Yesterday, in response to a detailed 111-page brief outlining the House of Representatives’ case for impeachment, President Trump’s legal time filed a six-page response. It is notable primarily for advancing an audacious and highly dangerous constitutional claim: that a president cannot be impeached for any abuse of power.
This argument been been floating around Republican circles for weeks, and received the endorsements of such luminaries as Matt Whitaker and Alan Dershowitz. But two previous letters by Trump denouncing impeachment — while deranged, incoherent, and dripping with monarchial impunity — have not gone so far as to advance this novel argument.
According to its reasoning, a president can only be impeached for a literal criminal violation, the kind of crime for which you or I could be hauled off to the police station. He cannot be impeached for abusing his power. The first article of impeachment “fails on its face to state an impeachable offense,” his lawyers write. “It alleges no crimes at all, let alone high Crimes and Misdemeanors, as required by the Constitution. In fact, it alleges no violation of law whatsoever.” Trump’s lawyers do deny the facts laid out in the indictment, but they argue that even if Trump was guilty of every action of which he was charged, he cannot be impeached for it.
The first problem with this argument is that it rests on incorrect facts. At the time President Trump was withholding military aid to Ukraine, officials inside his administration worried that he was breaking the law by refusing to allocate spending that had been passed by Congress. But the legality had not been officially settled at the time, which is what allowed Trump’s supporters to insist that he had not broken any laws. But last Thursday, the Government Accountability Office formally ruled that withholding the aid did violate the law.
This ruling doesn’t mean Trump is a criminal who needs to be impeached. But given the weight his supporters have placed on the lack of a formal legal violation, it is quite significant. When you rest your defense upon a technicality, you’re in trouble when the technicality turns out to be technically wrong.
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