Yesterday, in response to a detailed 111-page brief outlining the House of Representatives’ case for impeachment, President Trump’s legal team filed a six-page response. It is notable primarily for advancing an audacious and highly dangerous constitutional claim: that a president cannot be impeached for any abuse of power.
This argument been been floating around Republican circles for weeks, and received the endorsements of such luminaries as Matt Whitaker and Alan Dershowitz. But two previous letters by Trump denouncing impeachment — while deranged, incoherent, and dripping with monarchial impunity — have not gone so far as to advance this novel argument.
According to its reasoning, a president can only be impeached for a literal criminal violation, the kind of crime for which you or I could be hauled off to the police station. He cannot be impeached for abusing his power. The first article of impeachment “fails on its face to state an impeachable offense,” his lawyers write. “It alleges no crimes at all, let alone high Crimes and Misdemeanors, as required by the Constitution. In fact, it alleges no violation of law whatsoever.” Trump’s lawyers do deny the facts laid out in the indictment, but they argue that even if Trump was guilty of every action of which he was charged, he cannot be impeached for it.
The first problem with this argument is that it rests on incorrect facts. At the time President Trump was withholding military aid to Ukraine, officials inside his administration worried that he was breaking the law by refusing to allocate spending that had been passed by Congress. But the legality had not been officially settled at the time, which is what allowed Trump’s supporters to insist that he had not broken any laws. But last Thursday, the Government Accountability Office formally ruled that withholding the aid did violate the law.
This ruling doesn’t mean Trump is a criminal who needs to be impeached. But given the weight his supporters have placed on the lack of a formal legal violation, it is quite significant. When you rest your defense upon a technicality, you’re in trouble when the technicality turns out to be technically wrong.
Second, as a historical matter, there is no evidence that impeachment was designed to deal solely with violations of federal law. The framers debated impeachment and the record suggests a broad range of concern, ultimately leaving the definition of “high crimes and misdemeanors” to Congress to decide. Alexander Hamilton defined it as “the abuse or violation of some public trust.” Historically, less than one-third of impeachments of federal officials have charged a criminal violation.
Finally, as a constitutional principle, the notion that a president cannot be removed for abusing his power, but can be removed for a criminal violation, however small, would turn impeachment into a ludicrously ill-fitting solution for the problem it was designed to solve. It implies Trump could not be impeached for promising to pardon anybody who murdered his political rivals, but could be impeached if he resold a mattress that was missing its tags.
Dershowitz has demonstrated the absurdity of the principle himself. In a 2018 book arguing against Trump’s impeachment, he suggested that Trump couldn’t be impeached even if he let Russia have Alaska. “Assume [Russian President Vladimir] Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea,” argued the noted legal scholar. “Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory,” Dershowitz wrote. “That would be terrible, but would it be impeachable? Not under the text of the Constitution.”
Trump’s lawyers are unlikely to emphasize this hypothetical scenario in their presentation to Congress. But it illustrates the size of the wormhole their theory would open up. The U.S. criminal code is designed primarily for ordinary citizens, not for presidents. It does not contemplate every way a corrupt, mentally unfit, or authoritarian chief executive could twist the powers at his disposal.
Trump believes profoundly that a president can use the government exactly as he sees fit. In his mind, “abuse of power” is an oxymoron. To charge him with with “abusing” the presidency makes no more sense than charging him with abusing the Trump Organization for personal gain. And now the authoritarian conviction that Trump believes as a matter of instinct has been sanctified as a formal legal theory, endorsed by presidential lawyers.