Author: Henry Wray

George Floyd’s tragic death unleashed unprecedented national outrage over police killings of African Americans. Unfortunately, the directions this outrage has taken so far offer little hope for real change either in police outcomes or other racial disparities that underlie them. Instead, they promote more polarization and divisiveness through distortions from activists and much of the media, posturing and demagoguery from politicians, and symbolism over substance. These reactions feature heavy doses of tribalistic, stereotyping rhetoric that demeans both Blacks and Whites and impedes constructive debate. Until we come together in honest, good faith dialogue the problems will only grow worse.

Black Lives Matter (BLM) along with other activists and most media promote the narrative that police are engaged in ongoing lethal warfare against Blacks. This is demonstrably false. Even worse, measures they advocate would cost Black lives rather than save them and exacerbate racial disparities.            

State and local politicians cravenly attack their police departments to deflect attention from their own leadership failures. They control the police and bear direct responsibility for police performance. If cops systematically engage in bad practices, these officials allow it. If police unions have too much power, these officials approved it. Whatever excess funding or responsibilities police have these officials provided.

Symbolic actions coming from many quarters, including Whites intent on demonstrating their “wokeness,” are shallow and largely empty gestures. Destroying statues, renaming things, confessing to White privilege and racism, as well as other forms of virtue-signaling do nothing to save Black lives. Protests over Floyd’s death and more recent incidents have descended into riots and looting, sometimes apparently spearheaded by White anarchists. The ongoing protests in Portland seem to be an end in themselves and a form of local sport that has turned deadly. These actions repel rather than attract support for their supposed causes. 

The overheated rhetoric that permeates social media, academia, and much of what passes for civil discourse likewise turns off well-meaning people who would be receptive to rational debate. Branding everyone and everything “racist” trivializes that concept and robs it of meaning. Many of today’s “anti-racist” practitioners (often Whites) insult all races and discourage dialog. They seek to shoehorn everyone into monolithic tribal groups defined by ridiculous stereotypes. Whites are privileged racists who benefit from America’s defining history of suppressing minorities. Blacks are hapless victims who lack individual agency and the ability to affect their own destinies. As one (African American) reviewer observed, Robin DiAngelo’s best-selling book White Fragility, a prime example of contemporary anti-racist dogma, “entails an elaborate and pitilessly dehumanizing condescension toward Black people.” Similarly, another reviewer described her book as based on the “unstated assumption . . . that all black people are emotionally immature and child-like.”

What, then, can be done to harness the outrage into something productive? Serious efforts to reduce racial disparities in fatal police encounters must start with dispassionate, fact-based analysis. Two hard truths lie at the heart of the problem:

1. The cause of disproportionate Black deaths at the hands of police is not racism but the disproportionate rate of Black violent crime, overwhelmingly committed against Black victims. Disproportionate police killings of Blacks will subside only when disproportionate Black violent crime subsides. This will also save many more Black lives than police take.
2. Disproportionate Black violent crime, in turn, stems from a host of other racial disparities that persist  after centuries of true race discrimination. For example, Black males on average earn less money, are less likely to graduate from college, and die at younger ages than other American men. Until these underlying disparities are addressed, disproportionate Black crime is unlikely to subside.

BLM activists and their allies ignore the first truth; BLM critics and their allies ignore the second. Until all sides acknowledge and address both, little will change.

Remedying broader racial disparities requires attacking their root causes. Some are obvious, such as dangerous, drug- and gang-ridden neighborhoods and failing public schools. At a bare minimum, every American deserves physical security and every child deserves a decent education in a safe environment that is conducive to learning. Other root causes involve more complex problems such as entrenched segregated housing patterns and a range of sociological and cultural issues.

Paradoxically, activists like BLM and “woke” elites promote policies that diminish rather than enhance Black lives. This is manifestly true of calls to “defund” the police. Police reforms are appropriate to reduce excess use of force, enhance accountability, and improve relationships between police and minority citizens. However, reducing police presence, especially in high-crime neighborhoods, will increase innocent Black deaths. Unsurprisingly, few African Americans favor this approach. They want better not less policing.

Similarly, activists undermine the cause of racial justice by disparaging as “White values” such obviously beneficial paths to achievement as the nuclear family, traditional education, rational thinking, and individual responsibility. This also is hypocritical since elites embrace these values in their own lives and for their own families. Along the same lines, activists as well as academic and media elites increasingly espouse once-fringe “critical race theory” that portrays the United States as an irredeemably White supremacist country defined by “institutional” and “systemic” racism whose stated ideals are nothing but lies. These spurious charges not only turn off most Americans but also create what one critic describes as an ”activist black hole” that offers only a cynical message of victimhood and despair.

Another commentator noted that such assertions “create in the minds of students and teachers of all races a vision of America that is imbued with a permanent malignancy that is hostile to the dreams of students of color” and promotes “the soft bigotry of low expectations.” He contrasted this with the positive message of former President Obama, who argued that a constructive path forward for African Americans calls for–

“taking full responsibility for our own lives—by demanding more from our fathers, and spending more time with our children, and reading to them, and teaching them that, while they may face challenges and discrimination in their own lives, they must never succumb to despair or cynicism. They must always believe that they can write their own destiny.”

As President Obama recognized, the United States, like most countries, has a complex history that features both shameful episodes and those that inspire hope for the future. Our Nation has consistently evolved to reverse past shortcomings. It practiced slavery and engaged in legalized race discrimination but later fought a war to end slavery, outlawed race discrimination, and enacted numerous laws to promote racial equality. Anyone serious about eliminating racial disparities in police encounters and other areas needs to embrace and build upon this foundation—not tear it down.

The recently concluded Trump impeachment had no upsides and many downsides. It proved to be counterproductive at the end of the day. Trump avoided any accountability for his misbehavior regarding Ukraine and, unsurprisingly, claimed total “vindication” by his acquittal. It apparently benefited him politically judging from his rising poll numbers since the impeachment began. It certainly seems to have emboldened him. The impeachment and its aftermath intensified the visceral contempt for each other among the combatants. Witness the infantile conduct of Trump and Speaker Pelosi at this year’s State of the Union address. It provided yet another example of Washington’s partisan dysfunction and added to the polarization and pervasive cynicism that infect our national politics.

