As soon as Donald J. Trump was elected president of the United States, impeachment became a very fashionable topic. Since then, I’ve spent a lot of time explaining impeachment with the most important point being that it is a political rather than legal process and decision. While the treason and bribery part in the U.S. Constitution is straightforward, the exact meaning of “high crimes and misdemeanors” isn’t. Despite that, there is consensus among impeachment scholars that it is an institutional mechanism that exists to remove officials who abuse their power from office.
Senate Leader Mitch McConnell certainly knows this because he actually told reporters that “This is a political process. I’m not impartial about this at all.” Yet, Trump’s all-star team of lawyers have concluded their impeachment defense, making a legal argument that amounts to “no crime, no impeachment.” They reject the House impeachment not because Trump didn’t abuse the power of the presidency but because he did not commit an ordinary crime. Therefore, it doesn’t matter if Trump abused his powers by attempting to bully Ukraine into interfering in the 2020 presidential campaign for his own benefit. It doesn’t matter if Republicans allow John Bolton, Trump’s former National Security Advisor to testify and corroborate this. What does is whether or not there was a violation of established law.
“This argument is constitutional nonsense,” said Frank O. Bowman III, a University of Missouri law professor and the author of High Crimes and Misdemeanors, A History of Impeachment for the Age of Trump. “The almost universal consensus — in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since — has been that criminal conduct is not required for impeachment.” One of the Founding Fathers of the United States, Alexander Hamilton, described impeachable offenses in the Federalist Papers as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
This conceptualization of impeachment also extends to Trump’s own attorney general, William P. Barr, who argued that presidents who misuse their authority are subject to impeachment in a memo to the Justice Department and Trump’s legal team when he was still in private practice. And even one of Trump’s defense lawyers, the infamous Harvard law professor Alan Dershowitz argued in 1998 that “if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”
Nevertheless, this no-crime, no impeachment argument was used on behalf of Andrew Johnson during his Senate trial in 1868. Former Supreme Court Justice Benjamin Curtis served as Johnson’s chief attorney told the Senate, “There can be no crime, there can be no misdemeanor, without a law, written or unwritten, express or implied. There must be some law; otherwise there is no crime. My interpretation of it is that the language ‘high crimes and misdemeanors’ means ‘offenses against the laws of the United States.’” The Senate eventually acquitted Johnson, falling short of the necessary two-thirds majority for removal from office by just one vote.
That said, it’s arguable whether Johnson’s acquittal was about the legal argument or rather it was heavily conditioned by public opinion which was very jittery about an impeachment so soon after a civil war. Which again, reiterates the political nature of the process. Johnson’s House impeachment and Senate trial also took place in the winter preceding an election and many argued that it should be left to the people to decide his fate.
Despite being legal superstars—a former Harvard Law Professor, Dershowitz is America’s most famous defense attorney and Ken Starr made his name as special counsel in the Clinton impeachment—Trump’s defense team’s argument is the kind of flimsy thinking we’ve become accustomed to from the Trump administration over these past three years. The kind of thinking doesn’t take into account how damaging it might be to U.S. democracy and its institutions.
It’s also quite possible that there was no other defense to be had. Especially one that doesn’t have to convince inconvincible Democrats but simply give some sort of political and legal cover to Senate Republicans facing tough elections in November. While most Republicans are so terrified of the wrath of Trump, his tweets and his supporters that they don’t dare go against him, others will face elections in more moderate states where voters will ask about the impartiality—or lack thereof—during this Senate trial.
In the end, Trump and Republicans are trying to have it both ways and they’ll probably get away with it. Mitch McConnell will make it so. His Senate trial process is already a political one considering its speed, the rejection of new evidence and witnesses, the lack of transparency, yet the final decision will be based on a trumped-up charge of no crime.
This op-ed was published in Spanish in El Pais.