Impeachable offenses were listed on a monitor as the House Judiciary Committee listened to testimony by constitutional scholars earlier this week. Pool/Getty Images hide caption
House Speaker Nancy Pelosi said that she and Democrats are moving forward with impeachment against President Trump.
"The president leaves us no choice but to act because he is trying to corrupt, once again, the election for his own benefit," she said Thursday.
We are expected to find out what exactly the articles of impeachment will be against the president next week with a vote potentially before Christmas on Trump's impeachment. But what exactly will the articles of impeachment be? Democrats have given some clues this week.
Let's take a look at the breadcrumbs they left and the arguments for and against each article:
1. Abuse of power and bribery
Argument for: For Pelosi, what it boils down on abuse of power is this: "The president abused his power for his own personal political benefit at the expense of our national security, by withholding military aid and crucial Oval Office meeting in exchange for an announcement of an investigation into his political rival," she said in announcing her recommendation that the House go forward with impeachment.
Bribery is a word that Pelosi is now using more frequently instead of "quid pro quo" — and for good reason: it's in the Constitution when dealing with impeachment.
But what bribery means is vague. It is a crime, and there is a statute, but that didn't come along until decades after the Constitution was written. Professors at a House Judiciary Committee hearing this week argued that bribery, as we know it in current law, is not what the framers had in mind when referring to impeachment.
"If you conclude that he [Trump] asked for the investigation of Vice President Biden and his son for political reasons, that is to aid his re-election, then, yes, you have bribery here," argued Stanford Law Professor Pamela Karlan during a hearing this week.
Harvard Law Professor Noah Feldman said the framers of the Constitution believed bribery meant "when the president, using the power of his office solicits or receives something of personal value from someone affected by his official powers."
Karlan cited a 1792 definition of bribery from Samuel Johnson's dictionary. She said he defined it as a crime of giving or taking rewards for bad practices.
"So if you think it's a bad practice to deny military appropriations to an ally that have been given to them," Karlan said, "if you think it's bad practice not to hold a meeting to buck up the legitimacy of a government that's on the front line, and you do that in return for the reward of getting help with your reelection, that's Samuel Johnson's definition of bribery."
Argument against: George Washington University's Jonathan Turley, no stranger to impeachment testimony, was the Republicans' witness and argued that a "bad practices" standard would set a bad precedent. He said there were "proven" and "accepted" crimes committed by both Richard Nixon and Bill Clinton.
What's more, he took a narrower view of what should constitute bribery. Using an analogy about Louis XIV and a French mistress, he argued bribery was about an exchange of money.
"That wasn't some broad notion of bribery," Turley said. "It was actually quite narrow."
If the crime of bribery then hasn't been committed, and there is no other obvious crime, like say burglary or perjury, then Turley argues someone could be impeached, but the evidence has to be clear.
"You have to stick the landing on the quid pro quo," Turley said. "It might be out there. I don't see proof of a quid pro quo."
(That's despite European Union Ambassador Gordon Sondland testifying under oath that there was a "quid pro quo" at least when it came to the holding up of a White House meeting between Trump and Zelenskiy in exchange for a public announcement of investigations.)
Sidebar: There is also a notable argument around solicitation. In other words, is it bribery if Ukraine, in the end, got the money? Republicans argue that makes this whole conversation moot. Democrats and three of the constitutional scholars disagree.
"Soliciting is enough," Karlan said, before giving the example of a traffic cop saying he'd let a speeder off the hook for $20, but deciding to let him go when the driver didn't have the money.
"The attempt itself is the impeachable act," argued Feldman.
2. Obstruction of Congress
Argument for: Democrats in Congress have issued multiple subpoenas to Trump administration officials. The administration has directed all the potential witnesses not to testify.
Some have defied that direction and testified. Other key witnesses, however, have not, namely acting White House Chief of Staff Mick Mulvaney, former Energy Secretary Rick Perry, who was dubbed one of the "Three Amigos" pushing for Ukraine to open investigations into the 2016 election and the Bidens, Secretary of State Mike Pompeo, former National Security Adviser John Bolton, Rudy Giuliani, the president's personal attorney, who multiple witnesses said was running this channel that was going around State Department officials and National Security Council staff, and White House lawyers.
The administration has also withheld reams of documents that Democrats say have thwarted their investigatory capabilities.
"Each of the branches has to be able to do its job," Feldman said.
North Carolina Law Professor Michael Gerhardt noted, "These subpoenas have the force of law." He said what Trump has done is worse than Nixon, because Nixon produced far more documents and far more witnesses were allowed to testify except "in a small but significant set of materials."
Argument against: Turley argued the withholding of witnesses and documents is not obstruction because Trump has challenged those subpoenas in court for executive privilege reasons. Therefore, Turley argues, Congress should wait until the courts weigh in before accusing him of obstruction.
"President Trump has gone to the courts," Turley said. "He's allowed to do that. We have three branches, not two."
He added, "In Nixon, it did go to the courts, and Nixon lost. And that was the reason Nixon resigned. He resigned a few days after the Supreme Court ruled against him in that critical case."
He continued: "I can't emphasize this enough and I'll say it just one more time: If you impeach a president, if you make a high crime and misdemeanor out of going to the courts; it is an abuse of power. It's your abuse of power."
3. Obstruction of justice
Argument for: Interestingly, this potential charge seemed to hinge on the Mueller Russia investigation.
Norm Eisen, a former Obama White House ethics lawyer, who handled much of the questioning for Democrats during the session with the law professors, as well as Gerhardt focused particularly on five instances noted in the Mueller probe:
- The president ordering former White House lawyer Don McGahn to fire special counsel Robert Mueller (even though he declined to do it);
- Ordering McGahn to create a false written record denying that the president had ordered Mueller to be removed;
- The meeting between the president and former Campaign Manager Corey Lewandowski to take steps to have the investigation curtailed;
- Witness tampering; and
- Dangling pardons for former campaign chairman Paul Manafort, now serving prison time for financial crimes, and Michael Cohen, Trump's former personal lawyer and fixer.
"Taken either individually or collectively, these instances are strong evidence of criminal obstruction of justice," Gerhardt said.
Interestingly, the potential witness intimidation toward former Ukraine Ambassador Marie Yovanovitch was not mentioned. That had been floated by House Intelligence Committee Chairman Adam Schiff when Trump tweeted about her while she was testifying before his committee.
Argument against: Not all Democrats are sold on bringing the Russia investigation into this mix, given they didn't pursue impeachment immediately after that report was presented. That is a fissure to keep an eye on as the articles of impeachment are drafted.
Of course, the members of Congress don't have to vote for all of the articles of impeachment. During the Nixon impeachment proceedings, two Democrats, Walter Flowers of Alabama and James Mann of South Carolina, voted against Article 3, which happened to be obstruction of Congress.
As for Republicans, there was just one who voted for all three articles of impeachment, Rep. Lawrence J. Hogan, father of none other than Larry Hogan, the Republican governor of Maryland — and no fan of President Trump.
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