation into allegations that the administration of George H. W. Bush violated the privacy rights of candidate Bill Clinton in the 1992 presidential campaign. Robert Ray served as the independent counsel from 1999 to 2002, during which he led the investigation into the Whitewater controversy.
Pelosi said Thursday the House would proceed to draft articles of impeachment just one day after the Judiciary Committee heard from constitutional scholars. Three argued that witness testimony about an effort to withhold military aid from Ukraine in return for an announcement of an investigation into Joe and Hunter Biden presented sufficient evidence to impeach the President; a fourth disagreed.
We asked Zeldin and Ray: Should Democrats have continued investigating or do they have enough evidence to proceed in drafting articles of impeachment against President Donald Trump?
Michael Zeldin: The requests by President Trump to Ukrainian President Volodymyr Zelensky in their July 25th phone call, in and of themselves, violated public trust and abused the powers of his office consistent with what the Framers of the Constitution determined to be an impeachable offense. That is, the corrupt exercise of the powers of the office: “high crimes and misdemeanors”
Specifically, President Trump told the newly elected Ukrainian president, “I would like you to do us a favor” and went on to ask Zelensky to investigate the Russian-backed conspiracy theory that the Ukrainians, rather than the Russians, meddled in the 2016 US presidential election. He then went on to ask President Zelensky to “look into” the Bidens (“There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that…so if you can look into it…. It sounds horrible to me.”) So, if one actually reads the rough transcript of the call provided by the White House, as the President has implored, the abusive conduct is there in black and white.
When you add to this evidence the public testimony of multiple impeachment hearing witnesses that President Trump delayed security assistance and a much-desired White House meeting between himself and Zelensky until these requests were undertaken and publicly announced by the Ukrainian president (the so-called “Quid Pro Quo” – a Latin phase meaning “this for that”), it compounds the abusive conduct.
While continuing the investigation will no doubt uncover additional evidence, sufficient evidence exists to draft an abuse of power article of impeachment. Congress has a constitutional imperative to act.
What say you, Robert?
Robert Ray: We don’t impeach presidents for abusive conduct. The Constitution, the framers’ intent as expressed in the constitutional convention and ratification debates as well as the Federalist Papers, and historical practice all point in the direction of what is required in order to remove a President from office: proof by clear and unmistakable evidence of treason, bribery or other high crimes and misdemeanors and that such a crime also constitutes an abuse of office – that is, of the public trust.
Simply put, a standardless or unbounded “abusive conduct” theory of impeachment untethered from actual proof that a crime was committed is an insufficient and, therefore, illegitimate basis to exercise the extreme measure of removing a duly elected President from office.
There’s a remedy for “abusive conduct,” or maladministration of office – it’s called an election, now less than 11 months away.
Zeldin: Robert is correct that it would be impermissible constitutionally to impeach a president for “maladministration of office”. (Translated into plain English: You can’t impeach a president for doing a lousy job.)
Similarly, “abusive conduct,” either as behavior unbecoming the office of the President (e.g. labeling the press the enemy of the people, using profanity at public events, name calling his political rivals) or bad policy decision-making (e.g. separating children from their parents at the border and caging them, unilaterally pulling US troops out of Syria, his handling of hurricane relief aid to Puerto Rico and the Khashoggi murder, etc.) is not grounds for impeachment. Both are matters best addressed at the ballot box.
However, the President’s conduct in this case transcends maladministration or abusive conduct. It constitutes an abuse of power expressly condemned by the Framers of the Constitution. Specifically, in the Federalist Papers No. 65, Alexander Hamilton defined impeachable offenses as “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust.” It relates to offenses committed by public (high) officials who, by virtue of the positions they hold, are under special societal obligations. It is best understood as a breach of trust.
Specifically, President Trump’s solicitation of Zelensky to investigate a political rival and his demands to publicly announce the launch of two probes, according to the impeachment inquiry report, so constitutes a breach of the public trust. Soliciting foreign interference in a US election not only violates the sanctity of US elections but it violates campaign finance laws (foreign nationals cannot contribute in any way to US elections) and concepts of bribery as known to the Framers of the Constitution under Common Law and in modern criminal statutes. The solicitation or acceptance of a bribe under the authority of political office is a serious breach of the public trust and, therefore, impeachable.
Ray: Soliciting foreign interference in an election is not what happened here. And, saying it’s so, without proof that it was so, does not make it so. Requesting foreign assistance with an investigation is not illegal. Indeed, there are international treaties like mutual legal assistance requests that allow this. The fact that the President or his subordinates chose not to proceed through formal channels – while unwise – does not make those efforts illegal.
And, as to the “ask” to President Zelensky in the July 25th phone call, absent proof that it was in fact a demand, from the President of the United States conditioned on or in exchange for a thing of value, no bribery can be shown.
Finally, the flawed theory that this was somehow an illegal “in kind” receipt of a foreign campaign contribution has been expressly rejected by the Criminal Division and the Office of Public Integrity at the Justice Department in Washington, D.C.
I am reminded of one of President Kennedy’s famous press conferences during which he was asked whether he cared to comment on the Republican National Committee (RNC) apparently passing a resolution leading up to an election year that, in their view, he was a failure as president. His response: “I’m sure it was passed unanimously.”
The point being that this impeachment effort is all about politics – not whether an impeachable offense has been committed. Show me where, unlike in the case against President Nixon, there is any bipartisan support for this doomed effort?
Zeldin: Once again, Robert is correct that there are mutual legal assistance treaties that provide for international cooperation in ongoing criminal investigations. The process usually begins in the Office of International Affairs in the Criminal Division of the US Department of Justice and is sent to the equivalent bureau in the requested state. Indeed, there is such a treaty between the US and Ukraine. It is noteworthy that this treaty allows the requested state to deny assistance if it “relates to a political offense”, or if the “execution of the request would prejudice the security or similar essential interests of the Requested State.” The fact that President Trump chose to bypass the treaty process allows for the reasonable inference that it was known to him and his team that following it would not achieve the objective sought: An investigation of the Bidens. Hence, the end run using the Three Amigos’ shadow operation.
Robert and I disagree as to whether a “demand” as opposed to a “request” is required for there to be grounds for a bribery case. First, many bribery and extortion cases are predicated on “requests” understood to be ones that cannot be refused. Second, the President frames his “request” for Zelensky to launch an investigation into 2016 election meddling by saying, “I would like you to find out…”. This is more than just a request; it is a demand. As Lt. Col. Vindman testified, Trump’s requests should be interpreted as “demands”.
As to bipartisan support, there was no such support in the Nixon impeachment until much later in the process. Time will tell if there are any Howard Bakers (the Republican Senator from Tennessee who turned against Nixon in the face of the evidence the Watergate Committee amassed) among the current class of Republican Senators. But their lack of support does not make the President’s conduct less impeachable.
Ray: As the son of a US Army officer and the father of an US Air Force officer, I can tell you that Lt. Col. Vindman’s testimony notwithstanding, President Trump’s request for assistance was just that – a request, not a demand. Last I checked President Zelensky was not in the US chain of command. While a request from the President of the United States can be presumed to be a demand (or an order) to Lt. Col. Vindman, that’s not the case for the leader of a sovereign nation.
This is why proceeding with impeachment based upon presumptions is so precarious. Again, absent clear and unmistakable evidence of an impeachable offense such as the high crime of bribery, the will of the voters should prevail until the election in November 2020.