The following piece was first published on the website for the Miller Center, a nonpartisan affiliate of the University of Virginia that specializes in presidential scholarship, public policy, and political history. It was written by the Miller Center’s Director and CEO, William Antholis, who is the brother of Crime Story’s Publisher and Editor, Kary Antholis.
Impeachment is the central issue gripping the presidency today.
It has been 10 weeks since Speaker Pelosi announced that she was beginning an impeachment inquiry against President Trump. Miller Center scholars have been approaching this momentous inquiry with our nonpartisan mission clearly in mind.
As a guide to the perplexed, this is a summary of some of their key legal and political observations, plus a few of my own. This is a “first take” in weaving together their analyses, and was largely completed before the release of the Intelligence Committee’s report and the start of the Judiciary Committee’s deliberations.
In short, the rule of law in America is facing a head-on collision with our tribal politics. That has been the case in previous impeachments. Is this one any different?
The legal questions surrounding the president’s actions are, at first glance, very troubling. Former Miller Council Governing Council member and former U.S. Senator Slade Gorton (R-WA) has eloquently expressed this viewpoint in The New York Times. If our president used congressionally authorized foreign military assistance for no other purpose than to generate damaging evidence about one of his opponents, it would exceed the severity of alleged illegal actions by any of the past presidents who have undergone impeachment inquiries: Andrew Johnson, Richard Nixon, or Bill Clinton.
Judging by public opinion polls, however, the current inquiry faces a singular obstacle: Nearly four in 10 Americans trust President Trump more than they trust our public institutions. Indeed, they support him precisely because he disrupts. The president’s actions in question directly challenged long-accepted norms of our governing institutions. Many Americans share the president’s resentment toward those institutions and career officials.
According to Miller Center scholar Sidney Milkis, the president represents a deeply anti-establishment social movement whose members “disdain the virtues of deliberation, compromise, and pragmatic government.” The president’s supporters point to the 2008–09 financial crisis and endless wars in the Middle East—to frustrations with the complex and cumbersome rules that manage our society. The system is broken in their view: The old norms of behavior are too archaic, and President Trump’s actions serve to disrupt that system.
The president’s approach may be a winning political strategy and may reflect the views of a great number of Americans. But it also is a deeply destabilizing trend, which if it continues, will further erode the effectiveness and credibility of our institutions. It will also affect our credibility abroad. Disruption is a goal shared by our adversaries, especially Russia.
But first, let’s start with the basics.
Question #1: Is impeachment a legal or political process?
Answer: Impeachment is both legal and political. But not how you might imagine.
Barbara Perry recently laid out how the Framers strictly limited the grounds for impeachment to “treason, bribery, or other high crimes and misdemeanors,” and explicitly rejected “maladministration” as reason for removal. They wanted the House and Senate to examine presidential treachery and/or criminality, not bad policy or incompetence. The grounds for impeachment are legal, as they are enumerated in the highest law of the land, and they involve proceedings modeled on our courts. But the standards and exact processes are left entirely to our lawmakers and differ in key respects from normal courts of law.
Impeachment is also political. The Framers gave this legal power exclusively to political officers. That is, they gave it to elected officials, not to unelected judges.
Congress’s impeachment and removal power is the essence of the legislature’s primacy over the executive. It differs from Congress’s lawmaking power, which is subject to executive veto and judicial review. Congress’s impeachment power is without a check or balance. It can remove the president, but the president cannot dissolve Congress. “This Magistrate is not the King but the prime minister,” explained one of the Constitution’s framers, Gouverneur Morris. “The people are the King,” and Congress speaks for them when judging a president.
The Framers, however, did not want impeachment to be a referendum on the president’s popularity. They wanted voters to judge members of Congress for their performance as constitutional officers. As Melody Barnes said in October at a Miller Center event addressing impeachment, “When we go to vote… we are making a judgement, a determination, holding elected officials accountable for a decision that they made and the way that they made it.”
Our Senior Fellow Saikrishna Prakash has argued that Democrats face an uphill battle in the political arena. According to Republicans, Democrats have been seeking to overturn the 2016 election since the inauguration itself. They are perceived as using arcane rules to stop the will of the people; and the people intentionally wanted the president to disrupt a corrupt system. So Democrats face an additional burden of not only determining that the president committed acts meeting the constitutional standard, but also of demonstrating their own integrity.
