Are Democrats building a collapsible impeachment?
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© Greg Nash
As impeachment hearings begin, some have raised dubious objections to the process from a constitutional basis. Former acting Attorney General Matthew Whitaker suggested there can be no impeachment since “abuse of power” is not a crime, while University of Chicago Law Professor Steven Calabresi argued that President Trump was denied the Sixth Amendment right to counsel in the closed hearings held by House Democrats.
Neither argument is compelling. The fact is that, if proven, a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet the more immediate problem for House Democrats may not be constitutional but architectural. If Democrats want to move forward primarily or exclusively with the Ukraine controversy, it would be the narrowest impeachment in history. Such a slender foundation is a red flag for architects who operate on the accepted 1:10 ratio between the width and height of a structure.
The physics is simple. The higher the building, the wider the foundation. There is no higher constitutional structure than the impeachment of a sitting president and, for that reason, an impeachment must have a wide foundation in order to be successful. The Ukraine controversy is not such a foundation, and Democrats are building a structurally unsound case that will be lucky to make it to the Senate before collapsing.
For three years, Democrats in Congress have insisted that a variety of criminal and impeachable acts were established as part of the Russia investigation. Even today, critics of Trump insist that, at a minimum, special counsel Robert Mueller found as many as ten acts of criminal obstruction of justice. That is not true as he investigated those acts of obstruction but found evidence of noncriminal motivations that would have made any criminal case highly unlikely to succeed. For that reason, Attorney General William Barr and then Deputy Attorney General Rod Rosenstein agreed there was no case for criminal obstruction.
Putting aside that legal judgment, the glaring absence of any articles of impeachment related to Russia would raise a rather obvious problem. If these criminal or impeachable acts are so clear, why would Democrats not include them in the actual impeachment? There are only two possible reasons why these “clearly established” crimes would not be included. Either they are not established, as some of us have argued, or Democratic leaders do not actually want to remove Trump from office.
For three years, some of us have warned that Democratic leaders clearly were running out the clock on impeachment and doing little in terms of building a case against Trump. House Speaker Nancy Pelosi has been openly hostile to impeachment. Now, after moving at a glacial pace, Democratic leaders are insisting on an impeachment vote on the basis of a presidential phone call made this summer. They are in such a hurry that they have said they will not even seek to compel the testimony of key witnesses like former national security adviser John Bolton.
Ironically, the strongest impeachment was the one that never happened with President Nixon. It was so strong that he resigned shortly before a vote. The contrast with the Nixon impeachment is so concerning in the current context. In the Nixon impeachment, public opinion shifted after months of public hearings and testimony. The evidentiary record showed that Nixon knew of criminal acts and sought to conceal them.
The result was a deeply developed evidentiary record. A presidential impeachment requires this period of maturation of allegations to swing public opinion. In contrast, after years of discussing Russia allegations, Democrats want to move forward on a barely developed evidentiary record and cursory public hearings on this single Ukraine allegation. Democrats also are moving forward on a strictly partisan vote.
That brings us back to architecture. Bad buildings often are built in slapdash fashion. The infamous Fidenae Stadium in Rome was built in a rush to restart the gladiator games, an atmosphere not unlike the current bread and circus frenzy in Washington. It eventually collapsed, killing or injuring 20,000 spectators. The two prior impeachments show the perils of building slender and tall. Take, for instance, the foundation of the Clinton impeachment. I testified during those hearings, as one of the constitutional experts, that President Clinton could be impeached for lying under oath, regardless of the subject matter. Democratic witnesses and members insisted that such perjury is not an impeachable offense when it concerned an affair with a White House intern.
The Clinton impeachment was broader than the one being discussed against Trump but it still was quite narrow. It did involve an alleged knowingly criminal act committed by Clinton. A federal judge later found that Clinton committed perjury, a crime for which he was never charged, despite thousands of Americans who have faced such charges and jail. Yet Clinton was impeached on lying to the grand jury and obstruction of the Monica Lewinsky investigation. Notably, he was not indicted on other allegations, like abuse of power in giving pardons to his own brother or Democratic donor Marc Rich. The result was an acquittal in the Senate by a largely partisan vote. The articles being discussed against Trump would be even narrower and rest primarily on an abuse of power theory.
Then there is the impeachment of President Johnson, which also failed in the Senate. While encompassing nearly a dozen articles, it was narrowly grounded in an alleged violation of the Tenure of Office Act. Johnson removed War Secretary Edwin Stanton in defiance of Congress and that law. The impeachment was indeed weak and narrow, and it failed, with the help of senators from the opposing party who would not stand for such a flawed removal, even of Johnson, who was widely despised.
The Leaning Tower of Pisa is a reminder of those who strive for great heights without worrying about their foundations. If Democrats seek to remove a sitting president, they are laying a foundation that would barely support a bungalow, let alone a constitutional tower. Such a slender impeachment would collapse in a two mile headwind in the Senate. Of course, this may not be designed to last. Much like the Burning Man structure raised each year in the Nevada desert, this impeachment may be intended to last only as long as it takes to burn it to the ground.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.