the national interest

Two Trump Lawyers Dismissed His Own Constitutional Argument Against Impeachment

Photo: Drew Angerer/Getty Images

President Trump and his legal team have advanced the astonishing argument that a president cannot be impeached for abuse of power — any abuse of power, unless it involves a federal crime. If a president offered pardons to people for murdering his political enemies? Nice and legal, and therefore not an impeachable offense.

This analysis, which is wildly at odds with the historical record of what the Framers intended impeachment to do, has received almost no support from legal scholars. Two notable lawyers have added their names to the long roster of critics: Jonathan Turley and William Barr.

Turley, in a Washington Post op-ed, notes that the Framers “often spoke of impeachable conduct in noncriminal terms.” He writes, “There is a vast array of harmful and corrupt acts that a president can commit outside of the criminal code,” and adopting the view that only crimes are impeachable “would create lasting harm for the constitutional system.” Turley of course was selected by House Republicans to testify against impeachment.

Meanwhile, reporter Charlie Savage notes that Barr argued in 2018 that a president can be impeached for abuse of power. Barr, unlike Turley, is not volunteering this point of view. He made it in 2018 as a way to argue against prosecuting Trump for obstruction of justice. Barr’s theory at the time was helpful to Trump deflecting the legal threat he faced at the moment (Mueller’s obstruction probe). His device was to swat away that threat by offering up impeachment as an alternative method of accountability. “The determination whether the president is making decisions based on ‘improper’ motives or whether he is ‘faithfully’ discharging his responsibilities is left to the people,” he argued, “through the election process, and the Congress, through the impeachment process.”

Trump of course opposes all mechanisms of accountability. Anybody who investigates Trump — the Department of Justice, Congress, a state attorney general, a judge presiding over a lawsuit by victims of his swindling — is corrupt, biased, engaging in a witch hunt, and so on. Barr was hired to to back him up. Now that Trump is being impeached for abuse of power, anybody waiting for Barr to stand up and reaffirm his old position that presidents can be impeached for this very thing will be waiting a long time. Still, the fact that even a fanatical supporter of executive power — at least when the executive is Republican — William Barr dismissed Trump’s claim to impunity shows just how radical it is.

Two Trump Lawyers Dismissed His Own Constitutional Argument