So far, polling suggests that half of Americans want the proceedings to continue, while a full 40% of Americans view them as a “witch hunt.”
Question #2: What act of treason, bribery, or high crime or misdemeanor is alleged?
Answer: The House Judiciary Committee likely is examining a range of potential charges, including bribery, extortion, obstruction of justice, and abuse of power. The report of the Intelligence Committee did not specify any of these charges. It touches on a number of these topics, and leaves to the Judiciary Committee to formalize them in the coming week.
Philip Zelikow has laid out how federal bribery statutes might apply. The layman term is “self-dealing.” It’s the equivalent of a corporate CEO asking for a personal pay-off—either a financial one or something benefiting him personally, such as information to publicly smear a rival executive within his own company.
To substantiate a charge of bribery as grounds for impeachment, prosecutors in the Senate trial will have to show that President Trump was asking for a “favor” from Ukrainian President Volodymyr Zelensky that advanced President Trump’s personal interests as distinct from the interests of the U.S. government or the American public. The president offered something everyone agrees is a public good (legally authorized military assistance and/or a meeting with the leader of the free world) if Ukraine would give him a private thing of value (announcing investigations that either smear his leading political rival or disprove allegations that President Trump benefitted from Russian election meddling).
Democrats must also establish that the mere solicitation was severe enough to remove the president.
Even prior to November’s hearings, Democrats claimed that the president’s phone call on July 25 demonstrated motives driven by personal benefit. They have been trying to establish the president’s state of mind. What exactly was he thinking?
Question #3: Does the president’s intent matter?
Answer: Intent does matter, particularly if President Trump explicitly conditioned either military assistance or an Oval Office visit only on the public announcement of investigations of his opponents.
The president’s defenders argue that he thought he was combatting corruption. And so in making the request of Zelensky, he was not seeking personal favors but instead was pursuing legitimate public concerns. This point of view might be easier to argue if his defenders could show that the president believed one of two things, or perhaps both: either that (a) Ukraine was generally corrupt or (b) his Democratic opponents broadly are corrupt.
Unfortunately for the president, both of his two hand-picked ambassadors—Gordon Sondland and Kurt Volker—admitted to seeking, on the president’s behalf, clear public statements that Ukraine would initiate investigations specifically into his political rival Joe Biden and into a rumor that Ukraine had meddled in our election in 2016. If true, President Trump likely was indeed conditioning assistance on acts that would benefit him personally rather than serving a widely recognized national interest.
Question #4: Does it matter that Ukraine never launched the investigations?
Answer: Under criminal law, soliciting a bribe is just as illegal as receiving a bribe. But even though solicitation is illegal, Congress must still determine that it is a high crime or misdemeanor.
The president’s defenders argue that, regardless of his intent, Ukraine received the military aid but never reciprocated by launching investigations. While the president may have seen a connection between the two, he did not insist on such a linkage before releasing funds.
This defense has some holes. First, Zelikow lays out that solicitation is all that matters in criminal law. “Under the law, the quid pro quo need not be explicit and need only be intended, although in this case there was actually direct bargaining about how Ukraine must meet the demands as a condition of the various U.S. official acts to maintain good relations and aid.”
In addition, the circumstances under which the president released the funds are still murky. There is some evidence to suggest that the president did not himself release the funds, but instead his national security advisor at the time, John Bolton, released the funds on September 9 without consulting with the president and then resigned the next day. Alternatively, the president may have released the funds only after he was informed of the whistleblower complaint.
Even if it is determined that the president solicited a bribe, Congress would need to determine if the criminal standards for solicitation should lead to removal from office. In the corporate world or in most government agencies, an employee might be suspended, demoted, or terminated for seeking a personal benefit from a client. Removing a president—and overturning an election—is an extreme punishment. For the president’s supporters, so far, these actions are not sufficiently serious.
Question #5: Can the president exclusively determine the national interest in foreign policy?
Answer: The president has wide latitude in foreign policy, but not as wide as his supporters suggest.
President Trump believes he has an exclusive authority to set foreign policy and, in so doing, to define the national interest. In July, the president said that “I have the right to do whatever I want as president” thanks to the Constitution’s Article II. By this logic, it actually does not matter whether the president believed he was pursuing broad corruption. The executive’s will would be, by the president’s logic, the nation’s foreign policy.
