House Democrats abandon crimes in Trump impeachment articles

Strategy focuses on constitutional, rather than criminal, violations

Speaker Nancy Pelosi and House Judiciary Chairman Jerrold Nadler speak at a news conference Tuesday to announce articles of impeachment against President Donald Trump. (Bill Clark/CQ Roll Call)
Speaker Nancy Pelosi and House Judiciary Chairman Jerrold Nadler speak at a news conference Tuesday to announce articles of impeachment against President Donald Trump. (Bill Clark/CQ Roll Call)
Posted December 11, 2019 at 6:00am

House Democrats spoke for months about how investigations had established crimes that President Donald Trump committed, but on Tuesday they did not specifically include those allegations in articles of impeachment under the constitutional standard of “high crimes and misdemeanors.”

The two articles of impeachment Democrats filed — abuse of power and obstruction of Congress — stayed away from detailing where Trump might have broken the law with his dealings with Ukraine or interactions with the special counsel probe into Russian interference with the 2016 election.

The strategy to focus on constitutional violations rather than the criminal violations they had discussed — such as bribery, extortion, campaign finance or obstruction of justice — highlights how Democrats contend that a president does not have to commit a crime to be impeached.

Democrats on the House Judiciary Committee say the “abuse of power” article is the highest crime against the Constitution and can include crimes such as bribery.

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“We didn’t need to name specific crimes in the articles because what we did encompasses all of that,” Pennsylvania Rep. Mary Gay Scanlon said.

“We don’t prosecute crimes in Congress, we protect the Constitution,” California Rep. Eric Swalwell added. 

But the move also plays into criticisms from Republicans and their allies that Democrats are pursuing a political impeachment and didn’t uncover enough evidence to convince them the president needed to be removed from office.

“Where is the crime? That’s what we’ve been asking the whole time,” said Louisiana Republican Mike Johnson, a House Judiciary member. “I think it’s an indication that they’ve committed political malpractice. I think they walked themselves out on a plank that they can’t return from.”

Former Harvard Law School professor Alan Dershowitz, one of Trump’s most vocal defenders, wrote in an op-ed for The Hill on Tuesday that the two articles Democrats settled on are “so vague and open ended that they could be applied in partisan fashion by a majority of the House against almost any president.”

[Trump calls Pelosi ‘incompetent’ for launching impeachment inquiry]

“Neither are high or low crimes or misdemeanors. Neither are mentioned in the Constitution,” Dershowitz wrote.

Democrats most notably saw evidence that Trump committed a crime of obstruction of justice in former special counsel Robert S. Mueller III’s investigation, particularly in an episode where the president ordered former White House counsel Don McGahn to create a false record.

“The facts of what occurred are established by clear evidence and are supported by both documentary records and the testimony of multiple White House officials,” Susan Hennessey, a senior fellow in national security law at the Brookings Institution, wrote Monday on Lawfare. “It is also an example of obstruction that is unambiguous on the law — it presents a clear criminal violation.”

Democrats on the Judiciary Committee referenced the Mueller investigation during impeachment hearings, hinting that the allegations from the report could form the basis for an article of impeachment.

But that was not specifically mentioned in the impeachment articles. Laurence Tribe, a liberal law professor at Harvard University who reportedly discussed impeachment with Democrats, said the move shows the House wants to limit its charges to the clearest constitutional crimes and avoid “a distracting legalistic fight over labels.”

When the Ukraine allegations first became public in September, the Justice Department announced it did not find a reason to start a criminal investigation into Trump’s phone call when he asked Ukrainian President Volodymyr Zelenskiy to “do us a favor” and announce the opening of a potential corruption investigation connected to one of Trump’s main political rivals, former Vice President Joe Biden.

Some Democrats argued at the time that it violated a criminal campaign finance law against receiving a thing of value from a foreign government. “The call readout is damning evidence of criminality and represents Exhibit A that the president abused power,” New York Rep. Hakeem Jeffries, a Judiciary Committee member and chairman of the House Democratic Caucus, said at the time.

More recently, Speaker Nancy Pelosi last month used the word “bribery”— which is mentioned in the Constitution as a reason for impeachment — to describe how Trump withheld military aid to Ukraine to solicit interference in the 2020 presidential election.

When she did, it appeared as a major hint of a new direction in the impeachment probe. And the California Democrat mentioned bribery last week when she announced she had tasked the House Judiciary Committee with writing articles of impeachment. It did not make the cut as an article of impeachment.

There are issues with applying bribery to Trump’s behavior and that could have given Republican senators a way to justify a vote not to convict, said Frank O. Bowman III, a law professor at the University of Missouri and author of “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.”

“If asked to defend Trump on abuse of power, I couldn’t do it in good faith,” Bowman tweeted. “But I could advance plausible legal defense to bribery.”

When introducing the two articles of impeachment Tuesday morning, House Intelligence Chairman Adam B. Schiff said that Democrats could not let Trump’s behavior stand.

“To do nothing would make ourselves complicit in the president’s abuse of his high office, the public trust and our national security,” the California Democrat said.

Former Missouri GOP Rep. Tom Coleman said that failing to have an obstruction of justice article of impeachment also essentially condones Trump’s behavior.

“To condone obstruction is to encourage more of it,” Coleman tweeted. “To encourage obstruction is to give up on the rule of law and our democracy. To give up on the rule of law and democracy invites dictatorship.”

North Carolina GOP Rep. Mark Meadows said that the decision was probably political. “I think it’s a narrowly focused impeachment process designed to make sure that you get broad support [in] the Democratic Caucus, and I think it will accomplish that purpose,” he said.

New York Rep. John Katko, one of the few Republicans left in the House who represents a district Hillary Clinton won in 2016, said he hasn’t decided how to vote on the articles of impeachment but raised concerns that no criminal conduct was mentioned.

“You heard all about bribery, quid pro quo, and extortion; those are criminal conduct; none of that’s been alleged,” Katko said.

Lindsey McPherson contributed to this report.

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