Trump Defense Memo Is Wrong About High Crimes and Obstruction

(Bloomberg Opinion) -- President Donald Trump’s lawyers have filed a 110-page memorandum sketching out the defenses they intend to raise at his impeachment trial. Overall, it’s a pretty poor showing. The memo includes some political posturing. It also contains specious claims to the effect that Trump did nothing wrong on his July 25, 2019 phone call. The memo’s centerpiece, however, is a handful of dubious legal arguments about why his impeachment is supposedly illegitimate. There’s nothing here to convince Democrats; and precious little that would give Republicans the cover some may want to vote against removing Trump from office.

The first and least absurd legal argument is that Trump can’t be impeached for abuse of power — the high crime he’s charged with in the first article of impeachment. According to this theory, the words “high crimes and misdemeanors” in the Constitution require some specific previously established crime.  The absence of such a crime, say the lawyers, means the articles of impeachment are facially inadequate and invalid.

The strongest basis for Trump’s position that high crimes and misdemeanors must be identifiable crimes is that previous presidential impeachments have invoked crimes contained in the statute books. Bill Clinton was impeached for lying under oath and for obstruction of justice. Richard Nixon resigned before he could be impeached, but the articles of impeachment that were being considered against him also included obstruction of justice.

As for Andrew Johnson, his alleged “crime” was violating the Tenure of Office Act, an unconstitutional law that purported to block the president from firing cabinet officials without Senate approval. That law was passed by Congress for the specific purpose of impeaching Johnson once he “violated” it. Bizarrely, the law said that breaking it would count as a “high misdemeanor.” Given that history, it’s somewhat misleading to say Johnson was impeached for a criminal act. (A longer discussion of the issue from before the Trump memo is here.)

In any event, it’s pretty clear that the framers of the Constitution did not intend to restrict “high crimes and misdemeanors” to existing statutory crimes. To the contrary, they considered abuse of power to be impeachable on its own terms. One of the delegates to the constitutional convention, Virginia Governor Edmund Randolph, specifically commented that impeachment should be included in the Constitution because “[t]he Executive will have great opportunitys of abusing his power.” Better still, Alexander Hamilton in the Federalist Papers defined high crimes and misdemeanors as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”

The framers weren’t making this up. In England, government officials were impeached for abuse of power and abuse of office, even when there were no specific statutory crimes in question. In 1725, for example, Thomas, Earl of Macclesfield, was impeached by the House of Commons specifically for “Abuse of his Power” and “great Abuse of his Authority.”

The upshot is that the framers wanted the words “high crimes and misdemeanors” to include wrongful acts that were not necessarily contained in the U.S. Code. In 1833, Justice Joseph Story explained that there are “many” impeachable offenses, “not one of which is in the slightest manner alluded to in our statute book.” As he put it, “political offences are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not almost absurd to attempt it.” In other words, Trump’s lawyers are just wrong about this one.

The other vaguely plausible, but wrong, legal argument in the brief is that Trump didn’t obstruct Congress when he prohibited all executive branch officials from cooperating in the impeachment inquiry. Instead, the memo insists, Trump was relying on legal arguments produced by the Office of Legal Counsel of the Department of Justice. One of these — suspiciously revealed only now in an appendix to the memo, and dated January 19, 2020 — argues that the witnesses subpoenaed by the House of Representatives cannot be compelled to testify if they were called before the House formally voted to start the impeachment inquiry. The other OLC memo reasserts the traditional executive branch position that senior advisers to the president are “absolutely immune” from congressional testimony. The idea is supposed to be that Trump can’t have been obstructing Congress if he was simply asserting constitutional privileges endorsed by the OLC.

The brand-new OLC memo deserves a column of its own, as it appears to have been produced specifically as part of Trump’s impeachment defense. (I wrote a column on the notion of absolute immunity back in October.) For now, suffice it to say that the argument in the new memo is completely wrong. It can’t be up to the president or his Department of Justice to say whether the House’s internal procedures for impeachment are constitutionally valid.

The short version is that these OLC memos don’t protect Trump from the obstruction charge. Neither memo would have permitted Trump to declare his complete unwillingness to cooperate with the impeachment inquiry.

Had Trump simply fought individual subpoenas one by one, asserting specific constitutional privileges, the House wouldn’t and couldn’t have impeached him for obstruction of Congress. It was his wholesale rejection of the inquiry that justified impeachment.

The logic is simple: if the president refuses to cooperate in an impeachment inquiry, there’s nothing the House can do except impeach him for that. It can be expected to rely on the courts to vindicate the power of impeachment that the Constitution gives solely to the House.

It’s also noteworthy that the letter forming the basis for the obstruction of Congress article of impeachment was written by White House counsel Pat Cipollone, who is also co-author of the current memo because he’s representing the president in the impeachment trial. That’s troubling and weird: This memo is defending conduct actually committed by one of its authors.

Ultimately, there’s not much in the memo to give hope to any centrist Senators looking to justify voting against removal, either now or before the judgment of history. The legal arguments are notably weak. The factual arguments are closer to laughable.

To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net

This column does not necessarily reflect the opinion of Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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