Published by The Lawfare Institute
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As the House Judiciary Committee begins to draft proposed articles of impeachment against President Trump, the committee should be mindful of the significance of its work. As prosecutors quickly learn, charging documents serve not only to inform the accused of the charges against him or her but also to frame the evidence and persuade fact-finders of the need to hold the accused accountable. With those goals in mind, here is a prosecutor’s guide to drafting charges against Trump.
What’s the Purpose?
Prosecutors are trained to begin with the end in mind, and to consider at the outset the purpose of a criminal prosecution—to protect public safety, to deter charged individuals and other members of society from engaging in similar conduct, and to rehabilitate offenders or to punish them.
Here, the goal of impeachment is not to punish Trump for past misdeeds or to reverse the outcome of a prior election, but to protect the country’s future—especially with the 2020 election looming. The public needs to be protected from a president who continues to invite foreign interference into U.S. elections. Indeed, Trump’s July 25 telephone call to Ukrainian President Volodymyr Zelensky came just one day after Special Counsel Robert Mueller testified before Congress about the Trump campaign’s conduct in welcoming election assistance from Russia in the 2016 election. When a president works to rig elections, Americans can’t count on the electoral process to remove him.
Impeachment is also necessary to deter Trump and others from engaging in similar abuses of power in the future. Deterrence is needed in at least three categories: inviting election interference, risking national security by withholding military aid, and obstructing Congress by refusing to comply with subpoenas. Impeaching Trump for this conduct sends a message that such behavior will not be tolerated in the future. Likewise, failing to impeach Trump for these actions sets a precedent that will permit all future presidents to engage in similar behavior with impunity.
How Many Counts?
In every case, prosecutors wrestle with how many counts to include. Both over-inclusion and under-inclusion have risks. The risk of over-inclusion is confusion of the issues and dilution of the more powerful evidence. When I attended training for new federal prosecutors, we were taught that the U.S. government rarely loses cases because the jury does not believe its case; instead, losses come when the jury does not understand the government’s case. Including too many counts is risky because this requires too many facts and too many legal issues for people to comprehend.
In addition, the inclusion of a weak count can tank the whole case. Three good counts in an indictment can be poisoned by a fourth weak count because it allows the defense to focus attention there, raising skepticism about the entire case. Why give critics a talking point when even one count of conviction will do?
By contrast, the risk of under-inclusion is that fact-finders are unaware of the full scope of bad conduct and, consequently, may be willing to give a pass for the misconduct of which they are aware. Had they known about the additional criminal conduct, however, they may have decided that the totality of misconduct was just too much to overlook.
How Broadly Should the Articles Be Framed?
One issue House members face is whether to limit the articles to Trump’s dealings with Ukraine or to instead include other conduct, such as matters investigated by Mueller and apparent violations of the Emoluments Clauses of the Constitution. Reporting indicates that House Democrats are divided on this issue.
The Mueller report makes a compelling case that Trump obstructed justice in 10 different ways—for example, the conclusion that the president directed White House Counsel Don McGahn to create a false document to conceal Trump’s order to fire Mueller. House Judiciary Committee Chairman Jerrold Nadler’s opening remarks at the Dec. 4 hearing suggested that the committee is at least considering including obstructive conduct from the Mueller investigation.
In addition, lawsuits have been filed accusing Trump of violating the Constitution’s Emoluments Clauses, which prohibit gifts or payments from foreign governments and payment other than his salary. Trump’s profits from his hotels patronized by foreign delegations could arguably violate the constitutional restriction on foreign payments. Using Trump’s hotel in Scotland for accommodations for U.S. service members and using Mar-a-Lago as the “Winter White House” might violate the provision against payments other than the president’s salary.
But just because a crime was committed does not mean that a prosecutor must charge it. Instead, prosecutors use their discretion and decide whether a substantial public interest would be served by bringing the charge.
In the impeachment context, before the Ukraine story broke, the majority of voters seemed unpersuaded that Trump’s conduct as described in the Mueller report constituted impeachable conduct. Likewise, the emoluments allegations had not moved the needle on impeachment before the Ukraine scandal became public. Including articles of impeachment about this conduct is likely only to confuse the issues and detract from the serious misconduct that can be alleged regarding Ukraine. Keeping the articles limited to conduct relating to Ukraine would make for a more understandable and compelling case without the risk of diluting the strong counts with weak ones.
The risks of being under-inclusive are mitigated here, because the nature of impeachment proceedings makes them different from criminal charges in one important respect. In a criminal trial, juries usually know nothing about the defendant before them. If charges about particular misconduct are not included in an indictment, then the jury will never know about it. In an impeachment proceeding, by contrast, the jury is the U.S. Senate, to whom the president’s past behavior is well known. While senators will base their decision at trial on the articles of impeachment that are before them, it is impossible to un-ring the bell with regard to information known to them about Trump’s conduct toward Russia, obstruction of justice, emoluments and all manner of other bad conduct in office. For that reason, the risk of under-inclusion is lessened in impeachment proceedings, a fact that favors a less-is-more approach.
