“The Articles of Impeachment … are a dangerous attack on the right of the American people to freely choose their President.” A “brazen and unlawful attempt to overturn … the 2016 election” and a “highly partisan and reckless obsession,” the “Articles … are constitutionally invalid on their face.”
They fail to allege any crime or violation of the law whatsoever, let alone “high Crimes and Misdemeanors,” as required by the Constitution. They are the result of a lawless process that violated basic due process and fundamental fairness. Nothing in these articles could permit even beginning to consider removing a duly elected President or warrant nullifying an election and subverting the will of the American people.
So Jay Alan Sekulow and Pat A. Cipollone attest (“Answer of President Donald J. Trump“; all quotations from page 1 of the six-page brief). While I realize that this is political pamphleteering, not strictly the practice of law, it is a breathtaking response to the weighty, well-documented case – virtually uncontested in this defense by Trump’s personal attorney and counsel to the Office of the President – that the House presents for the President’s removal.
The brief insists that a president cannot be impeached for abuse of power if he has violated no federal statute. While Alan Dershowitz, another of the President’s lawyers, did not sign the brief, he has made this case in a book on impeachment:
Assume Putin decides to “retake” Alaska, the way he “retook” Crimea. Assume further than a president allows him to do it, because he believed that Russia has a legitimate claim to “its” original territory. That would be terrible, but would it be impeachable? Not under the text of the Constitution.
Adam Schiff replies:
The logic of that absurdist position that’s being now adopted by the president is he could give away the state of Alaska, he could withhold execution of sanctions on Russia for interfering in the last election, to induce or coerce Russia to interfere in the next one.
That would have appalled — the mere idea of this would have appalled the founders, who were worried about exactly that kind of solicitation of foreign interference in an election for a personal benefit, the danger it poses to national security. That goes to the very heart of what the framers intended to be impeachable.
The narrowest reading of “high Crimes and Misdemeanors,” which Trump’s lawyers rely on, has been refuted again and again. It is hard to see how we can reconcile the view of Sekulow, Cipollone, Dershowitz, et al. with the concerns of Hamilton (and the men who drafted our constitution) with “the abuse or violation of some public trust,” as distinct from prosaic violations of the law.
Trump has famously boasted of his supporters’ extraordinary loyalty to him: “I could stand in the middle of 5th Avenue and shoot somebody and I wouldn’t lose voters.”
What if Putin decided to retake Alaska with Trump’s acquiescence? Would Republicans accept that? Perhaps Lisa Murkowski, if not Susan Collins, would find grounds to object. Mitch McConnell would certainly strive to deflect the issue if he believed control of the Senate were at stake.
There’s a serious point embedded in that counter-factual. Trump has welcomed the intervention of foreign powers in our elections (past and future). Is that in any sense less significant, if we are concerned with democracy and constitutional governance, than ceding one of 50 states to a foreign adversary? The facts, when push comes to shove, don’t matter to Trump’s Republican defenders. The bottom line is: what will the base accept (looking no further into the future than the 2020 election)?
There is scant evidence of a deeper principle at stake for Trump’s Republican defenders in the House or the Senate.