Trump is asking for trouble with his stubborn behaviour

The proceeding will focus on charging the US president with extortion and coverup.

By Harold Hongju Koh (Core Issue)

Published: Sun 6 Oct 2019, 11:00 PM

Last updated: Mon 7 Oct 2019, 1:03 AM

Just 14 months before he will likely stand for reelection, President Donald Trump finally faces an "impeachment inquiry" by the US House of Representatives.
Under US constitutional law, impeachment is the first step in a constitutional process that could lead to Trump's removal from office. Articles I and II of the US Constitution authorise the House alone to impeach the "President, Vice-President, and all civil officers of the United States," to be removed upon Senate conviction for "Treason, Bribery, or other high Crimes and Misdemeanors." An "impeachment inquiry," as launched on September 24 by Speaker Nancy Pelosi, means that under a single umbrella, a formal investigation into possible impeachment will be conducted by six key House committees: Financial Services, Foreign Affairs, Intelligence, Judiciary, Oversight and Reform, and Ways and Means.
Because impeachment and removal of an elected official overturns an electoral result, an impeachment conviction requires both a serious abuse of office and a supermajority vote with two key stages: First, the House investigation, hearings, debate and simple-majority vote on a resolution that includes articles of impeachment. Stage Two is a senate trial, which is not a criminal trial, but a determination whether the offenses charged and proved warrant removal.
The constitutional concept of impeachment is neither exclusively federal nor exclusively American. No American president has been removed through impeachment. Only two presidents have been impeached: Bill Clinton for perjury and obstruction of justice in 1998 and Andrew Johnson for violating the Tenure of Office Act in 1868.
A common canard is that an impeachable offense is whatever a majority of the House deems it to be at a given moment in history. But Trump cannot be impeached based on mere political differences with his policy views or frustration with his rhetoric. An impeachable offense must be a constitutional offense that negatively impacts the constitutional system by subverting basic political and governmental processes.
News reports suggest that Speaker Pelosi has asked the relevant committees to take a "rifleshot, not shotgun" approach: to focus narrowly on drawing up Articles of Impeachment that will charge Trump with the extortion and coverup that the anonymous whistleblower's complaint shows and incomplete White House transcripts describe. The charge would state that by withholding foreign aid, Trump extorted Ukrainian President Volodymyr Zelensky by urging him to investigate the Ukrainian activities of 2020 Democratic presidential candidate Joe Biden's son. Subsequently, numerous presidential subordinates took measures to cover up Trump's actions.
Thus, following the Nixon impeachment playbook, the House Judiciary Committee, chaired by Representative Jerrold Nadler of New York, could charge that Trump: 1) obstructed justice, 2) abused the powers of his office, and 3) committed contempt of Congress by persistent failure to comply with House subpoenas. The House Committee failed to charge Nixon with two other articles of impeachment that could potentially be lodged against Trump: 4) tax fraud and 5) foreign policy abuse that violated his constitutional oath to "take care that the laws be faithfully executed," in Nixon's case, the secret bombing of Cambodia. If the Iran-Contra Affair involved trading "arms for hostages" in an unconstitutional privatisation of foreign policy, Ukrainegate involved similar privatisation that sought to trade arms to Ukraine for electoral interference. If it could be proved that Trump made this particular foreign policy decision to secure something of value - that is electoral benefit to him by Ukraine and 6) a sixth impeachable offense, "bribery." With respect to each count, the House managers at the Senate impeachment trial would have to make fact-specific showings that the president acted in self-interest.
A more expansive resolution of impeachment could go back to charges and facts detailed in the Mueller Report. After all, Trump's call to Zelensky plainly attempted the kind of "collusion" with foreign interference in an election that Trump claimed was missing with Russia. The Watergate precedent applies even if Trump, like Nixon, did not direct persons to conduct or facilitate that burglary. But if Congress ranges too widely or fails to adhere to constitutional standards, Trump's impeachment could be perceived as a partisan tool for undermining elected officials and overturning election results.
What happens once the action shifts to the Senate is far less clear, because of Trump's staunch support from Senate Majority Leader Mitch McConnell. If the Democrats take both the House and Senate but Trump is reelected, the House could quickly revote the resolution and the reconstituted Senate could try and remove Trump with two-thirds of the senators present voting "guilty."
As impeachment proceedings unfold, Trump could undertake more impeachable behaviour, or more whistleblowers' reports or news leaks could emerge. Over almost three years, Trump has dodged multiple bullets, but this one is the most threatening. Time will soon tell whether we have finally reached the point where Ukrainegate becomes Trump's Watergate.
- Yale Global
Harold Hongju Koh is Sterling Professor of International Law, Yale Law School;
Legal Adviser, US Department of State (2009-13); Assistant Secretary of State for Democracy, Human Rights & Labour (1998-2001)

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