High Crimes and Misdemeanors
I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
-Presidential Oath of Office
The day has finally arrived when we will begin to determine the fate of the Presidency of Donald J. Trump. And, although Senate Republicans are steadfast in their determination to get the whole thing over with quickly, culminating in a predictable acquittal, we as a country will have to deal with how history will treat the participants in only the third impeachment of a president in our 250 year history. However, this will certainly be the first that relies on Twitter for summarizing the President’s defense: “political witch hunt,” “sham,” “hoax,” “they are trying to overturn the election,” “where is the impeachable offense?” But the key phrase, and the only one that really matters is “do us a favor, though.” Not as snappy as: “what did the President know and when did he know it?” but just as salient.
The battle over additional witnesses and the introduction of evidence discovered after the House impeachment vote (thanks, Lev) is almost beside the point because the facts are simple: Trump withholds aid approved by Congress and desperately needed by the Ukrainians in their internecine battle with Russia and dangles the possibility of a White House visit to newly elected comedian-turned President Zelensky until he promises a thorough investigation of Trump’s most feared opponent, Joe Biden, and his son and the totally discredited theory that Ukraine, not Russia, interfered in the 2016 election.
Yes, I know, Mr. Trump is so moral and upstanding in his concern about corruption that his defenders claim he was only talking about corruption in general and not only that of the Bidens. One could only wish that he would be as concerned with the behavior of other recipients of his largesse, as when he makes nice with the murderous Mohammad bin Salman or coddles his favorite autocrats, Erdogan, Bolsonaro, Orban and, of course, Ukraine’s primary antagonist, Putin. Such a righteous man.
The trial that will not be a trial in the Senate will have the Republicans couch his defense on two arguments: one, the House investigation was unfair and, therefore, a sham, and two, abuse of power is not an impeachable offense. The subtext is that the President is not obliged to cooperate in his own impeachment process, so his refusal to allow witnesses who actually know the facts cannot itself be impeachable as obstruction of Congress.
Well, variations of these arguments were made, unsuccessfully, during the Watergate drama, and we all know how that ended. Of course then the Republicans who began the process as steadfast defenders of Nixon by and large remained open to learning the facts, even though it took the “smoking gun” tape of June 23, 1972 in which RN ordered the FBI to stop investigating the burglary because it involved a matter of “national security,” to turn the few remaining holdouts in favor of impeachment. [Is it merely a coincidence that two key figures from that drama, Egil Krogh, who authorized the break-in at the office of Daniel Ellsberg’s psychiatrist, and Tom Railsback, the Illinois Republican who helped draft the articles of impeachment, died this week?]
Meanwhile Trump, taking a lesson from Tricky Dick himself, flits around the globe, trying to appear presidential and above the fray, the anti-globalist charming the masters of the universe at Davos. But, we all know that this day was inevitable from the moment Trump took that oath: the man is a walking abuse of power. There is no need for a “smoking gun;” it exists in his very being.
Well, I’m no Constitutional scholar, but the undefined concept of “high crimes and misdemeanors’” when the president is involved, necessarily includes abuse of power when he violates the oath of office and does not necessarily require the commission of a crime, contrary to what Alan Dershowitz now says. Hamilton, in Federalist Paper № 65, clearly contemplated this argument and shot it down when he wrote:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
Trading Congressionally-approved foreign aid to an ally for a political favor? If, as appears certain, the Republican-controlled Senate agrees with Mr. Trump that such a proposal was “perfect,” somehow I doubt that history will agree.
