Marking Up the Articles of Impeachment

By Scott R. Anderson, Susan Hennessey, Quinta Jurecic, Margaret Taylor
Wednesday, December 11, 2019, 4:09 PM

On Tuesday, Dec. 10, the House of Representatives released two articles of impeachment against President Donald Trump. Article I charges that the president abused his power by engaging in a wide-ranging scheme to solicit foreign interference from the Ukrainian government in the form of politically motivated and advantageous investigations. It further charges that Trump conditioned official acts—specifically, the release of military aid and a White House meeting—on Ukraine publicly announcing those investigations. Article II charges that the president has obstructed Congress by directing executive branch officials to refuse to produce documents and testimony in response to congressional subpoenas.

Yesterday, we examined the strategic choices underlying the articles. Time will tell whether that strategy pays off or backfires—but, whatever the underlying wisdom of those choices, this is the draft off of which the House Judiciary Committee will work, and it is highly unlikely that dramatic changes or additions will be made.When the House resolution containing the articles is marked up by the committee on Thursday, Dec. 12, however, there may be an opportunity to make adjustments and technical fixes designed to more clearly accomplish the House’s aims.

In examining articles of impeachment as legislative text, it is useful to consider the unusual space they occupy. In many ways, articles of impeachment are similar to a complaint or indictment in criminal litigation in that they lay out the basic statement of facts upon which the House believes the case for impeachment rests. Criminal complaints and indictments, however, are drafted against the backdrop of a defined framework of statutory law. Impeachment is different. The legal standards surrounding impeachment are formally undefined, contested in various ways, and largely left up to Congress itself to determine. This makes the task of drafting impeachment articles complex, and it also means that the text of the articles themselves help constitute what the House views as the legal contours of the impeachment power and what sort of conduct it covers. The articles are drafted with both persuasive goals—setting forth the argument as to what occurred and that it is impeachable—and defensive goals in mind, aiming to head off the counterarguments from members looking to defend the president on factual legal grounds.

Additionally, articles of impeachment need to be drafted with an eye toward precedent. Because impeachments are rare and the standards are not fixed, each article is important. And while there are risks of being too narrow, generally the more serious concern is being overbroad in a manner that might lead to unjustified impeachments in the future. Members of Congress considering the precedential consequences will consider whether they would support or oppose similar articles if leveled against a president more in line with their political views.

As a result, the House Judiciary Committee must now thread a rather complicated set of needles. So how well do the articles as drafted stand up to the task? Overall, the picture is pretty good. The current draft is well tailored to achieve the House’s goals and to avoid major pitfalls or unintended consequences. That said, there are a few areas where minor changes could strengthen the draft. Below is a list of proposed changes.

1. Clarifying That Abuse of Power Doesn’t Require a Quid Pro Quo

Article I charges President Trump with abuse of power in part on the grounds that he “conditioned two official acts” on the investigations he was seeking for his personal political advantage—in other words, that he proposed a quid pro quo with Ukraine. This is a reasonable interpretation of the facts in evidence, and it seems clearly intended to group bribery—the type of offense usually associated with quid pro quos—in with other abuses of power under a single article of impeachment. But there should be additional clarification that the legal standard for abuses of power does not require a quid pro quo.

As Noah Feldman described in his opening statement before the Judiciary Committee,

abuse of power covers efforts to “us[e] the office of the presidency for personal advantage or gain, not for the public interest.” Bribery and other corrupt exchanges that include a quid pro quo within their technical definitions are one type of abuse of power, but they are not the only type. The president can abuse his power absent a quid pro quo. For example, if President Trump were to direct the U.S. military to blow up a hotel competing with one of his own, there would be no quid pro quo, but he would have undoubtedly committed an impeachable abuse of power. Similarly, a quid pro quo may be one way in which a president can use his office to secure a personal benefit, but it is by no means the only one.

In the present case, there is ample evidence that the president used the powers of his office to pursue the political investigations he wanted separate and apart from the two conditions Article I describes. Most notably, the president used an array of U.S. government officials under his direction and various official channels of communication to relay his self-interested demand for investigations; that’s an impeachable abuse of power in its own right, separate and apart from any conditionality or quid pro quo.

Perhaps this is what the House intended to cover when it described “Trump—acting both directly and through his agents within and outside the United States Government—corruptly solicit[ing] [Ukraine]” as part of Trump’s scheme, in addition to the two instances of conditionality. The same may also be true of the House’s observation that Trump “persisted in [doing so] to undertake investigations for his personal political benefit” even after he released the military assistance. But if these are intended to be separate and independent grounds for finding an abuse of power (as they should be), the House should be more explicit on this point, or risk that a senator will make the mistake of believing that doubts about the existence of a quid pro quo are enough reason to acquit on this charge under the House’s own formulation. To avoid such confusion, Article I should make clear that an abuse of power can stand independent of any conditionality or quid pro quo, so long as the president has attempted to use the powers of his office to advance his personal interests. Below is one set of edits that could accomplish this objective. (Additions to the original text are in bold and underlined, while deletions are in italics and struck through.)

