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Unequal Justice: Democrats Go Surgical and Small on Impeachment

The Trump articles comprise a narrative of corruption, and on close inspection may not be as constrained as they appear at first glance.

Donald Trump has clearly met that standard. He is the nightmare the Founders dreaded. (Photo: WorkingFamiliesParty)

Donald Trump has clearly met that standard. He is the nightmare the Founders dreaded. (Photo: WorkingFamiliesParty)

“You can’t always get what you want

But if you try sometime, you find

You get what you need.”

—Keith Richards & Mick Jagger

Barring a last-minute failure of nerve by House Democrats, Donald John Trump will become only the third President in U.S. history to be impeached. That’s welcome news for anyone concerned with defending the Constitution, upholding the separation of powers among the branches of the federal government, and safeguarding the rule of law in general. It’s also welcome news for anyone interested in ensuring the integrity of our 2020 elections. 

But for progressives and liberals, there is also a measure of disappointment because of the narrow focus on Ukraine in the two articles of impeachment that have been introduced in the House Judiciary Committee, and which will be voted on in the coming days by the entire legislative chamber. If either article is passed by the House, an impeachment trial likely will be held in the Senate sometime in January.

Together, the Trump articles of impeachment comprise a mere nine pages of text. That’s not much, considering the track record of malfeasance Trump has amassed in his first three years in office for everything from using the presidency for personal economic gain in violation of the Constitution’s prohibition on the acceptance of foreign and domestic “emoluments” to incarcerating immigrant children in cages along the southern border and obstructing justice in connection with the investigation conducted by former special counsel Robert Mueller into Russian interference in the 2016 U.S. elections.

Still, the Trump articles comprise a narrative of corruption, and on close inspection may not be as constrained as they appear at first glance. 

Article 1 sketches the well-publicized outlines of the Ukraine scandal. In legalistic but no less stinging terms, it charges Trump with “abuse of power” for “soliciting” the government of Ukraine to interfere in the 2020 American elections by announcing that it would launch investigations aimed at digging up political dirt on former Vice President Joe Biden, and promoting the discredited rightwing conspiracy theory that Ukraine, rather than Russia, meddled with the 2016 American election. It charges Trump with conditioning both the release of $391 million in military assistance and a “head of state meeting” at the White House with Ukrainian President Volodymyr Zelensky on such announcements.

History, as they say, will be the ultimate judge of the course the Democratic leadership has charted.

“In so doing,” Article 1 asserts, Trump acted with the “corrupt purpose” of obtaining the “personal political benefit” of weakening an electoral opponent “in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process.”

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Perhaps most ominously of all, the first article alleges that even after the promised military aid to Ukraine was released following public revelations of the solicitation scheme, Trump “has persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal benefit.”

Article 1 concludes with a dire warning—that Trump will “remain a threat to national security and the Constitution if he is allowed to remain in office.” The message, though slightly sub-textual, is simple and clear: Trump must be stopped now before he sabotages the next election. 

The second article of impeachment charges Trump with “obstruction of Congress” for directing an “unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its ‘sole Power of Impeachment’ under the Constitution.” It accuses Trump of ordering federal agencies to withhold documentation sought by the House, and barring all executive-branch employees—including acting White House Chief of Staff Mick Mulvaney, who is explicitly cited along with eight other administration officials—from cooperating with the impeachment inquiry.    

“In the history of the Republic,” Article 2 asserts, “no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate ‘high Crimes and misdemeanors.’ ”

Both articles of impeachment allege that the President’s conduct in abusing his power and obstructing Congress on Ukraine was “consistent” with his “previous invitations of foreign interference in U.S. elections,” and his “previous efforts to undermine investigations” into such interference. 

These are, of course, thinly veiled references to the Mueller probe, without mentioning the probe by name. They are, in my view, the product of clever draftsmanship, and will permit the House managers selected to prosecute Trump’s impeachment trial in the Senate to introduce elements of the Mueller probe to corroborate Trump’s corrupt intent in his dealings with Ukraine.

Reasonable minds can dispute the wisdom of restricting the scope of the Trump impeachment articles. Going small has the tactical advantage of appealing to moderate House Democrats, especially those who represent swing districts that turned blue in 2018 and fear that going big on impeachment will endanger their own reelection prospects. Going small also has the virtue of allowing a clear and easily understood case to be presented against the president, and offers the albeit-slim possibility of shaming a few conscience-stricken Republicans into voting for conviction in the Senate.

Going small, however, runs the danger of losing sight of the enormity of Trump’s crimes, and of losing support from segments of the public with little specific interest in Ukraine. Any way you analyze it, the decision on how best to proceed is anything but easy. 

History, as they say, will be the ultimate judge of the course the Democratic leadership has charted.

In the meantime, there can be little doubt that we, as a nation, have reached another historical inflection point. As James Madison argued during the Constitutional Convention of 1787, the country’s legal charter needed the remedy of impeachment to hold in check a President who “might betray his trust to foreign powers.” Elaborating on Madison’s reasoning a year later in Federalist (Paper) No. 65, Alexander Hamilton described impeachable offenses as arising from “the misconduct of public men, or in other words from the abuse or violation of some public trust.”

Donald Trump has clearly met that standard. He is the nightmare the Founders dreaded. Though surgical and narrow, the Trump impeachment articles deserve our support.

Bill Blum

Bill Blum

Bill Blum is a former administrative law judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam and a contributing writer for California Lawyer Magazine. His non-fiction work has appeared in a wide variety of publications, ranging from The Nation and The Progressive to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.

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