It didn’t have to be this way. From start to finish, the most reasonable take on the impeachment case was that Trump’s behavior was seriously inappropriate but not sufficiently egregious to justify the ultimate sanction of removal from office. The Democrats’ impeachment project was politically motivated overreach based on ambiguous and incomplete facts as well as dubious legal theories. It never had a chance to succeed. However, there’s a good chance that censuring Trump rather than impeaching him could have achieved significant bipartisan support and succeeded. It certainly would have been much harder for Republicans to vote against censure than impeachment.

A concurrent resolution of Congress to censure Trump was the best option. Concurrent resolutions require only a simple majority to pass in each chamber and are not subject to veto. Such a resolution probably would have picked up some Republican votes in the House and attracted at least the four Republican votes needed to pass the Senate. While carrying no legal consequences, a bipartisan, bicameral condemnation of Trump would have denied him any basis to claim validation of his conduct. While we’ll never know, it might even have chastened Trump to some degree. What we do know is that the failed impeachment had the opposite effect.  

What can be learned from the failed effort to remove President Trump from office? This is more than an abstract question. If Trump wins reelection and Democrats retain control of the House, there surely will be pressure for more impeachments. Even if political alignments change, the approach taken in this case could signal greater openness to impeachment as a response to future disputes between a president and Congress.

Key takeaways

The impeachment was destined to fail from the outset. Democrats launched their impeachment investigation as a partisan project and it never moved beyond that. After voting to impeach, they continued to treat it as a political exercise by holding a signing ceremony complete with souvenir pens and then delaying submission of the supposedly urgent impeachment articles to the Senate. The impeachment attracted zero Republican votes in the House and a single Republican vote on one article in the Senate. It failed to gain ground with the public despite heavy media promotion. Opinion polls hardly budged throughout the process; they consistently showed Democrats strongly in favor, Republicans strongly opposed, and independents roughly split.

House Democrats never attempted an impartial investigation. The Ukraine-related allegations against Trump certainly warranted congressional investigation. Had Democrats investigated them through the regular order and in a less partisan manner, the outcome might have been different. Once it became clear that impeachment would not gain bipartisan support, they could have opted to censure Trump instead. A censure resolution probably would have drawn significant Republican votes and passed both the House and Senate. However, Democrats made no effort to follow the regular order or work with Republicans. The investigation was assigned to House Intelligence Committee Chairman Adam Schiff, a highly partisan and long-time Trump antagonist, despite having nothing to do with intelligence matters. It was quickly designated an “impeachment” investigation. From then on, there was no chance of attracting Republicans or for Democrats to step back from impeachment.

Senate Republicans didn’t conduct a meaningful trial. The Senate was derelict in not obtaining witness testimony. There was no plausible justification for not calling John Bolton, at a bare minimum. The whistleblower also would have been an important witness. He could have explained his interactions with Democrats before filing his complaint and elaborated on the information provided to him. It doesn’t matter that the House failed to do its job or that Democrats probably didn’t really want witnesses either. Nor does it matter that witnesses might have extended the process. The Senate could have suspended the trial and initially obtained testimony through depositions.      

Hardly any participants in the impeachment process distinguished themselves. The opposing factions mirrored each other in many ways, none of which provided a good look:

• The House impeached Trump on an overwhelmingly partisan basis without fully developing the facts; the Senate acquitted him on an overwhelmingly partisan basis without fully developing the facts.
• During the House and Senate proceedings, advocates on both sides regularly distorted what facts they had and engaged in hyperbole and demagoguery.
• The media largely assumed the role of cheerleaders for one side or the other, depending on their biases, and served as uncritical echo chambers for their favored side. As a result, media coverage was sorely lacking in objective reporting and thoughtful analysis.
• Members of Congress on both sides acted like craven partisans. Many Republicans surely recognized that Trump’s behavior was improper but very few voiced even the slightest criticism of him. Many Democrats no doubt understood that impeachment was an overreach, yet only three House Democrats voted against it and not a single Democratic senator voted against conviction on either impeachment article.
• For his part, Trump attempted to stonewall the process from start to finish and spouted his usual malign nonsense throughout.    

The only person to clearly distinguish himself was Chief Justice Roberts, who presided over the Senate trial with remarkable patience and equanimity. Mitt Romney might deserve honorable mention for at least showing some independence.

House Democrats lowered the bar for impeachment. Democrats struggled to fit their case within the constitutional grounds for impeachment, floating different theories at different times. The “abuse of power” article they finally settled on was essentially that Trump exercised legitimate powers of his office “corruptly,” i.e., with self-serving political motives. However, presidents regularly factor their political interests into their actions and have vast legitimate authority to take actions that stand to benefit them politically. The Democrats’ theory of the case—that Trump elevated his political interests over the national interest—could convert a wide range of policy disputes between Congress and a president into potential impeachments.

Key lessons learned

Partisan impeachments are fundamentally a bad idea. Nancy Pelosi was right the first time when she counseled against them. Impeachments that lack significant bipartisan and broad-based public support are bound to fail and result only in further degrading our politics.  

Don’t be too quick to attach the “impeachment” label to investigations of presidential misconduct. Once the impeachment card is played, both sides dig in and perspectives harden. This leaves little room to bridge political divides and explore bipartisan responses. Better to wait until it’s likely that impeachment and conviction are both viable options.   

If the House is determined to impeach, do a thorough job of it. House Democrats rushed through Trump’s impeachment with incomplete facts and squishy legal theories and then pressed the Senate to fill in the blanks. It was a losing strategy. They also punted on pursuing  litigation to get more facts that would also have established important judicial precedents to demarcate the rights of the legislative and executive branches in future impeachment cases.  