In this particular case, however, Congress at least has some say in the matter, thanks to its appropriations power. Congress had authorized and appropriated nearly $400 million in aid to help Ukraine in its fight against Russia. In essence, Congress had supported a proxy war against Russia by funding the Ukrainian defense forces.
Moreover, as Zelikow shows, the executive branch had certified to Congress on May 23 that Ukraine was fighting corruption sufficiently to qualify for military assistance. Congress had to be notified because military assistance, as public spending, required legislative approval.
So the House and Senate will need to determine whether it is material that President Trump never notified Congress that he had changed his mind. Nor, evidently, had he notified the attorney general. This is important. If he was pursuing a broad anti-corruption agenda against Ukraine or the Democratic Party, presumably the attorney general would have known. If, instead, he was narrowly targeting specific cases, then he likely was serving his own political interests.
And this is where Fiona Hill’s testimony was particularly damaging to the president. Hill stated that asserting that Ukraine, rather than Russia, intervened in the 2016 election was the goal of a Russian disinformation campaign. By pressuring the current Ukrainian government to turn up evidence that the previous government had interfered with the 2016 election, President Trump sought to subvert the purpose of the military assistance: to help Ukraine against Russia. It was not only illogical to ask Ukraine to investigate whether it interfered with our elections in 2016, but it also directly served the interests of our common adversary: Russia.
For members of Congress who somehow believed that this was a legitimate policy choice, Hill laid down a clear warning: “In the course of this investigation, I would ask that you please not promote politically driven falsehoods that so clearly advance Russian interests.” We can only imagine her reaction when the president repeated those same conspiracy theories two days later on Fox News.
As discussed above, “maladministration” alone is not grounds for impeachment. But the Constitution explicitly makes a point of defining treason as officials “adhering to their enemies, giving them aid and comfort.”
Is Russia an enemy of the United States? We are not at war with Russia. According to one poll from August 2018, only 25% of Americans regard Russia as an “enemy.” However, Congress clearly authorized military assistance, on a bipartisan basis, to combat Russia in Eastern Ukraine. And that same poll found that more than 60% of the public sees Russia as an “unfriendly” adversary.
Directly subverting the will of Congress to target political opponents while serving the interests of an unfriendly adversary does not paint a pretty picture. But is it sufficient to remove the president from office? That’s what Congress must determine.
Question #6: Isn’t this all about the “Deep State” bureaucracy thwarting a duly elected president?
Answer: Career officials were kept in the dark about the president’s wishes. When they learned of his aspirations, they expressed great concern.
A small circle of presidential appointees understood that the president sought the announcement of specific investigations in exchange for military assistance or an official visit in the Oval Office. Ambassadors Sondland and Volker both acknowledged that this was the goal and also have implicated Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, and Trump’s personal attorney Rudy Giuliani as helping pursue this transaction. President Trump made that explicit request of President Zelensky on July 25 when he asked for “a favor”: having Ukraine investigate the 2016 election and the Bidens.
And yet most of the national security officials were not aware that this was in play. The July 25 phone call was the first time that Lt. Col. Alexander Vindman, for instance, heard it directly from President Trump, which may be why the White House worked to limit distribution of the transcript. More than one month later, on September 9, Bill Taylor asked Ambassador Sondland if such an exchange was being contemplated, to which Sondland famously said that the president denied any quid pro quo. Sondland ultimately testified that it was, indeed, a quid pro quo.
In the interest of full disclosure, and as an editorial comment, I have served with three key participants in these events. Bill Taylor was my first boss in government, where I interned for him in Senator Bill Bradley’s office. We later worked together in 1997–98 on Ukraine when I served at the White House. Kurt Volker and I worked together at the German Marshall Fund. Fiona Hill and I worked together at the Brookings Institution for nearly a decade. They are all exceptional public servants.
They all share a core set of beliefs fundamental to our democracy. They respect the rule of law, the chain of command in foreign affairs, Congress’s spending authority, the sanctity of our elections, and the idea that politics should end at the water’s edge. They also all felt, to a person, that they had an obligation to get duly authorized support to Ukraine’s embattled army.
