Impeachment

Normalizing Trump’s Abuse of Power

The risk to the presidency if Trump isn’t held accountable.
by Kim Wehle
January 24, 2020
Featured Image
(Digital collage by Hannah Yoest / Photos from GettyImages)

Imagine you were a senator—of either party—who somehow entered the impeachment trial with no prior knowledge about the case against President Trump. What would you have learned so far, now that the House managers have used two of the three days allotted them to make their argument?

About the first article of impeachment—which claims that Trump abused the power of his office in connection with his pressure campaign to get Ukrainian President Zelensky to announce an investigation of Joe Biden and his son Hunter—this is the broad outline of what you would now know:

  1. Impeachment and removal from office does not require a crime. Abuse of office is enough.
  2. A charge of abuse of office requires more than a genuine, good-faith policy disagreement between the president and Congress.
  3. History suggests that pressuring the FBI and the CIA to end a criminal investigation implicating the Oval Office is an abuse of power (it’s why Republicans successfully pressed President Richard Nixon to resign).
  4. The House managers’ story—that Trump halted the release of military aid authorized by Congress in order to pressure a foreign government to smear a political opponent—may well be an abuse of power. Team Trump’s account, which is that he instead asked a foreign government to root out its own corruption, would likely not qualify as an abuse of power.

The questions remaining at this point are twofold—one legal and one factual.

The legal question is whether using the power of the presidency to force a foreign government to announce dirt on a political opponent as a condition to obtaining congressionally approved aid constitutes an abuse of power. Is what Trump did more comparable to what Nixon did? Or is it more like what presidents do every day when they make decisions that are politically fraught—particularly in the area of diplomacy and national security?

We have yet to hear a clear, unequivocal answer to this legal question from Senate Republicans. Make no mistake, however: If the answer is that what Trump did was not an abuse of power, we as Americans must accept the new reality that this tool is now in the presidential tool box for future presidents to use at will. That revised job description will enable presidents—both Republicans and Democrats—to use the massive power of the office to influence elections so they can stay in office.

Let’s not forget, too, that the powers of the presidency are extraordinary. Not only is he the commander-in-chief of the U.S. armed forces and the head of the federal criminal justice and national security apparatuses, but the president is the boss of millions of federal employees who do everything from auditing tax returns to legalizing prescription drugs. A green light allowing future presidents to pull those levers of power in ways that benefit the White House occupant personally—regardless of the interests and needs of the American populace—is no small matter.

Podcast
Lachlan Markay and Asawin Suebsaeng on Sinking in the Swamp.

Assuming that Trump loses the legal question, the factual question that remains is whether Trump in fact withheld $391 million in military aid to Ukraine and a White House meeting with the new Ukrainian president in order to strong-arm Zelensky into announcing an investigation into the Bidens. If instead, the Republican argument goes, Trump wanted Zelensky to investigate the lingering accusation that the Ukrainians sought to interfere in the 2016 U.S. presidential election, then it is reasonable for Trump to ask Zelensky to get to the bottom of it on behalf of the American public.

The problem with the Ukrainian interference narrative is that FBI Director Christopher Wray has stated unequivocally that the U.S. government has no information that would indicate that Ukraine tried to interfere. None. House managers played a tape of Wray’s interview with ABC News on this subject on Thursday. He did not hedge. He didn’t say, for example, that the FBI “has concluded” that there was no interference. He said there is no information whatsoever that would even indicate that Ukraine interfered.

As for the alleged Biden corruption, Ukraine’s current prosecutor general, Yuriy Lutsenko, has stated publicly that there is no evidence that Biden or his son engaged in any wrongdoing in Ukraine. And of course, it is well established that Trump engaged in his alleged “anti-corruption” campaign through his private lawyer, Rudy Giuliani, who owes no loyalty to the American people and is not bound by the Constitution or ethics laws that govern federal employees. This in-your-face reality is deeply troubling, and marks another “new normal” for presidencies if, as expected, Senate Republicans give Trump a pass here.

Even affording Trump the benefit of the doubt, Senate Republicans’ complaints that the trial thus far has revealed “nothing new” raises the question that is perhaps the biggest one in this trial: Will the American public hear from National Security Advisor John Bolton and other top Trump aides who appear to have first-hand knowledge of the president’s motivation—and could therefore settle the matter for good?

Republicans don’t want to hear from Bolton. That sad truth is clear. As for Trump, in a rare moment of honesty, he confessed that Bolton should not talk because “he knows some of my thoughts.”

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is currently a visiting professor and fellow in law and government at American University’s Washington College of Law. She is also a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins).