Trump’s Extortion of Ukraine Is an Impeachable Abuse of Power

Although details remain to be confirmed, the publicly known facts about President Trump’s interactions with Ukraine support a case for impeachment based on abuse of presidential power. Impeachment has always been, first and foremost, a constitutional defense against executive misuse of power. Impeachable abuses have never required proof of crime. Mr. Trump’s behavior is a classic example of abuse of presidential power for personal or political gain, and is therefore properly impeachable.

The Historical Pedigree of Non-Criminal, Abuse of Power as an Impeachable Offense

Since the British invented impeachment in the 14th century as a parliamentary weapon against royal overreach and official misconduct, abuse of power has been on the short list of behaviors meriting impeachment. In Anglo-American practice, the essence of an impeachable “abuse of power” is the illegitimate use of power legitimately bestowed on the individual by virtue of his office.

Impeachments for abuse of power were common in England during the four centuries preceding the American founding.  The most common abuses charged were varying forms of self-enrichment or misuse of authority to gain personal power. Corruption of the financial sort figured in impeachments of the Earl of Suffolk in 1386, Sir Francis Bacon in 1621, the Earl of Strafford in 1641, and many others. But self-aggrandizement of non-monetary kinds also featured largely during this period. The very first impeachment, that of Lord Latimer in 1376, charged that he “notoriously accroached [gathered to himself] royal power.” The Duke of Buckingham, a royal favorite, was impeached in 1626 for using the powers granted him by the king both to enrich himself and to build political power for himself and his family.

The reason old British history matters today is that the American framers consciously modeled the impeachment mechanism with British practice in mind, seeking to vindicate the same principles. Among the features of impeachment they adopted from the mother country was the phrase “high crimes and misdemeanors,” which they knew to be a term of art Parliament had used intermittently since 1386 to describe the kinds of conduct properly impeachable under the unwritten British constitution. In fact, when George Mason proposed adding “high crimes and misdemeanors” to treason and bribery in the definition of impeachable conduct in the U.S. Constitution, he justified the addition in part by reference to the impeachment of Warren Hastings, Governor General of Bengal, that had just begun in England. Adding this phrase, said Mason, was necessary so American impeachment would cover the kinds of offenses charged against Hastings and other British ministers.

There are two key points about Hastings’ charges: First, the allegations against Hastings involved abuses of his powers as Governor General: oppression of native populations under his control, autocratic or deceitful dealings with rulers of Indian principalities, misconduct of local wars, and self-dealing benefitting himself or other British officials.  Second, few if any of the charges were actual indictable crimes. Edmund Burke, the principle parliamentary prosecutor of Hastings, conceded the point. He said of the charges that they “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”

The Philadelphia delegates were also working against a background of recent American practice. Ten of the thirteen new states had written constitutions with impeachment provisions. Virtually all of them included language that extended to official abuse of power, and from 1776-1788, there were several state impeachment controversies involving abuse of power. The most notable was an (aborted) effort to impeach Thomas Jefferson on the ground that he had misused his authority as wartime governor of Virginia.

We need not rely on the Framers’ knowledge of British or prior American practice to prove that they saw abuse of a variety of presidential powers as impeachable. They said so in plain language. At the constitutional convention, James Madison said an impeachment mechanism was necessary because a president “might betray his trust to foreign powers.” At the Virginia ratifying convention Madison noted that a president would be impeachable for abuse of the pardon power or for efforts to secure by trickery ratification of a treaty in the Senate.

In short, the Framers adopted the phrase “high crimes and misdemeanors” both knowing and intending that the term included non-criminal abuses of official power.

What’s more, although federal impeachment has been a rare event in the 230 years since the constitution was ratified, abuse of power is firmly established as impeachable in American practice. Federal judges have repeatedly been impeached (though not always convicted) for varying abuses of their lawful authority, from overtly corrupt rulings to sheer vindictive bullying.

The second article of impeachment approved by the House Judiciary Committee against Richard Nixon charged abuse of power. Its many factual specifications boil down to the contention that Nixon tried to use federal agencies to help his friends, hurt his perceived enemies, and gain political advantage for himself. Conversely, the impeachment of President Bill Clinton illustrates the centrality of misuse of official power to successful presidential impeachment. Clinton surely escaped conviction in the Senate precisely because, however despicable (and illegal) his conduct may have been, it did not involve his powers or duties as president. His acquittal implies that abuse of official power is among the key distinctions between discreditable personal behavior and impeachable misconduct.

When does exercise of legitimate presidential power become impeachable abuse?

Defenders of this (and previous) presidents commonly ask how a president can be impeached for exercising a power he undeniably possesses. This question not only ignores history, but turns the constitutional function of impeachment on its head by ignoring the crucial issue – the manner in which the power was exercised and for what purpose.

The founders included impeachment in the Constitution primarily to respond to misuse by the president of express or implied powers given him elsewhere in the document. To the founders, the main point of impeachment was that there must be a remedy when a president perverts the powers of his office, either for personal or political self-aggrandizement or when the president’s acts threaten the proper distribution of authority among the coordinate branches or otherwise offend the law or fundamental governing norms.

That said, any abuse of power case requires that we distinguish between legitimate and illegitimate uses of presidential power. The most common illegitimate purpose is self-interest. Our constitution confers power on government officials to be employed for the public good, not to advance the private interests of the official.

Although this principle is plain, its application can be difficult in the case of elected officials. When, for example, a president pursues a policy that is popular with voters, he furthers not only a policy objective but his personal interest in reelection. Most of the time, that is entirely appropriate. Indeed, it is an inescapable — and essential — feature of representative government. Presidents and other elected officers are to use their own judgment, but should also always bear in mind the wishes of their constituents.

