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Is Trump Above the Law?

Donald Trump; drawing by Tom Bachtell

Donald Trump’s impeachment by the House of Representatives marks just the third time in history that a president of the United States has had to face trial in the Senate. The charges in the articles of impeachment drawn up by the House Judiciary Committee against Trump differ in important ways from those brought against Presidents Andrew Johnson and Bill Clinton, and they deserve close scrutiny. Trump’s possible defenses also merit careful analysis. Even if Trump does not send a lawyer to the Senate to defend him, he will be defended by Republican senators. And because it appears highly unlikely that he will be convicted by the requisite two thirds of the Senate, it is also worth exploring the implications of impeachment without removal from office, both for Trump’s presidency and for the future of American constitutional democracy.

1.

The first article of impeachment against Trump alleges that he “abused the powers of the Presidency” in that he “solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election.” It goes on to delineate three instances of his abuse of office. First, the article says that Trump “corruptly solicited” investigations “that would benefit his reelection,” one into former vice president Joe Biden and the other into the “discredited theory…that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election.” Second, it says that “with the same corrupt motives,” Trump made both the release of $391 million in military aid to Ukraine and a White House meeting with the Ukrainian president conditional on Ukraine’s announcement that it would undertake these investigations. Third, the article says that although Trump released the aid after his actions became publicly known, he “persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal political benefit.”

Finally, in a clause that starts with the legal word “wherefore,” the article asserts that Trump “will remain a threat to national security and the Constitution if allowed to remain in office” and that he “has acted in a manner grossly incompatible with self-governance and the rule of law.” It concludes that Trump “thus warrants impeachment and trial, removal from office, and disqualification” from future government service.

The charge of abuse of office for personal gain fits neatly into the sense of high crimes and misdemeanors familiar to the framers when they wrote the Constitution. They were particularly concerned that a sitting president would abuse his office to get reelected.1

Nevertheless, there is a range of defenses that Trump or his proxies could raise to the charge. One is purely fact-based. The president’s supporters can claim, as some did in the House, that Trump never conditioned aid or a White House meeting on Ukraine’s announcement of the investigations. In short, there was no quid pro quo.

The main trouble with this defense is that…


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