Criminal Statutes or Abuse of Power?
As several law professors stated in their testimony before Congress, impeachment articles need not allege violations of criminal statutes to amount to “Treason, Bribery or other high Crimes and Misdemeanors,” the constitutional standard for impeachment. For that reason, the articles may include criminal conduct, but they need not.
Drafters of the impeachment articles seem likely to include bribery because it is specified in the Constitution as a basis for impeachment. Bribery, defined as soliciting a favor or benefit in exchange for influencing an official act, seems to fit Trump’s conduct: He asked for announcements of investigations in exchange for military aid and a White House visit.
But rather than trying to satisfy technical statutory requirements such as “quid pro quo,” and allowing Republicans to quibble over legal definitions and factual conclusions as to whether one thing was conditioned on the other, House members would be wise to frame the articles more broadly in terms of abuse of office—which is at the heart of impeachable conduct. The law professors testified that the greatest fears of the framers were foreign influence, subverting elections, and abuse of power to promote personal interests. Here, drafters could make a compelling case that Trump’s conduct has made all of those fears come true.
What to Charge?
When considering the goals of protecting the public and deterring corrupt behavior, three appropriate articles of impeachment emerge: (1) inviting foreign influence in U.S. elections, (2) risking harm to national security by withholding military aid for personal reasons and (3) obstructing Congress in its oversight function.
Testifying before Congress, Noah Feldman argued that inviting election interference alone is an impeachable offense on the grounds that foreign influence would corrupt our election process and allow adversaries to control the leadership of our country. Rigging an election is particularly harmful because elections then become inadequate as a way to remove a corrupt president from office. Here, Trump allegedly invited interference into the presidential election when he asked Zelensky to publicly announce investigations into Trump’s political rivals. It is enough that Trump sought interference in the fair administration of elections by inviting a foreign government to become involved in the U.S. presidential election, even if it is not tied to withholding military aid and a White House visit. This conduct alone should be the basis of an article of impeachment.
In addition to election interference, drafters should also frame the articles in terms of harm to national security. By withholding the release of nearly $400 million in military aid to Ukraine, the president arguably violated the Impoundment Control Act of 1974, a post-Watergate law that prohibits the executive branch from withholding spending authorized by Congress. While President Trump has authority to determine foreign policy, he has yet to articulate a sound policy reason for withholding the aid, and testimony from government officials suggests there was none. President Trump has argued that he had general concerns about corruption in Ukraine, but those arguments are belied by the testimony of State Department official David Holmes, who reported that U.S. Ambassador to the European Union Gordon Sondland said that Trump does not “give a sh-t about Ukraine” and cares only about “big stuff that benefits the president,” such as the Biden investigation. In freezing the aid, it is a fair inference that the president corruptly put his own political interest ahead of the interests of the country. Congress authorized the military aid to help Ukraine defend itself following Russia’s 2014 invasion of Crimea, which Russia still occupies. Helping Ukraine is essential to protecting Europe from Russian aggression and is part of long-term U.S. foreign policy. Failing to contain a U.S. adversary harms U.S. national security by allowing the Russian threat to grow. Withholding aid that was promised also harms U.S. credibility as a reliable partner with our allies around the world, and undermines American efforts to promote democracy by fighting corruption. Even if the delay of military aid were not tied to the demand for investigations, this conduct, standing alone, is impeachable.
Finally, the articles of impeachment should also include contempt of Congress. Early on, Trump vowed that he would be “fighting all the subpoenas.” He has refused to comply with subpoenas for witnesses and documents, and has used the courts to stall—perhaps hoping that if he can push the day of reckoning to a time that is very close to the November election, he can run out the clock. This is an astonishing display of contempt for a co-equal branch of government.
When Trump’s supporters complain of a lack of evidence for impeachment, they should be reminded that the cause is an obstructive president. In some proceedings, when one party prevents the other from obtaining evidence, the court permits an adverse inference that the evidence would have been damaging to the uncooperative party. Trump’s recalcitrance interferes with the House’s ability to conduct its oversight function and violates the president’s oath of office to support and defend the Constitution and to take care that the laws be faithfully executed. His contempt for the authority of Congress offends our tripartite structure of government. To deter such behavior in the future, this obstruction should be a basis for a third article of impeachment.
If the purposes of impeachment—protecting the public and deterring this president and future presidents from engaging in similar conduct—are kept in mind, the articles practically write themselves. Impeachment is not about reversing the results of an election. It is about removing from office a president whose conduct poses a threat to American democracy and proclaiming that certain types of misconduct by a president will not be tolerated in this country.