Because public and personal interests are inevitably commingled in almost any exercise of presidential authority, whenever an impeachable abuse of power is alleged we must consider three points: first, whether the challenged action serves the president’s private interests; second, whether the president’s behavior can be justified by plausibly legitimate reasons of state; and third, whether, even if a plausible public purpose is suggested, the private interest so far outweighs the public one that the president’s action should be deemed a pretext,  and thus an abuse of power.

The Ukrainian incident appears to be an impeachable abuse of power

In his dealings with Ukraine, Mr. Trump may have misused at least three baskets of executive authority: supervision of domestic law enforcement and national security agencies, the commander-in-chief power, and the conduct of foreign policy.

Whatever may be true in autocracies like Vladimir Putin’s Russia, in the United States, an elected official with authority over criminal investigative and prosecutorial agencies may not command those agencies to investigate his political rivals in order to gain an electoral advantage. The second article of impeachment approved by the House Judiciary Committee against Richard Nixon alleged exactly this kind of abuse of power. Nixon used or attempted to use the IRS, the Secret Service, the CIA, the FBI, and his own secret team of White House operatives to get political intelligence on the Democrats generally and dirt on individual “enemies.” When these misdeeds started to leak, Nixon used the powers of his office in an effort to suppress them. In sum, Nixon abused his authority over domestic law enforcement and the national security apparatus to damage political opponents.

The Ukraine transcript suggests that Trump may have done the same by requesting or commanding Attorney General Barr to use the Justice Department to investigate what are, so far as is publicly known,  wholly unsubstantiated allegations against Joe Biden and his son. This point requires further investigation inasmuch as we don’t yet know whether Trump contacted Barr, and if so what Barr did about it.

What cannot be denied, however, is that Trump misused his constitutionally conferred authority to conduct foreign relations and his commander-in-chief power over military matters. To understand the magnitude of the abuse requires placing his behavior in geopolitical context.

Ukraine, which shares a long land and sea border with Russia, gained its independence upon the collapse of the Soviet Union. President Putin, and many other Russians, view the disintegration of the Soviet Union as a tragedy. Putin is passionate to reverse it, at least to the extent of restoring Russian control over Ukraine and other states on the Russian frontier. To that end, Russia has purported to annex Ukrainian territory in the Crimea, in violation of the bedrock rules of the UN Charter that underpin our global order, and is currently engaged in intermittent military operations in the eastern portion of Ukraine where it supports a military separatist movement. In short, Ukraine is under a direct, urgent, and continuing threat of being swallowed by an expansionist Russia. The Russian threat is not merely to Ukraine, but to the overall peace and security of Europe, a matter of sufficient importance that the United States entered two world wars to preserve it.

Ukraine maintains its precarious independence only by virtue of political, military, and economic support provided by the United States and the European Union. American support has included over $1 billion in congressionally authorized defense related aid during the past five years, various forms of intelligence cooperation, and maintaining economic and diplomatic pressure on Russia through sanctions and other means.

In short, legislative and executive branches of the United States have adopted a policy – supported by legal, moral, and geopolitical considerations — of supporting Ukraine’s independence from Russia. The available evidence seems to demonstrate that Mr. Trump conditioned continuance of American support for Ukraine on making the relationship, in his word, “reciprocal.”

As the public has now seen in a transcript of President Trump’s July 25 call with Ukraine’s newly-inaugurated President Zelensky, the reciprocal “favor” Trump demanded was that Ukraine investigate a debunked fringe theory that Ukraine, not Russia, meddled in the 2016 election, and that it investigate Joe Biden, the leading Democratic candidate to oppose Trump in the 2020 election. In short, Trump used two of his core presidential powers, and indeed leveraged the vast geopolitical might of the United States, to extort a country threatened with national extinction for the singular purpose of helping him win re-election.

Mr. Trump and his defenders are busily offering rationalizations for his behavior, most centering on the claim that it is legitimate to employ American power to encourage other countries to root out “corruption,” or to assist American authorities in investigating crimes subject to American jurisdiction. One can admit the principle without conceding that it has any application in the present case.

The contention that Mr. Trump was concerned to any degree about promoting the rule of law in Ukraine is risible. As is the suggestion that his contact with President Zelensky had anything to do with a legitimate U.S. law enforcement effort. The most obvious tell on both points is Rudy Giuliani. A president fighting American crime or foreign corruption doesn’t send his private lawyer abroad to get dirt on political opponents.

In short, the president used the powers of the presidency illegitimately to serve his private interests. The proffered rationale for his conduct is transparently pretextual. Worst of all, Trump’s pursuit of his private interests was directly contrary to long-established, congressionally ratified American foreign policy objectives and, indeed,  endangered the security architecture of western and central Europe.

The norms and immemorial understandings of American constitutionalism make clear that a president may not use the power of his office to request, induce, inveigle, coerce, or extort another country into doing things primarily to benefit the president’s electoral hopes. A president who does so is impeachable on that ground.

 

IMAGE: A page of the unclassified memorandum of U.S. President Donald Trump’s phone call with Ukrainian President Volodymyr Zelensky from July 25, 2019 is shown. The White House released on September 25, 2019 a memorandum of the phone call, one day after Speaker of the House Rep. Nancy Pelosi (D-CA) announced a formal impeachment inquiry due to a whistleblower complaint regarding the call. (Photo Illustration by Alex Wong/Getty Images)

 

About the Author(s)

Frank O. Bowman, III

Frank O. Bowman, III, is the Floyd R. Gibson Missouri Endowed Professor of Law at the University of Missouri School of Law and Visiting Professor of Law at Georgetown Law Center. He is a former federal and state prosecutor. His most recent book is High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump (Cambridge University Press 2019). Follow him on Twitter (@FOBowman3).