President Trump added some star power to his defense team Friday, with celebrity defense lawyer Alan Dershowitz and former independent counsel Kenneth W. Starr joining the squad. Then over the weekend, we got a preview of the president’s case against impeachment, in the form of a 110-page “trial memorandum” drafted by Trump’s personal lawyer Jay Sekulow and White House counsel Pat Cipollone.
The good news for fans of legal combat is that the Senate trial promises to be entertaining. The bad news is that the Trump team’s constitutional arguments can barely pass a straight-face test.
The first article of impeachment the House passed last month charges Trump with abusing his power by withholding military aid unless and until Ukrainians announced an investigation into Trump’s leading 2020 rival, Joe Biden. In its trial brief, the Trump defense team responds by calling abuse of power a “novel,” “concocted” and “made-up theory” that “fails to state an impeachable offense because it does not rest on a violation of an established law.”
All of this would have been news to James Madison, “Father of the Constitution” and a central figure in the debates over its impeachment clauses. It would have been news as well to other Framers, like Edmund Randolph, who lauded “the propriety of impeachments” on the grounds that “the Executive will have great opportunitys of abusing his power.” Madison understood “high crimes and misdemeanors” to cover lawful but otherwise abusive exercises of presidential power, like corrupt pardons or “wanton removal of meritorious officers.”
At the Virginia Ratifying Convention in 1788, when George Mason worried that the president’s broad pardon power would allow him to lawfully “pardon crimes which were advised by himself,” Madison insisted that impeachment was the appropriate remedy. He even saw impeachment as a method for disciplining “an unworthy president” who hires bad officers and fires good ones; “such abuse of his power” was, he affirmed, worthy grounds for impeachment.
The Trump team’s notion that impeachment requires a “violation of established law” is itself novel. As Justice Joseph Story noted in 1833, since the Constitution’s ratification, no one had been heard to argue that impeachable offenses were limited to what could be found “in the statute book of the Union.” In fact, over our entire constitutional history, fewer than a third of the impeachments approved by the House “have specifically invoked a criminal statute.”
The Trump trial brief is chock-full of tendentious and unsupportable arguments. The president’s counsel complain that “House Democrats do not have a single witness who claims, based on direct knowledge,” that Trump conditioned military aid on an investigation of the Bidens. Since it was the president’s order to stonewall the impeachment inquiry that prevented such witnesses from testifying, that argument smacks of the kid who murders his parents and throws himself on the mercy of the court as an orphan.
But for sheer chutzpah, nothing compares to the Trump attorneys’ assertion that abuse of power is a “novel” theory of impeachment — it’s actually impeachment’s core. President Nixon quit before he could be impeached by the full House, but Watergate rightfully looms large as a paradigm case for what impeachment is for: a corrupt president who misuses the powers of his office to “best screw” political enemies, as the famed Nixon “enemies list” memo put it.
As Starr learned during his independent counsel days, the key difficulty with selling the impeachment of President Clinton was that — while Clinton broke the law to cover up a private sexual affair — he largely avoided using the powers of the office to do so. In 1999, Republicans like Lindsey Graham had to argue that impeachment went beyond policing abuse of office, to “cleansing the office” and restoring its “honor and integrity.”
One more thing: Trump’s lawyers argue that, when it comes to impeachment, our “one and only president” deserves special treatment. His “unique role in our constitutional structure sets him apart and warrants more rigorous standards.”
This too would have been news to Madison, who thought the singular nature of the office made impeachment all the more “indispensable” when it came to the presidency. As he noted at the Constitutional Convention, the fact that “the Executive magistracy … was to be administered by a single man,” meant that incapacity or corruption in that office “might be fatal to the Republic.” Given the vast powers the modern presidency holds, that concern is even more urgent today.
Gene Healy is a vice president at the Cato Institute and author of “Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power.”