Impeachment should be limited to presidential misconduct that is unlawful by some objective standard. It is and should be exceedingly hard to make an impeachment case out of presidential conduct that is legal on its face. Impeachable conduct need not be limited to violations of criminal statutes; it can include violations of the Constitution. In order to be impeachable, however, constitutional abuses of power should involve an action that clearly exceeds a president’s constitutional authority or a failure by the president to carry out a constitutional duty. An impeachment case that turns entirely on the president’s subjective motives is problematic at best.

If there’s a next time, do it right. Follow the regular order and normal jurisdictional lines in conducting investigations of presidential misconduct. Take the time to develop the relevant facts as thoroughly as possible, pursing litigation if necessary. Try to work with the minority party. Don’t go the impeachment route unless and until the facts and law clearly justify that approach.    

The next (and perhaps last) bit of drama in the impeachment saga is likely to be over whether to allow witnesses. Democrats are pressing to call Trump’s former National Security Advisor, John Bolton, his Chief of Staff, Mick Mulvaney, and two lesser White House officials. Most Republicans strongly resist having any witnesses and threaten to call witnesses of their own if the Democrats prevail on this issue.

The debate over witnesses is somewhat disingenuous on both sides. Democrats chose not to pursue Bolton and the others during their House investigation and the sincerity of their demand for witnesses on the Senate side is open to question. Recognizing that Trump will be acquitted, they insist that the Senate trial is a “sham” and a “cover-up.” Obtaining the right to call witnesses could undermine this key talking point. Democrats also could regret some “reciprocal” witnesses Republicans might call, such as the whistleblower. Lead impeacher Adam Schiff suddenly lost interest in hearing from him when it was revealed that he contacted Schiff’s committee before submitting his complaint.

The Republican side of the debate is equally hypocritical. Trump and his allies emphasize the lack of direct evidence concerning Trump’s involvement and motives. At the same time, they are dead set against hearing from individuals who could supply such evidence.       

There’s a way to sidestep this Kabuki dance and quickly resolve the most important part of the witness issue. As a practical matter, the only proposed Democratic witness who’s likely to provide evidence relating directly to Trump is Bolton. Trump probably would invoke executive privilege to effectively prevent Mulvaney and the other current White House staffers from testifying without a protracted court fight. Bolton, however, is no longer subject to Trump’s direction and he has expressed willingness to testify if subpoenaed. Presumably, this means he would not feel constrained by an executive privilege claim against his testimony. Bolton also has hinted that he can offer valuable insights.

But why wait for a subpoena? It may well never come. Even if it does, Trump’s forces might sue to quash it, thereby causing substantial delay. If Bolton has something to say, he should take the initiative and voluntarily say it now in public for all to hear. There’s no legal obstacle to doing this. Bolton surely has a First Amendment right to speak out. He owes that much to the American people if indeed he has important new information to provide. As Schiff correctly noted in his Senate presentation, whatever Bolton and others know will eventually come out in a book or another form. It would be unconscionable for Bolton to hold off until then.

There are any number of reasons to consider Donald Trump unfit for office. Even many of those who support him, either affirmatively or as the least of available evils, surely recognize his massive character and other flaws. He’s probably the first president in history who strives to be polarizing and divisive.  One of Trump’s negative traits is his knack for bringing out the worst in his opponents and reducing them to his level. Many never accepted his election and have succumbed to the urge to end his presidency by any means necessary. His recent impeachment by the House of Representatives is an example.

Trump’s impeachment was a wholly partisan exercise in the House that is destined to end with a partisan acquittal in the Senate, if it gets that far. After asserting an urgent need to remove Trump from office that couldn’t await the 2020 election, House Democrats are now in no hurry for a Senate trial. They are apparently stalling in order to pressure the Senate to call witnesses and develop additional evidence they chose not to pursue. They may even prefer to delay a Senate trial indefinitely. These tactics reinforce the partisan nature of the impeachment and signal Democrats’ lack of seriousness about it.

One likely reason this effort attracted zero bipartisan support and failed to generate broad public approval is the weakness of the case for impeachment. It rests on very thin evidence and dubious legal grounds. The two most serious charges in the impeachment narrative—that Trump demanded Ukrainian President Zelensky “dig up” or even manufacture “dirt” on Joe Biden and that he conditioned military aid for Ukraine on Zelensky’s agreement to do so—are unsupported by the evidence. The principal legal ground—that Trump abused his power by subordinating the national interest to his personal political interests—is a vague and elastic standard that could apply any time a president is accused of placing politics above the accusers’ version of good public policy.  

The impeachment’s political impact on the 2020 election is hard to predict. Whatever bearing the information it developed has on Trump’s fitness for office will be left, appropriately, for the voters to decide. What’s easier to predict is that this impeachment will do further and perhaps lasting damage to our already fractured national politics. In the short term, it’s sure to drive political polarization and public cynicism above their already high levels. In the longer term, there’s a real danger that impeachment will become the normal recourse in the future for addressing policy disputes when different parties control the presidency and the House. Indeed, if Trump is reelected and Democrats retain the House, there’s a good chance they’ll find a reason to impeach him again. 

Trump brings many problems on himself through his impulsive, reckless and selfish behavior. Members of Congress of both parties also deserve much blame as they regularly engage in either knee-jerk support or opposition concerning all things Trump. Other institutions that are important to the health of our democracy are complicit as well.

Many in the media have foregone journalistic principles of objectivity when it comes to Trump. After spending more than two futile years flogging evidence-free conspiracy theories about Trump and Russian election interference, they jumped enthusiastically to the Ukraine impeachment bandwagon.  Throughout the impeachment process, reporters and opinion writers have behaved like group-thinking cheerleaders, providing an uncritical echo chamber for any and all allegations against Trump. In typical fashion, a December 14 New York Times editorial called the case for impeachment “short, simple and damning,” relying on key allegations that have no support in the evidence:

“President Donald Trump abused the power of his office by strong-arming Ukraine, a vulnerable ally, holding up hundreds of millions of dollars in military aid until it agreed to help him influence the 2020 election by digging up dirt on a political rival.”

Such reflexive anti-Trumpism deprives the public of much-needed impartial reporting and thoughtful commentary. It also further undermines the media’s already abysmal credibility with the public. 