At page 2, in the paragraph beginning on line 17, the House could make clear that the two conditionalities it describes are just part of the broader official acts that Trump pursued as part of his scheme:

Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting using his authority over United States officials and channels of communication to use them to solicit the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. Among the official acts he pursued as part of this scheme, President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of investigations.

At page 3, in the paragraph beginning on line 11, the House could also clarify that the three sets of actions it identifies as part of Trump’s scheme each constitute independent grounds for an abuse of power offense:

President Trump used his authority as President to engaged in this scheme or course of conduct through the following means, each of which constitutes an abuse of power[.]

2. Trump’s Conditionality Wasn’t Just About the Held Security Assistance

The House may also wish to more carefully identify the different items Trump sought to withhold from Ukraine in order to force the announcement of investigations. Article I identifies two “official acts” on which the president “conditioned” his demand: a White House meeting and “the release of $391 million of ... vital military and security assistance . . . which President Trump had ordered suspended[.]” There is ample evidence in the record supporting the former assertion, but the evidence supporting the latter is less definitive. While Ambassador Gordon Sondland testified that Trump had made the former conditionality clear to him in their communications, he claimed to have only inferred the conditionality of the latter and communicated it to other U.S. and Ukrainian officials. (It is worth noting here that testimony from key figures like Mick Mulvaney, who serves as both the head of the Office of Management and Budget and the Acting White House Chief of Staff, could potentially establish a direct link, but Mulvaney and others who may have such information have so far refused to participate in the impeachment process.) And while there is some evidence that the Ukrainian Embassy might have been aware that the $391 million in U.S. security assistance was being held at the time of the July 25 Trump-Zelensky call on which Trump personally requested the two investigations, it’s unclear whether Zelensky or Trump knew this to be the case at the time.

That said, both Trump and Zelensky were well aware that Ukraine relies heavily on various forms of U.S. security assistance to defend itself from Russian aggression. Indeed, Zelensky was seeking Trump’s support for “the next steps” in that assistance—a Ukrainian request to purchase Javelin anti-tank missiles and other arms from the United States that Ukrainian officials had submitted a few weeks earlier—when Trump used his infamous line, “I would like you to do us a favor though” to pivot to his request for the investigations. Whether Trump or Zelensky knew specifically about the hold on security assistance or even the arms purchase request is largely irrelevant, as both were fully aware of the power that Trump had over the security relationship that was essential to Ukraine’s survival. The held security assistance was just one part of that broader relationship. And it’s that relationship, not just the held assistance, that Trump sought to condition on his demand for investigations.

To avoid asserting too narrow a basis for this conditionality, the House Democrats could amend Article I to discuss the U.S.-Ukraine security relationship more broadly, not just the hold on security assistance. For example, in the paragraph beginning on page 4, line 4, they could make the following changes:

(A) the continuation of United States assistance and support that was essential to Ukraine’s efforts to defend itself against Russian aggression, including but not limited to the release of $391 million of United States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended[.]

3. Clarify the Relevance of Harming U.S. National Security

House Democrats may also wish to clarify the language they use regarding how Trump’s actions toward Ukraine have impacted U.S. national security. Article I currently states that Trump “abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit.” This current wording risks creating confusion over the significance of national security interests to the overall argument. Presidents can abuse their power even where their actions do not harm national security. Similarly, a president may take actions that harm U.S. national security that are not impeachable abuses of power.

The House Democrats’ main purpose in raising national security appears to be to help demonstrate that the president acted corruptly. Some of the president’s defenders have argued that Trump pursued investigations as part of a legitimate anti-corruption effort or in other ways that were meant to serve U.S. national interests. The House is asserting that the facts bely this defense by showing that Trump’s actions in fact ignored and even injured U.S. national security interests. As a result, they leave little doubt that Trump’s actions were motivated by his clear personal political interest in the investigations, consistent with an abuse of power.

But the current language risks being read as treating injury to national security as a necessary or sufficient element for abuse of power impeachment. This is inconsistent with how abuses of power are usually conceived and also risks being perceived as pursuing impeachment over policy differences—something widely seen as being beyond the intended scope of Congress’s impeachment power. Senators adjudicating the president’s conduct on the basis of this article may conclude that relying on national security in this fashion is improper or that passing judgments treads too far on the president’s authority over national security affairs. Or a future Congress may view this as precedent for impeaching a future president over their different views of national security, pushing impeachment one step closer to being a tool of partisan politics. Clarifying the language could avoid these outcomes.

To pursue clarification, the House could make a set of minimal edits to the paragraph beginning on page 3, line 3:

President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit. In so doingTo do so, President Trump used the powers of the Presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interests of the Nation in order to pursue his personal interests.