The president and his defenders view this differently. They have belittled or attacked some of these professionals—consistent with a worldview that our institutions manipulate the law to obstruct the will of the people. One former GOP White House official, James Pinkerton, stated this best: “Thus we can see a wide cleft here, between the delicate and precise culture of the bureaucracy and the churning and heaving culture of the anti-bureaucracy, led by you-know-who.” Absent a dramatic shift in public opinion, the hearings—according to Pinkerton—have been a setback for Democrats, who “made the mistake of siding with the bureaucrats—and when was the last time a bureaucrat won an election, to say nothing of a national election?”
Not all Republicans are convinced. One Miller Center alumnus, Stephen Knott, warned recently that President Trump is the exact demagogue that the founders feared. Knott, now a professor at the Naval War College, is a self-described moderate Republican. His latest book, The Lost Soul of the American Presidency, argues that our penchant for populist presidents—from Jefferson and Jackson to FDR and Clinton—has morphed into the demagoguery of Donald Trump.
Question #7: Should impeachment be considered in an election year?
Answer: Both Republicans and Democrats recognize that this is a problem.
Republicans have been swiftest to make this case. Even those few Republicans who have expressed concerns about the president’s actions argue that this is something that the voters should decide. And yet there is a contradiction to their concerns, as many of them are extending the proceedings by supporting executive branch efforts to block inquiries.
Democrats believe that to leave such obviously corrupt actions without any formal response is to condone them. That said, they recognize that the longer hearings drag on, the more it looks as though they are trying to engineer an outcome that they cannot achieve at the ballot box. That is why they are seeking to resolve this either before the Iowa caucuses on February 3 or early in the nominating process. Like the GOP, however, Democrats face a dilemma. A speedy trial would appear to prevent the hearings from extending into the election season. But moving too rapidly means skipping the careful due process consistent with their being guardians of the rule of law.
Question #8: On balance, does it all add up to removing the president from office?
Answer: That depends on the standards of evidence and the purpose of the penalty.
As Senator Gorton wrote last week in The New York Times, “My judgment so far as an objective observer is that there are multiple actions on this president’s part that warrant a vote of impeachment in the House.” What is needed now is proof of motive and explicit culpability, which is exactly “what an impeachment inquiry and a Senate trial are designed to find out.”
If this were a regular legal proceeding, and the standard of evidence were “beyond a reasonable doubt,” we would need direct knowledge of the president’s state of mind. Did he explicitly demand that U.S. military assistance would not be released unless Ukraine announced specific investigations?
The leading contenders to shed light on that are John Bolton, Rudy Giuliani, Mick Mulvaney, and the president himself. The House has asked for testimony from Bolton and Mulvaney, but both so far have followed White House orders not to testify. House Democrats believe they have sufficient evidence to impeach the president and that testimony could still be sought in a Senate trial. Doing so would have an added advantage (from the perspective of the Democrats) in that Supreme Court Chief Justice John Roberts would preside over the Senate trial, and the theory is that he might, at least, expeditiously overrule executive branch efforts to block testimony if pressed on the point by the “prosecutors” in the Senate trial.
But even if Bolton, for instance, were to testify that the president intended an explicit quid pro quo and that he was only stymied by Bolton’s actions, then what? Even if it were legally compelling evidence in a court, would it matter in the court of public opinion?
Zelikow and Prakash shared this exchange at the end of a Miller Center event on October 21 (at minute 50:51). Zelikow cautioned against presuming the outcome: “Evidence matters. We’re very cynical… [but] you should not assume that no Republican senator cares about the evidence.” Prakash echoed that view: “I would hope that that doesn’t need to be said. But I guess it does.”
Milkis remains skeptical that moderates can survive in this setting. The president owes his election to an anti-establishment social movement. “So long as this [movement’s] investment in the Trump administration remains strong, the president can inflict substantial harm on Republican lawmakers who break ranks, making any semblance of a bipartisan inquiry and resolution nearly impossible.”
If any moderate voters remain, Prakash has cautioned Democrats not to look hell-bent on removing the president. “If I were giving advice to Democrats… they should find someone who just doesn’t seem that they’ve already decided before he stepped into office that he [the president] should be impeached…. I don’t think they’ll do that.”