The case for and against impeachment

There’s been a great deal written about what happened and an enormous amount of rhetoric overlaid onto what Trump did or is alleged to have done. As with any scrutinized activity, there’s a broad expanse of haziness around the edges, some of which is intentionally elevated in order to obscure what actually occurred. Our goal, then, is to explain the central arguments bolstering or undermining the articles of impeachment — to present as clearly as possible the case for and against impeaching the president.

What’s alleged. The first article focuses on the effort to compel Ukraine to announce the two investigations. One would focus on former vice president Joe Biden and his son Hunter, and was centered on an unsupported claim alleging that Biden demanded that a Ukrainian prosecutor be fired in order to protect his son. The other broadly focused on a theory that Ukraine was somehow involved in interfering in the 2016 election, though Trump’s actual request to Zelensky focused mostly on a bizarre conspiracy theory about the hacking of the Democratic National Committee that year.

Each of those investigations would benefit Trump politically — by weakening Biden, a possible 2020 opponent, or by reinforcing Trump’s long-standing claims that the investigation into Russian interference was flawed. Seeking aid for a campaign from a foreign actor is illegal. The article of impeachment notes that this is a pattern for Trump. In 2016, he explicitly asked Russia to aid his campaign by releasing emails it might have obtained from his then-opponent Hillary Clinton.

In order to compel Ukraine to announce the investigations, Article I alleges that Trump leveraged his office. First, he denied Zelensky an official state visit, something the newly inaugurated Ukrainian leader was eager to finalize. Second, it is alleged that he withheld military and security aid to Ukraine to similarly force Zelensky to act.

“President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit,” the article reads. “He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.”

The case for the allegation. Trump, by his own admission, sought the aforementioned investigations. Each is included in the rough transcript of his call with Zelensky in specific terms, including asking for an investigation into Biden. This wasn’t the extent of the push, however. A team of officials working for Trump (and touching base with his personal attorney Rudolph W. Giuliani) repeatedly raised the desired investigations in meetings or messages with Ukrainians from late June until shortly before the impeachment inquiry was launched.

It is also well-established that Trump withheld a White House meeting. Testimony from Ambassador to the European Union Gordon Sondland explicitly outlined how the meeting was leveraged over the course of several months, from late June forward. (Zelensky has yet to visit the White House.) Shortly before the call with Zelensky, for example, an official working with Sondland texted an aide to Zelensky to make the meeting-for-investigations link explicit. He did so after hearing from Sondland — who testified that he believed the instruction derived from a call he’d had with Trump.

Sondland also told the same Zelensky aide in early September that the aid, held since early July, would only be released if Ukraine announced the desired investigations.

Perhaps the most important argument is whether Trump’s desired investigations were actually for his personal benefit. That Trump was so explicit in his requests to Zelensky helps this case. Trump directly asked for an investigation into Joe Biden, who at the time of the call enjoyed a wide lead in the Democratic primary field. He directed Zelensky to work with Attorney General William P. Barr — but also with Giuliani, his personal attorney.

Giuliani, in a May interview with the New York Times, made clear the priority of his sprawling, sketchy — and ongoing — Ukraine work.

“I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop,” he said of the investigations which Trump would later present directly to Zelensky. “And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client, and may turn out to be helpful to my government.”

This article also addresses the question “why now.” In short, the allegation is that Trump sought to influence the 2020 election, which requires that his behavior be addressed prior to voting next year.

The case against the allegation. Trump has repeatedly tried to argue against the idea he was seeking a personal benefit. He’s centered on his request to Zelensky for an investigation into the DNC hacking, noting that when he asked Zelensky for a favor, it was on behalf of “us,” which he presents as being a reference to the United States broadly.

His allies have broadened that defense, attributing to Trump’s July 25 requests broad concerns about corruption and purported Ukrainian interference in the 2016 election. In doing so, they argue that Trump’s requests and the broader effort to compel the launch of those investigations were in the interests of the U.S. and not simply Trump.

