The Dem’s have no statutory basis to demand Trump’s impeachment — and Trump has valid defenses to charges that his Ukraine dealings were an abuse of power.
This will be a two part post. Part I deals with the law relating to impeachment. Part II will deal with how the Senate should handle the trial of any Articles of Impeachment that come out of the House’s Star Chamber impeachment inquiry.
Let’s assume for argument’s sake that the Democrats running the House’s Star Chamber impeachment inquiry do in fact come up with Articles of Impeachment. What will they be? And will the President have any affirmative defenses?
No less a legal and historical scholar than Maxine Waters claimed in 2017:
Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.
If true, that would leave the President with no defense other than that the Democrats are wrong on the facts. Thankfully, Waters is wrong. To the contrary, the parameters for impeachment are defined at law and, because of that, the Democrats face insurmountable obstacles in impeaching Donald Trump for any and all acts related to his July 25 phone call with President Zelenksyy of Ukraine.
First, the House cannot validly impeach Trump for using the same powers other presidents traditionally wielded. Thus, if it has been custom and practice for presidents to negotiate using foreign aid as a tool, then Trump’s doing so is similarly beyond a valid impeachment charge.
Second, the House cannot validly impeach Trump for asking a foreign power to aid him in the legitimate exercise of his constitutional authority. Leaving aside whether Trump might personally benefit from the investigation, no American citizen (even, theoretically, Hillary Clinton) is above the law. The fact that an election looms does not change that fact. In other words, Democrats cannot avoid criminal culpability by insisting that investigations are illegal as an election draws near.