“The Framers’ Worst Nightmares”

The Judiciary Committee report explains the grim constitutional stakes in the Trump impeachment.
by Kim Wehle
December 18, 2019
Featured Image
Trump's first formal portrait after winning the presidential election. (Photo by David Hume Kennerly/Getty Images)

The House Judiciary Committee’s 55-page report on the constitutional grounds for presidential impeachment is required reading for every thoughtful citizen. It not only makes the case for the soundness of the particular impeachment proceedings now underway—putting the lie to the claims of Trump defenders that the only evidence is “hearsay”—but also places the entire impeachment process in its proper context.

The overarching concept is this: Impeachment is not about Trump personally. It’s not even a Democrat vs. Republican thing. It’s a let’s save the Constitution and our representative democracy thing. Impeachment exists, the report explains, “not to inflict personal punishment for past wrongdoing, but rather to protect against future Presidential misconduct that would endanger democracy and the rule of law.”

A person who would “trade public power for personal favors” is, as the report lays out, “the kind of person likely to break the rules again if they remain in office.” Supreme Court Justice Robert Jackson accordingly underscored that “the purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.” This is not high-minded constitutional theory. It’s about common-sense psychology. People with power want to retain power and—if left unchecked—will resort to abuse in order to do so.

For evidence of this principle, one need look no further than those Republicans in Congress who are thumbing their nose at the facts, the Constitution, and the future of American democracy in order to—you guessed it—stay in power. Republican politicians believe that their futures lie at the feet of Donald J. Trump. For those who dare to go off script, a negative Trumpian tweet or jeering comment at a rally could end their careers. So they’re finding themselves selling out our children’s futures in order to protect themselves today.

And let’s be clear: The future of the separation of powers is hanging by a thread. As explained in the full, 600-plus-page Judiciary Committee report on the Trump impeachment—a document that includes within it the shorter constitutional report described above, as well as various other matters submitted for the official record—the Framers “repeatedly returned to two very specific risks: betrayal of the national interest and corruption of elections.” Indeed, the Framers “perceived these abuses as existential threats to the Republic.” They worried “that Presidents would improperly use the vast power of their office to ensure their own re-election.” It is clear from the impeachment-hearing record that Donald Trump did just that, and when combined with his “conspir[ing] with a foreign power,” he represents “the Framers’ worst nightmares.”

If Senate Majority Leader Mitch McConnell succeeds in his public promise to ensure Trump’s acquittal regardless of the facts, the law, and the survival of our republic, we as Americans need to be prepared for a new normal, colored by a few de facto amendments to the U.S. Constitution:

  • When Electoral College votes are tallied, we can no longer be sure that the final count represents the will of the people, as we will have condoned the possibility of elections rigged by incumbents using their official powers to threaten foreign governments into interfering on their behalf.
  • If the president calls out troops to squelch a peaceful protest, deports American citizens because they were born in another country, or directs that certain people be arrested or imprisoned because of their political or religious views, we cannot turn to the U.S. Congress for consequences and accountability. Only the federal courts will remain as a branch with oversight over the executive, and even that recourse assumes that the president continues to honor the legitimacy of the judicial branch as a check on the presidency.
  • If the president employs the U.S. military abroad, we cannot be sure that he is doing it to serve the interests of the United States instead of his personal interests or those of a personal “ally,” such as Russian president Vladimir Putin. We must accept that our service members who take an oath to defend the Constitution could die defending a would-be monarch or his foreign ally whose interests conflict with those of the United States.
  • If the president taps a private lawyer, lobbyist, or corporation to undertake work as a substitute for official channels, and if that person or entity takes actions that harm Americans while serving the president’s personal interests, we will have no recourse through the Constitution, federal statutes imposing oversight on federal employees, or the Senate’s advice and consent authority for presidential appointees. We will have sanctioned a shadow government detached from legal oversight and electoral accountability, and there will be nowhere to turn within the confines of the law and the separation of powers if things go awry (which they will).
  • For federal employees, keeping their jobs and avoiding public humiliation and potential ruin will require abject loyalty to the man in office rather than to the rule of law. The same goes for our military.

If you think this is all hyperbole, read the report for yourself—or at least read the key findings of fact starting on page 82, as well as the “dissenting views” of Republicans starting on page 181. The primary Republican response is that “significant new facts have come to light that further contradict the Majority’s primary allegation that the President conditioned U.S. security assistance on the initiation of Ukrainian investigations into a political rival”—to wit, Ukrainian President Zelensky himself has said he was not part of a quid pro quo. Without additional direct evidence of corruption on the President’s part, the Republican argument goes, there is not “clear and convincing evidence” of impeachable conduct to justify removal.

Even assuming for the sake of argument that the clear-and-convincing standard is the appropriate standard, an acquittal on the grounds that more facts are needed to hammer home the abuse of power charge does nothing to address the “new normal” that an acquittal will mean for our Constitution.

And that is what ultimately matters here: the continuation and integrity of our constitutional order.

Members of Congress considering impeachment in the House this week and in the Senate in the weeks ahead must decide what they want their legacy to be. These proceedings are about much more than Trump the man. To impeach him is to hold him to account for his conduct. To look the other way—to pretend as though there is nothing wrong with his conduct—is to welcome the twilight of our American democratic republic.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is 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). Her new book, What You Need to Know About Voting—and Why (HarperCollins) goes on sale today, June 16. Twitter: @kimwehle.