Anti-Trump lawyers have likewise abandoned sound constitutional analysis and basic concepts of due process in their zeal to undermine Trump’s legitimacy. One notable example is Harvard law professor Laurence Tribe. (See here and here.) Lawyers selected by House Democrats to testify at the impeachment hearings advocated sweeping grounds for impeachment that have no clear limits or objective standards. Like the media, they took liberties with the facts and engaged in ridiculously exaggerated rhetoric. One of them, Michael Gerhardt, testified:

“The president’s serious misconduct, including bribery, soliciting a personal favor from a foreign leader in exchange for his exercise of power, and obstruction of justice and Congress are worse than the misconduct of any prior president, including what previous presidents who faced impeachment have done or been accused of doing. * * * If Congress fails to impeach here, then the impeachment process has lost all meaning and, along with that, our Constitution’s carefully crafted safeguards against the establishment of a king on American soil.”

Trump is hardly a sympathetic figure and it may be tempting to lower the impeachment bar for him. Ultimately, however, this is an exercise in futility that will accomplish nothing positive and threatens to seriously harm the Nation in the long run. Exactly what constitutes adequate grounds for impeachment is subject to legitimate debate in individual cases. Nevertheless, there should be one overriding test that applies to Trump as well as any other president: Impeachment should not be pursued without significant bipartisan and broad-based public support. Any impeachment that cannot meet this test is almost sure to fail and result only in more political discord.

Republicans should have applied this test to the Clinton impeachment and paid a price for not doing so. It’s a test that House Speaker Nancy Pelosi wisely embraced until recently, observing “impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path.” It’s too bad she reversed herself, apparently caving to pressure from her left flank. Our Nation would be better served if Democrats and their allies dropped their flawed impeachment effort and instead concentrated on finding a way to oust Trump at the ballot box in 2020.

Democrats claim to have an overwhelming case for impeaching President Trump. Much of the media agree, enthusiastically supporting impeachment more as cheerleaders than objective journalists.  Trump’s reaction is unhinged and mean-spirited even by his usual abysmal standards. He spews obvious falsehoods, levels scurrilous personal attacks, and spouts other nonsense. Trump’s supporters in Congress and elsewhere focus primarily on perhaps justified but still overwrought objections to the impeachment process. Largely missing in all this sound and fury is dispassionate, fact-based analysis of the case against Trump. What does the evidence really prove and does it clearly establish valid legal grounds for Trump’s impeachment and removal from office? Importantly, would any other president be impeached on this record?

The case for impeachment is based largely on second-hand testimony and inferences drawn from ambiguous facts.

Impeachers maintain that there is a mountain of uncontroverted incriminating evidence against Trump. This is far from true. Considerable uncontested evidence provides background and context for the impeachment charges. However, evidence directly relevant to Trump’s guilt or innocence is quite limited. It’s clear that Trump asked Ukrainian President Zelensky to conduct two investigations, one of which involved a potential 2020 opponent, Joe Biden. Beyond this, evidence of his involvement is sparse and key factual assertions are contested or open to different interpretations. This applies to the “quid pro quo” issues. There is no direct evidence that Trump imposed a quid pro quo of any kind. He denied this publicly and in at least one conversation with a subordinate. Zelensky says no quid pro quo existed from his perspective. The summary of the July 25 phone call between Trump and Zelensky falls short of demonstrating a quid pro quo, which probably explains why lead impeacher Adam Schiff chose to embellish what Trump actually said in that conversation. Finally, no quid pro quo materialized.  

Impeachers rightly point out that Trump refused to permit testimony by some close associates who might be able to supply direct evidence concerning his role. On the other hand, the House elected to proceed without pursuing their testimony. In any event, the fact remains that such evidence is lacking.

Many key assertions by impeachers are not supported by the evidence or run counter to the available evidence.

Impeachers base much of their case against Trump on drawing the most negative inferences possible from ambiguous evidence. Sometimes they go further and reach conclusions that contradict the weight of the evidence or make assertions that are wholly unsupported by the evidence.

Trump’s motivation in requesting the investigations was all about benefiting his 2020 reelection prospects. Determining Trump’s motives is speculative. However, one of the investigations concerned 2016 election interference and is essentially irrelevant to the 2020 election. This investigation arguably was more important to Trump than the one involving Biden since it was the specific “favor” he initially asked for in his July 25 conversation with Zelensky. While benefiting his reelection may have been part of Trump’s motivation, it was clearly not the only part and perhaps not even the primary part.

Trump asked for an investigation of Ukrainian 2016 election interference in order to promote the “discredited” theory that Ukraine rather than Russia was responsible for it. Trump did reference “CrowdStrike” in his July 25 phone call with Zelensky. At the same time, Trump clearly believed that Ukrainian forces worked against his 2016 election and disliked and distrusted Ukraine for this reason. Thus, he may well have been more concerned over what Ukrainians did or didn’t do in 2016 than anything involving Russia.   

Trump asked Zelensky to “dig up” or even fabricate “dirt” on Biden. Schiff launched this false narrative in his embellished version of Trump’s July 25 phone call with Zelensky: “I want you to make up dirt on my political opponent, understand? Lots of it.” Democrats and the media seized upon this narrative and have echoed it ever since. Trump may have hoped the investigation would produce “dirt” on Biden, but he never asked for it. There’s no evidence that Trump or anyone acting for him voiced any demands or expectations concerning the conduct or outcome of either investigation.  

Trump didn’t care whether the investigations were actually conducted; he viewed a public announcement by Zelensky that he would investigate Biden as sufficiently damaging. This is inconsistent with the previous assertion that Trump demanded dirt on Biden. In any event, it misrepresents the testimony on which it is based. The testimony (by Gordon Sondland) clearly indicates that a public announcement was considered important to ensure that Zelensky would in fact follow through and conduct the investigations.

Trump solicited foreign election interference. The impeachment articles allege that Trump “solicited the interference of a foreign government” in the 2020 presidential election. This is hyperbole that doesn’t remotely fit the facts. Foreign interference in U.S. elections conjures up notions of Russians hacking into email accounts of American politicians and political organizations and orchestrating stealth propaganda campaigns through internet trolling. What Trump asked Zelensky to do bears no resemblance to this. The requested investigations had no preordained agendas, would have been conducted in Ukraine, and focused primarily on Ukrainian citizens and organizations. Under the impeachers’ theory, any presidential request for a foreign government to take any action that could benefit the president’s reelection prospects could constitute soliciting foreign interference in the election.    

Trump’s withholding of military aid posed a major threat to national security. There is no evidence that the Trump Administration intended to let the military aid go unspent. A president can’t unilaterally cancel funds appropriated by Congress; this requires the submission of a “rescission” proposal to Congress under the Impoundment Control Act (ICA). The Administration took no steps to rescind the Ukrainian military aid. Likewise, there’s no evidence that the delay in releasing the aid funds had a significant adverse national security impact. However, as the Government Accountability Office has concluded, the temporary hold did constitute an unauthorized “policy impoundment” that violated the ICA.

Trump released the military aid only because he got “caught” when the whistleblower exposed his scheme. This evidence-free speculation ignores more plausible explanations for why the military aid was released when it was. News of the whistleblower complaint began seeping out around the second week in September at about the same time the hold on military aid was lifted. Impeachers base their assertion on this timing. However, the military aid funds were scheduled to expire at the end of September and thus had to be released when they were in order to be spent. Furthermore, Trump came under heavy bipartisan congressional pressure to release the funds as soon as the hold was publicized in late August and before the whistleblower complaint.     

The weakest part of the impeachment case concerns the hold on military assistance.

The assertion that Trump used military aid to Ukraine as part of a quid pro quo for the investigations he wanted is the most serious single element in the impeachment case against Trump. It’s also the weakest from an evidence standpoint. The House impeachment inquiry detailed numerous interactions among Trump’s personal attorney, Rudy Giuliani, Trump’s political appointees, career diplomats, and various Ukrainians that occurred over many months. They focused almost exclusively on negotiating a White House meeting for Zelensky. There was ample testimony that Giuliani called the shots in the negotiations. Trump instructed his subordinates to work with Giuliani and even encouraged Zelensky to talk to him. There was testimony that Giuliani participated in drafting a statement by Zelensky announcing the investigations and insisted that the statement include explicit references to both 2106 election interference and Burisma, the Ukrainian energy company that employed Joe Biden’s son as a board member. (There is no indication Giuliani insisted that either of the Bidens be mentioned in the announcement.)

This provides substantial indirect evidence that Trump, acting through his agents, conditioned a White House meeting for Zelensky on the latter’s agreement to do the requested investigations. By contrast, there is no comparable evidence that military aid was part of a quid pro quo. Issues over military aid did not arise until the tail end of the protracted negotiations concerning the White House meeting and lasted only a few weeks. According to a timeline of events, Trump imposed a hold on military aid in mid-July, the hold was first publicly reported on August 28, and the aid was released on September 11.

There is no indication that Zelensky was aware of the hold until it became public in late August. Notably, Trump made no mention of it in his July 25 phone call with Zelensky, although he had imposed the hold shortly before. Perhaps most significantly, Giuliani apparently was unaware of the hold before August 28. Gordon Sondland was very clear in his testimony that the White House meeting was part of a quid pro quo based on instructions coming from Giuliani. However, Sondland said nothing about Giuliani raising the subject of military aid with him. Sondland described his belief that military aid was part of the quid pro quo as only a “guess.”

Trump’s hold on military aid likely had something to do with his perception that Ukraine worked against him in 2016 and his general skepticism toward Ukraine. His Acting Chief of Staff, Mick Mulvaney, said as much in a press conference. However, Mulvaney also said that Trump’s primary reservations were over Ukrainian corruption and the failure of other countries to contribute to Ukraine’s defense. There are indications that Trump imposed the hold in reaction to a newspaper article he read and asked for information on what other nations were contributing to Ukraine. The circumstances relating to the hold on military aid remain murky. Importantly, however, what evidence there is suggests that it operated on a separate track and played no role in negotiations with the Ukrainians pertaining to the investigations Trump wanted. 

The stated grounds for impeachment are nebulous and set a low bar for removal of the president.

The Constitution provides for removal of a president “on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Democrats have struggled to define exactly how Trump’s conduct fits this constitutional standard. At first, they emphasized the concept of a “quid pro quo” but that didn’t resonate with the public. Then they argued that Trump’s conduct constituted “bribery.” But this was apparently based more on focus group-tested messaging than legal analysis and has now been abandoned. The impeachment articles don’t accuse Trump of any criminal violation. While impeachment does not require a charge of criminal misconduct, its absence impacts the gravity of the impeachment case and makes it more difficult to specify objective criteria for impeachment.

Democrats finally settled on charging Trump with “abuse of power” on the basis that he subordinated the national interest to his personal political interests. There is disagreement over whether abuse of power can be grounds for impeachment. Even if it can, this charge lacks objective criteria or limiting principles. One law professor called by House Democrats testified that if Trump’s conduct here is not impeachable then “nothing is impeachable.” The opposite is closer to the truth. Obviously, presidents regularly take controversial actions and factor in political considerations. If Trump is impeachable based on the charges here, any action by a president that his opponents regard as politically expedient and contrary to the national interest as they see it could potentially constitute an impeachable offense.

Charging Trump with “obstruction of Congress” has potential merit but is premature.

Article II of the impeachment articles charges Trump with “obstruction of Congress.” This second article may have more merit than the first. Trump’s attempt to totally stonewall the House impeachment inquiry surely can’t be legal. On the other hand, a president just as surely has legal privileges that can be raised in response to congressional demands for testimony and documents in an impeachment (or other) investigation. Thus, Trump cannot reasonably be faulted for failing to comply automatically with any and all such demands. Ultimately, only the courts can authoritatively strike the proper balance in these situations.