As well as the following edits to the two paragraphs beginning on page 5, line 1:

In all of this, President Trump abused his powers of the Presidency by seeking to obtain an improper personal political benefit while ignoring and injuring national security and other vital interests to obtain an improper personal political benefit. He also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.

Wherefore President Trump, by such self-interested conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law.

4. Clarifying the Basis for the Obstruction of Congress Charge

Article II, meanwhile, addresses Trump’s alleged obstruction of Congress. Its allegations rightfully center on the president’s direction that U.S. government officials should not cooperate with the impeachment inquiry in any regard, as set forth in an Oct. 8 letter by White House Counsel Pat Cippolone and reiterated in subsequent correspondence on Dec. 1 and Dec. 6. For reasons discussed at length elsewhere, the legal arguments put forward on the president’s behalf in those letters fail to assert any remotely credible or good-faith legal basis for declining to cooperate with the inquiry in such categorical fashion. Yet nearly every executive branch witness who refused to cooperate with the impeachment inquiry cited the Oct. 8 letter and related executive branch directions as the reason they would not participate. A handful also included other legal arguments related to their specific situations.

Article II does not, however, bring in the Oct. 8 letter until late in the game, mentioning that “no President has ever ordered the complete defiance of an impeachment inquiry” only as the article comes to a close. In articulating the factual grounds for impeachment for obstruction of Congress, it instead focuses on the ways in which the Trump administration has failed to cooperate with the impeachment inquiry, including by refusing to comply with subpoenas for documents or to permit testimony by White House officials, while simply noting that these actions were “without lawful cause or excuse[.]”

The problem with this approach is that the executive branch frequently pushes back on congressional subpoenas and requests with arguments that Congress may not agree with—and at times, the executive branch has even been proved correct. For example, during the Obama administration, House Republicans took the executive branch to court over its assertion of executive privilege in relation to documents about the “Fast and Furious” operation. Neither side was fully vindicated, but the court ultimately upheld some of the executive branch’s withholdings. While a similar outcome seems extremely unlikely in this case, some aspects of the Trump administration’s objections to specific subpoenas, such as those related to claims of absolute immunity or the presence of agency counsel, are at least the subject of legitimate legal debate. And to avoid a long litigation fight, the House has elected not to challenge these assertions in the federal courts. This is a reasonable and valid strategy given the strong record it has assembled in spite of the Trump administration’s intransigence, but it nonetheless prevents the House from clearly distinguishing these assertions from other arguments the executive branch may make regarding why it does not need to fully comply with a given subpoena with which it may not agree.

The risk is that, in hinging impeachment simply on “unlawful” noncompliance with congressional subpoenas, Congress may set a precedent that encompasses future valid assertions by the executive branch. This in turn could make it easier for future congresses of either party to use impeachment as a partisan political tool. For example, House Republicans might have sought to impeach President Obama over his refusal to comply with their Fast and Furious subpoenas instead of going to court. Such risks are easily overstated and admittedly feature prominently in the talking points of opponents of the impeachment inquiry (which we are decidedly not). But they nonetheless describe a valid underlying risk, one that should be reasonably minimized where possible.

But President Trump has provided House Democrats an easy means by which they may sidestep these messy issues in the form of the Oct. 8 letter. Instead of emphasizing simple noncompliance, House Democrats could focus more explicitly on what makes Trump’s actions so unprecedented: his baseless assertion that the impeachment inquiry “lacks any legitimate constitutional foundation” and “violate[s] basic principles of due process and fundamental fairness[,]” and resulting direction that the executive branch should categorically not cooperate with it in any respect, even if the procedural defects he alleges were resolved. These contentions are well outside the bounds of any good-faith legal argument, and the categorical direction not to cooperate moving forward is entirely inconsistent with the “obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the other branch” that the Justice Department has argued is at the heart of the accommodation process. Focusing specifically on these actions would rightfully allow House Democrats to bring charges for the president’s lawless obstruction of the impeachment inquiry but would minimize the risk of creating a precedent that might be used against future good-faith actions that the executive branch may pursue.

To accomplish this objective, the House could implement a limited set of changes to Article II, specifically in the two paragraphs that begin on page 6, line 16:

In response, without lawful cause or excuse, President Trump categorically rejected the validity of the impeachment inquiry and directed Executive Branch agencies, offices, and officials not to comply with those subpoenas cooperate with the impeachment inquiry in any regard, including by refusing to comply with those subpoenas, without asserting any credible legal basis for such action. President Trump thus interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assumed to himself functions and judgments necessary to the exercise of the “sole Power of Impeachment” vested by the Constitution in the House of Representatives.

President Trump abused the powers of his high office by categorically directing the Executive Branch not to cooperate with the impeachment inquiry, including through the following means[.]