It’s also the case that the allegation that Trump withheld the aid in order to compel Ukraine to launch the investigations is not well supported. The initial decision to hold the aid apparently followed the Defense Department’s public announcement that it was coming. It is certainly consistent with Trump’s established views to withhold aid for no reason other than that he opposes foreign aid. What’s more, while the effort to leverage a meeting for the probes is clear, it’s not clear that Trump insisted that aid additionally be used in that way. Trump’s defenders further note that the aid was released without the investigations being launched.

The bigger picture. There are a number of ancillary complaints about the impeachment effort generally, including ones centered on process. Those are largely irrelevant to the content of the article of impeachment, unless Trump’s defenders think that exculpatory evidence was omitted from the process. If so, of course, that conflicts with the administration’s broad effort to reject requests for evidence and testimony (discussed more below).

More broadly, though, the above defense has obvious flaws. Attributing Trump’s requests to Zelensky to concerns about corruption conflicts with the fact that there’s no record of Trump ever publicly expressing serious concern about corruption generally (much less in Ukraine), that aid to Ukraine had been approved previously under Trump without consideration of that issue and that mandated checks on Ukraine’s efforts in fighting corruption had already been conducted by government agencies. The claim that Trump wanted to hold Ukraine to account for interfering in the 2016 election is kneecapped by the fact that there’s no evidence that Ukraine actually engaged in a concerted effort to do so.

Both are further hampered by the way in which Trump made the ask: instead of using established systems to combat purported criminality (like asking the Justice Department to launch a probe), Trump instead went straight to Ukraine — asking a country he allegedly believed to be thoroughly corrupt to take the lead on an investigation that he allegedly believed to be of utmost importance to the U.S.

This overlaps with complaints about process. House Republicans sought to spend more time entertaining theories about improper behavior on the part of others, including Biden. To do so, they demanded that the House call various individuals as witnesses. Assuming that the intent was broader than to simply muddy the water, the goal of such testimony was obviously to try to make a post hoc case for why Trump might want to investigate corruption or Ukrainian interference — which, again, isn’t what he asked of Zelensky.

It’s worth noting additionally the flaw in the “the aid was released anyway” argument: the release of the aid came only after there was public attention drawn to Trump’s interactions with Ukraine and after House Democrats had announced a probe into Trump’s activity.

What’s alleged. Trump’s decision to broadly reject the House’s impeachment inquiry, acting to prevent officials from offering testimony and ordering government agencies to withhold requested documents is well-established. The second article of impeachment argues that, in doing so, Trump prevented the House from fulfilling its constitutionally provided power to conduct impeachment inquiries. The Constitution empowers the legislature as a coequal branch of government; the article charges Trump with encroaching on the House’s power.

Here, too, precedent is cited: the instances documented by special counsel Robert S. Mueller III when Trump impeded Mueller’s probe.

“President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States,” the article states.

The case for the allegation. It’s straightforward on the facts: Trump declined to respond to requests from the House.

Where it gets murkier is on the meaning. The article of impeachment is raising a point about the separation of powers in the Constitution, which is part of the reason that the House Judiciary Committee invited constitutional scholars to testify earlier this month. One, University of North Carolina professor Michael Gerhardt, addressed Trump’s efforts to stand in the way of the inquiry.

“The power to impeach includes the power to investigate, but, if the president can stymie this House’s impeachment inquiry, he can eliminate the impeachment power as a means for holding him and future presidents accountable for serious misconduct,” he testified. “If left unchecked, the president will likely continue his pattern of soliciting foreign interference on his behalf in the next election.”

The case against the allegation. The central argument made here is a broad one: Trump’s declination to participate in the process and, in part, to push the question of the scope of the House’s power to the courts is not impeachable.

George Washington University professor Johnathan Turley summarized that case.

“If you impeach a president, if you make a high crime and misdemeanor out of going to the courts, it is an abuse of power. It’s your abuse of power,” he said. “You are doing precisely what you’re criticizing the president for doing.”

The bigger picture. It seems likely that the framing of this article was meant to appeal specifically to the self-interest of those in the House who are voting on it. Should the president be allowed to dictate the extent to which the House can carry out its duties?

So far, it seems, views of that case break down almost entirely along party lines.