Since Democrats generally declined to seek enforcement of their demands in court, there is no objective means to draw the line between unjustified obstruction and legitimate privilege claims. The obstruction charge would be much stronger if Trump had defied congressional demands for testimony or documents in violation of a final judicial determination upholding their legitimacy.  

Conclusions

Three bottom line conclusions emerge when the facts developed to date are stripped of exaggeration and hyperbole:

• If simply requesting a foreign leader to conduct an investigation potentially impacting an election opponent is grounds for impeachment, there is uncontroverted, direct supporting evidence.
• If the case for impeachment depends on Trump using a White House meeting for Zelensky as a quid pro quo for the investigations, there is indirect supporting evidence. It’s reasonable to attribute to Trump the actions of his personal attorney and political appointees.  
• If the impeachment case depends on Trump using military aid as a quid pro quo for the investigations, it is unsupported and even undercut by the available evidence. While Trump’s hold on aid may have been based in part on his distain for Ukraine, it was never part of negotiations with the Ukrainians over the investigations.

Turning to the legal grounds, there’s little consensus on exactly what constitutes impeachable “high crimes and misdemeanors.” However, a 1974 bipartisan analysis prepared by the House Judiciary Committee staff in connection with the Nixon impeachment observed that impeachment of a president is “a grave step for the nation.” Clearly, such an extraordinary action requires extraordinary and egregious presidential misconduct.

It’s hard to see how merely requesting an investigation involving Biden could rise to the level of an impeachable offense. There’s nothing inherently wrong with a president requesting a foreign government to conduct an investigation involving an American citizen and no reason why a political rival would be immune from investigation. In this case, a broad-based investigation of Ukrainian corruption would have included Burisma and quite possibly the actions of one or both Bidens as well, which had raised eyebrows. The problem is that Trump singled out Burisma and the Bidens.  This was certainly unwise in the absence of a specific indication that either Biden did anything wrong, but it was not totally unfounded or outrageous.

It’s also hard to see how conditioning a White House meeting on such a request would push it to the level of an impeachable offense. Presidents frequently use state visits and other diplomatic leverage to influence the behavior of foreign leaders. Indeed, Joe Biden threatened to withhold foreign assistance to Ukraine in order to pressure its government to fire a former prosecutor.     

The strongest case for impeachment would be if Trump demanded that Zelensky produce negative information on Biden and used military aid as a quid pro quo to enforce this demand. However, the evidence supports neither of these conclusions.

This is not to suggest that Trump did nothing wrong. Whatever his motives, it’s clear Trump was pursuing a self-serving agenda of his own that had little if any relationship to U.S. policy interests regarding Ukraine, as generally understood, and threatened to undercut those interests. This came at a time when Ukraine was (and still is) vulnerable to Russian aggression and in need of a strong showing of U.S. support. Trump’s investigative requests appear frivolous and perhaps vengeful in the case of 2016 election interference as well as seriously ill-advised in the case involving the Bidens. As such, they deserve criticism and maybe even condemnation. However, the framers of the Constitution made clear that “maladministration” does not constitute grounds for impeachment. Poor judgment, foolishness, selfishness or generally bad behavior are not enough for impeachment. Of course, they are highly relevant to electability.

Speaker Nancy Pelosi has delayed submission of the House-passed impeachment articles against President Trump to the Senate. Reportedly, this is based in part on advice from Harvard law professor and prominent Trump resister Laurence Tribe. The ostensible reason for the delay is concern, arising from statements by Mitch McConnell and others, that the Senate will not give the articles fair and impartial consideration. It’s somewhat surprising that House Democrats would expect anything but a partisan Senate response to their partisan impeachment. In any event, if Pelosi’s delay is indeed Tribe’s brainchild, the real motive is quite different.

For a long time, well before the Ukraine issues arose, Tribe has been urging Democrats to find a way to effectively impeach Trump while denying him the ability to defend himself in a Senate trial. Tribe’s original proposal was for the House to pass a simple resolution declaring Trump “guilty” of impeachable offenses, an action that would not involve the Senate. (See here for a description and critique of the proposal.) Tribe reasoned that this action would be “deliberately stigmatizing” to Trump by branding him with a “Scarlet I” of impeachment that he would be forced to carry through the 2020 election. The beauty of it, Tribe suggested, was that Trump would have no opportunity to shed his Scarlet I through the “misguided” and “old school” process of a Senate trial called for by the Constitution.

Tribe’s original proposal gained little traction. This is fortunate since it so obviously flouted the Constitution as well as basic considerations of due process and fairness. Unfortunately, Democrats now seem to be thinking of resurrecting it in a slightly different form by attempting to postpone a Senate trial on their impeachment articles indefinitely. This may be a “hail Mary” maneuver that will prove too outrageous to pull off. However, the fact that it is apparently receiving serious consideration doesn’t speak well for the bona fides of this impeachment effort.       

Assessments of the impeachment case against President Trump based on the so-called “Ukraine affair” rest mainly in the eyes of fiercely partisan beholders. Most evidence amassed thus far is subject to diametrically opposed interpretations. A prime example is Trump’s either “perfect” or virtually criminal July 25 phone call with Ukrainian President Zelensky. For pro-impeachers, led by House Intelligence Committee Chair Adam Schiff, the rough summary of the conversation demonstrates a corrupt “quid pro quo,” even amounting to bribery, whereby Trump conditioned military assistance for Ukraine on Ukrainian investigations of Trump’s political opponents, primarily Joe Biden. In Schiff’s embellished telling, Trump clearly demanded that Zelensky find (or even fabricate) negative information about Biden:

“I hear what you want. I have a favor I want from you, though and I’m gonna say this only seven times, so you better listen good . . . I want you to make up dirt on my political opponent, understand? Lots of it… on this and on that.”  

Trump and his anti-impeachment defenders maintain that the summary contains no hint of a quid pro quo.

This dichotomy carries over to the recent public hearings. Pro-impeachers in the House and the media portray the voluminous testimony as a steady stream of “bombshells” producing mountains of evidence against Trump. Anti-impeachers consider the hearings a boring amalgam of nothingburgers. As the New York Times’ Peter Baker observed:

“[L]istening to Republicans and Democrats, or their friendlier media, would give the impression of two radically different sets of hearings, one that presented damning, incontrovertible evidence that the president abused his power or one that revealed that the whole proceeding was a partisan sham.”

