(Bloomberg Opinion) --
President Donald Trump’s legal team wrapped up its three-day defense presentation in the Senate impeachment trial on Tuesday. The president’s lawyers wound up taking up less than half of their allotted time, which doesn’t necessarily mean anything — after all, the House managers who played the prosecutorial role took up all 24 hours in part by making many of their points multiple times. Keeping the defense short might be thought of as a strategy, rather than an indication of a lack of anything useful to say.
In this case, however? It’s really astonishing how unimpressive their overall case turned out to be.
It might have been different if persuasion had really been required, but there simply aren’t 20 Republican senators who might even consider voting to remove Trump from office (so that along with all 47 Democrats they could reach the required two-thirds), let alone the 30 or more who realistically are needed to provide cover for each other. And of the 53 Republicans, few seem to feel the need for strong reasons to stick with the president.
In part, the problem is that the defense lawyers’ attempt to knock down the factual case against Trump just didn’t work to begin with. And to the extent that a case against the House’s accusations might have been viable — the first article of impeachment says that Trump withheld congressionally approved security assistance and a presidential White House meeting to pressure Ukraine to announce two investigations, one of some fantastical Ukrainian scheme to influence the 2016 U.S. presidential election, and the other of a top Democratic rival, former Vice President Joe Biden, and his son — it was fatally undermined by the news of former National Security Adviser John Bolton’s confirmation of Trump’s direct participation in the plot in his upcoming book.
In fact, that track was so unsuccessful that by Tuesday night, some Republican Senators were willing to abandon it and accept that, yes, Trump did what he obviously did.
This gets us to what remains of the president’s defense: the claim on Monday night by defense lawyer Alan Dershowitz that abuse of power is not an impeachable offense. As a serious position, it falls flat. Deputy White House Counsel Patrick Philbin recapped the argument on Tuesday, and it boiled down to two preposterous assertions. One is that by eliminating “maladministration” from the constitutional grounds for impeachment, the framers were also removing “abuse of power,” even though — and I’ll admit I’m not a scholar of 18th-century legal terms, but neither are they — “maladministration” means something completely different. The framers removed it because they didn’t want a president impeached for incompetence; that is, for bad administration of the government. Rightly so: President Jimmy Carter should not have been impeached and removed for being bad at presidenting. For that matter, Trump should not be impeached and removed for being bad at presidenting. What that has to do with abuse of power, I couldn’t guess.
And then Philbin argued that the framers went with “treason, bribery, and high crimes and misdemeanors” because they always chose precise terms, not vague ones, in drafting the Constitution. C’mon. That would obviously be news to anyone who has read the document, especially the incredibly vague Article II, the part that sets up the presidency. And of course the phrase “high crimes and misdemeanors,” the relevant passage here, doesn’t have any precise obvious meaning. What’s worse for the president’s case is that scholars who have studied the historical meaning of “high crimes and misdemeanors” wind up with something that looks a lot like “abuse of power.” High crimes and misdemeanors are important ones against the nation, and ones that pertain specifically to the use — the misuse — of the president’s formal powers.
Dershowitz and Philbin are free to disagree, and Republican senators looking for any available lifeboat are free to clamber onto this one, but that doesn’t mean the rest of us have to take it seriously. Of course “abuse of power” is grounds, if anything is grounds, for removing a president through the impeachment and conviction process. Indeed, the notion of abuse of power is the powerful answer to those who complain about thwarting the will of the people by removing the duly elected president. After all, by electing a president, the nation confers on him or her certain constitutional and statutory powers, but only those powers. If the president misuses them, that’s a form of overstepping that grant of authority. It means the president is not governing as elected, but instead is governing unconstitutionally. Then, and especially then, it becomes necessary to do something about it, with impeachment and removal the ultimate way to ensure that a president is only doing what he or she is authorized to do.
And, yes, that abuse of power could take the form of doing things that would otherwise be allowed under the constitution but doing them improperly. That is what “abuse of power” means!
Dershowitz and others also made the case that many presidents have abused the powers of the office, and under that standard would have been subject to impeachment and removal. That’s correct. President Lyndon Johnson deceived the nation about a naval incident in the Gulf of Tonkin in 1964 to win congressional authorization for the Vietnam War; President Ronald Reagan sold arms to Iran despite a U.S. trade embargo and improperly funneled the money to Nicaraguan Contra rebels fighting that country’s communist government; President George W. Bush presided over the the decision to use interrogation techniques considered torture under international law and at least stretched the truth to justify the invasion of Iraq; fill in your own favorite. I’d guess that all 45 U.S. presidents have probably abused the power of the office in some way. But only three, or four if we count President Richard Nixon’s resignation before an impeachment trial could begin, have been impeached and only Nixon was forced out of office. That’s because impeachment and removal is a political standard, not a legal one, and Congress has correctly proven reluctant to wield it if there were good alternatives.
The classic example was the Iran-Contra affair. It may well have been impeachable. But Reagan took responsibility, rid his administration of several of those involved, accepted a new White House chief of staff foisted on him by Congress and changed his own behavior, all of which was sufficient to deflate any serious drive for impeachment. It’s not hard to imagine that had Trump taken similar steps, the House would have settled for oversight hearings and at most a censure resolution. Instead … well, this one turned out differently.
Fortunately, I doubt that many people outside of 1600 Pennsylvania Avenue take this argument seriously, including those who are going to hide behind it right now, because the idea that a president can abuse the powers of the office and there’s just nothing anyone can do about it (and remember, like all recent presidents, Trump maintains that he can’t be indicted while in office) is a scary one indeed. But it’s not healthy to have a political party making the claim. On the whole, I’d rather have Republicans pretend that the facts are not the facts than to pretend that they believe that the presidency is above the law.
1. Excellent Matt Glassman item at the Monkey Cage on the first week of the impeachment trial.
2. Heather Hurlburt on the Trump peace plan.
3. Dan Drezner on Trump’s “all is well” presidency as a strength and a weakness.
4. Melissa Murray at A House Divided on Supreme Court Justice Clarence Thomas and race, patriarchy and conservatism.
5. Ariel Edwards-Levy on the polling evidence of how electability is playing out. Major caveat: We’re all notoriously unreliable when we report how we’re making our voting decisions.
6. Jonathan Chait on Senator Bernie Sanders and electability. A bit strong, but the basic point is pretty much what I’ve said: We can’t know much about who will run better in the fall, and it’s easy to overestimate candidate effects anyway, but nominating Sanders would involve accepting some real downside risk. Also: What Sean Trende says.
7. And Harry Enten on Iowa and expectations.
To contact the editor responsible for this story: Jonathan Landman at jlandman4@bloomberg.net
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
©2020 Bloomberg L.P.