As the U.S. House of Representatives hurtles toward impeachment ahead of the holidays, it is appropriate to consider, in as dispassionate a way as possible, what really is at issue for the country to decide. One must begin with the words of the Constitution. The removal of the President from office necessarily proceeds only with a determination, through House impeachment and upon conviction by a two-thirds majority in the Senate following trial, that “treason, bribery, or other high crimes and misdemeanors” have been proved. What constitutes a “high” crime? Alexander Hamilton provided the answer in the Federalist papers: only those offenses within Congress’s appropriate jurisdiction that constitute “the abuse or violation of some public trust.”
So while it is fashionable at the moment for some to argue that President Trump is removable from office simply if it is proved that he abused the power of his office during his July 25 call with Ukrainian President Zelensky, the Constitution requires more. To ignore the requirement of proving that a crime was committed is to sidestep the constitutional design as well as the lessons of history. A well-founded article of impeachment therefore must allege both that a crime has been committed and that such crime constitutes an abuse of the President’s office.
The problem for those pushing impeachment is that there appears to be insufficient evidence to prove that Trump committed a crime. Half the country at present does seem prepared to conclude, on the basis of the summary of the Trump-Zelensky call released by the White House on Sept. 25, that Trump at least raised the prospect of an unlawful quid pro quo. The theory seems to be that Trump proposed an exchange of something of personal benefit to himself in return for an official act by the U.S. government. On one side of that alleged quid pro quo would be the public announcement of an investigation by Ukraine into a rival presidential candidate, former Vice President Joe Biden, and a member of Biden’s family. On the other: the release of temporarily withheld foreign aid, including military assistance.
The problem with this legal theory is that an unlawful quid pro quo is limited to those arrangements that are “corrupt”–that is to say, only those that are clearly and unmistakably improper and therefore illegal. But in the eyes of the law, the specific, measurable benefit that an investigation against the Bidens might bring Trump is nebulous. There is a serious question as to whether it could ever constitute a criminally illegal foreign campaign contribution of personal benefit to President Trump. Indeed, the Office of Legal Counsel and the Criminal Division at the Justice Department apparently have already concluded it couldn’t. Just as important, the U.S. Supreme Court and lower federal courts have struggled since at least the early 1990s with application of the federal anticorruption laws to situations like this, where an “in kind” benefit in the form of campaign interference or assistance is alleged to be illegal.
In my view, a fair and better legal argument can be made in this context that only an explicit, as opposed to an implied, quid pro quo would be sufficient to find criminal illegality as the result of President Trump’s words on the call with President Zelensky. What’s the difference? Instead of President Trump saying to his counterpart in Ukraine in words or substance, “Do me a favor …” he would have to have said, “Here’s the deal …” and followed up by explicitly linking an investigation of the Bidens to the provision of U.S. military assistance. None of that, of course, is what was said.