An excerpt from the November 20 hearing illustrates how even seemingly minor points are magnified through very different lenses. The excerpt is an exchange between Daniel Goldman, Schiff’s counsel, and witness Gordon Sondland. It involves what Rudy Giuliani, Trump’s personal lawyer, allegedly insisted Zelensky must do to gain his meeting with Trump:

Goldman: “Now, for Mr. Giuliani by this point, you understood that in order to get that White House meeting—that you wanted President Zelensky to have and that President Zelensky desperately wanted to have—that Ukraine would have to initiate these two investigations. Is that right?”

Sondland: “Well, they would have to announce that they were going to do it.”

Goldman: “Right. Because Giuliani and President Trump didn’t actually care if they did them, right?”

Sondland: “I never heard, Mr. Goldman, anyone say that the investigations had to start or had to be completed. The only thing I heard from Mr. Giuliani or otherwise was that they had to be announced in some form and that form kept changing.”

Media outlets including the New York Times, the Washington Post and Vox seized upon this exchange as another “bombshell” and a major takeaway from Sondland’s testimony. They said it proved that Trump had no genuine interest in Ukrainian corruption and viewed the mere public announcement of an investigation involving Biden as sufficiently damaging to him. Pro-impeachment pundits joined this echo chamber. For example, the Post’s Eugene Robinson wrote:

“The most devastating part of Sondland’s testimony, for me, was when he said that Trump wasn’t actually interested in having the Ukrainians unearth any new information. He just wanted Biden smeared.”

But Sondland said nothing of the kind. It was Goldman who asserted that Trump didn’t care whether Ukraine actually conducted the investigations, as he tried to put words in Sondland’s mouth. Moreover, this assertion is at odds with a straightforward interpretation of what Giuliani was demanding, according to Sondland.

On the face of it, Giuliani’s message as described by Sondland simply meant that Zelensky’s public commitment to conduct the investigations was sufficient to earn his meeting with Trump–not that it needn’t be followed up by the actual investigations. Indeed, the public announcement was a safeguard to ensure that Zelensky did not renege on his commitment and would in fact conduct the investigations. Sondland confirmed this later in his testimony: “The way it was expressed to me was that the Ukrainians had a long history of committing to things privately and then never following through.”

Finally, Goldman’s assertion not only misrepresents Sondland’s testimony but also contradicts his boss. As noted previously, Schiff’s argues that Trump very much did want the investigations to go forward to produce “dirt” and “lots of it” on Biden.

This example is just one small episode from the impeachment drama. (Future posts will address impeachment more broadly.) However, it shows how readily partisans will run with and even distort anything that superficially appears to support their preconceptions without pausing to engage in the slightest critical analysis.

There’s something about Trump that frequently causes his critics to lose all sense of rationality and perspective. This phenomenon, known as “Trump derangement syndrome,” regularly afflicts his political opponents and much of the media. It also exacts a heavy toll on liberal law professors, particularly those who call Harvard home. A striking example is the recent proposal by Laurence Tribe for the House of Representatives to declare Trump guilty of impeachable offenses without going through the nuisance of a constitutionally-prescribed Senate trial.   

Trump’s opponents almost universally believe he is guilty of obstruction of justice in connection with the Russia investigation and perhaps other impeachable “high crimes and misdemeanors.” If so, their recourse under the Constitution is for the House of Representatives to adopt articles of impeachment and submit them to the Senate for trial. The House’s role is like that of a grand jury—to investigate and indict (impeach) the president if it finds the charges well founded. House members then act as prosecutors and the Senate constitutes the jury. Impeachment requires only a majority vote in the House; conviction requires a two-thirds Senate vote.

But House Democrats face a dilemma. While they may have the votes to impeach Trump, there’s no chance the Senate would convict him. Another complication is that a majority of American voters oppose impeachment; thus, impeaching Trump could be both futile and politically costly. Coming to the rescue, Tribe offers a solution to this dilemma: the House can simply bypass a Senate trial and issue its own “verdict” declaring Trump guilty of impeachable offenses. This guilty verdict would not remove Trump from office or impose an actual legal penalty on him. (Doing so would constitute a patently unconstitutional bill of attainder.) However, Tribe assures that it would be “deliberately stigmatizing” by branding him with “a ‘Scarlet I’ that Trump would have to take with him into his reelection campaign.”      

Tribe asserts, without much explanation, that the impeachment process provided for in the Constitution whereby the House acts as investigator and prosecutor while the Senate serves as the jury is “misguided” and “old-school.” He complains that a Senate verdict in Trump’s case would be a politically driven “whitewash.” Under his proposal, the House need not “play the Senate’s corrupt game.” Rather, it can act as combined investigator, prosecutor, judge and jury.

Apart from rewriting the Constitution’s impeachment provisions, Tribe conveniently ignores the obvious fact that politics undoubtedly would drive the House’s actions just as much as the Senate’s. He blithely assumes that Trump would have “ample opportunity” to defend himself in the House and even notes the “possibility” that the House might “unexpectedly” exonerate him. However, it is inconceivable that Trump would get objective and unbiased treatment from the kangaroo court process Tribe proposes. The vast majority of Trump’s would-be House Democratic jurors already presume his guilt, as does Tribe.

In sum, Tribe’s proposal flouts the Constitution as well as fundamental considerations of due process and fairness. It’s a sad commentary that animus toward Trump can cause a distinguished constitutional law professor to abandon so readily so many basic American legal values.

While Tribe’s proposal fortunately hasn’t gained much traction so far, it does have the enthusiastic endorsement of another liberal lawyer and virulent Trump critic, Harry Litman. Litman praises Tribe’s proposal as providing “an outlet for House members to respond to the extraordinary gravity of the president’s assault on the rule of law” as well as “some sort of reckoning for Trump’s outrages.” Litman illustrates another of the proposal’s negative features—its elitist, anti-democratic nature. He emphasizes that it affords a way to avoid the “intolerable” (to elites) alternative favored by a majority of Americans of leaving Trump’s fate to the voters in 2020.

Trump has been shattering norms of presidential behavior from the outset of his term. Instead of responding by upholding our bedrock legal and ethical values, however, his opponents too often choose to compete with him in a contest to undermine them.        

Breaking two years of silence, Special Counsel Robert Mueller made a public statement at the Justice Department on May 29. With the investigation complete, he announced his resignation and his intent to say nothing more concerning his report, including commenting on “any additional conclusions or hypotheticals about the President.” He stated that the report “speaks for itself” and “is my testimony.” He emphasized that, if push came to shove, “[a]ny testimony from this office would not go beyond our report.”

Mueller briefly addressed the approach he took to the investigation and his conclusions. Nothing he said went beyond the four corners of his written report. However, because of the points he chose to emphasize or perhaps because he was speaking at all, politicians and the media widely viewed his comments as a revelation. What they revealed was subject to debate. As one pundit put it:

“At long last, the sphinx of Washington spoke on Wednesday, and here is what President Trump heard: ‘Case closed.’ Here is what the president’s adversaries heard: ‘Time to impeach.’”       

If keeping score, Trump’s adversaries generally thought they heard more to their liking than did Trump and his supporters. The latter turned up the rhetoric vilifying Mueller. The former claimed that Mueller clearly meant to convey the following:

• He believes that Trump obstructed justice and would have said so but for a legal opinion by the Justice Department’s Office of Legal Counsel (OLC) holding that a sitting President can’t be indicted.
• He invited Congress to impeach Trump.
• His remarks confirmed the almost universal (albeit unfounded) view among Trump opponents that Attorney General Barr engaged in serious misrepresentations or even outright lies in characterizing the report.

Mueller said none of these things. He did restate the report’s conclusion that charging Trump with a crime was “not an option” under his interpretation of the OLC opinion. He also reiterated the report’s conclusion that he lacked “confidence that the President clearly did not commit a crime,” thereby again refuting Trump’s (but not Barr’s) claim that the investigation “exonerated” him on obstruction. However, neither Mueller nor the report said he would have accused Trump of obstruction but for the OLC opinion. Indeed, Barr asserted that Mueller told him repeatedly that this was not Mueller’s position. In a joint statement issued after Mueller spoke on May 29, Mueller’s office and the Justice Department affirmed Barr’s account and said that Mueller had not contradicted it.

Mueller’s statement did not mention impeachment. He did cite a passage from the OLC opinion that obviously referred to it. However, this hardly constitutes an impeachment invitation by Mueller as Trump opponents claim. Indeed, it’s unlikely he meant to encourage impeachment. Mueller would be a key witness in any impeachment proceeding, but the one thing he made abundantly clear in his statement was that he wanted no part of it.

With regard to Barr, the joint statement referenced above puts to rest the notion that Mueller contradicted him on the point about the OLC opinion. Mueller also said in his statement that he did not question Barr’s good faith in declining to release the introduction and executive summaries of the report in advance of the full redacted version. Some in the media assert that by affirming Barr’s good faith on this point, Mueller implicitly questioned his good faith on other, unspecified points. The basis for this  assertion is unclear.

In sum, Mueller left things where they stood before he spoke—in the same state of politically polarized confusion over his strange and ambiguous treatment of the obstruction question that has existed since the report was issued. The only real news from the May 29 statement was his intent to walk away from this mess. It’s hard to imagine that he will get away with that.

There’s a broad consensus on the left that, although Mueller was unwilling to say so, the facts and analysis laid out in his report demonstrate that Trump obstructed justice. This will almost surely lead to at least exploratory Congressional hearings on impeachment. How can Mueller justify refusing to testify fully about his investigation and report? His work is of great public interest. He conducted it as a public servant, along with a number of other government employees, at a cost to the taxpayers likely to exceed $30 million. Clearly, he owes Congress and the public his unconditional cooperation. Even if impeachment proceedings to do not ensue, Mueller needs to forthrightly address the many substantive ambiguities in his report. If he doesn’t, others surely will. There were immediate rumblings of discontent from Mueller staffers about Barr’s handling of the report; presumably, someone on Mueller’s staff leaked his March 27 letter to Barr on this subject. The leaking will only intensify and produce unverifiable, diverse takes on the meaning of the report unless Mueller speaks up officially.

In the unlikely event Mueller somehow avoids elaborating on the substance of the report, he still has a lot of explaining to do about his approach to the job. For example:

Mueller’s bosses at the Justice Department expressed surprise at his position that the OLC opinion prevented him from making a traditional prosecutorial decision on Trump and obstruction; they obviously disagreed with his interpretation. As a Justice Department employee, Mueller rightly considered himself bound by the OLC opinion but why didn’t he feel equally bound to defer to his superiors’ controlling interpretation of the opinion?

Mueller apparently believed that the only decision he could make regarding Trump and obstruction was whether to “exonerate” him. What was the source of his authority to decide whether Trump merited “exoneration” and what legal standards applied in making this determination?

Once Mueller ruled out “exoneration,” the only apparent purpose of the investigation as it pertained to possible obstruction by Trump was to develop and preserve evidence for potential future use. Why then does the report include extensive analyses of the facts and law applying to an obstruction case against Trump?  Why not simply compile and catalogue the relevant evidence without issuing a lengthy report (volume II) that gratuitously explores the legal and evidentiary pros and cons of prosecuting him when that was not an option to consider? Doesn’t this create the very kind of unfairness that Mueller claimed he wanted to avoid by not making a prosecutorial decision?

The OLC opinion had the same impact on Mueller’s consideration of whether Trump committed a crime relating to Russian election interference (volume I of the report) as it did on obstruction. Yet Mueller made what looks like a traditional prosecutorial decision on the election interference question, finding “insufficient evidence” of a crime involving Trump with no mention of “exoneration.” Why such strikingly different approaches to these two questions?