Political Self-Interest and the Impeachable Offense: A Reply to Professor Bobbitt

Professor Phillip Bobbitt harbors no doubt that President Donald Trump committed an impeachable “high crime of the highest constitutional importance” when, to induce Ukraine to help him injure “the reputation of a political adversary,” he withheld aid that Congress had appropriated for that country. But Bobbitt also calls for stating with care the case for this “abuse of power.” He does not subscribe to the general proposition, such as one offered by Professor Noah Feldman, that a president may not “pressure a foreign government…to serve [a] personal interest and the interest in getting reelected.” This, Bobbitt says, “can’t be right.” Presidents routinely build politics into the substance and timing of their policy stances, and he cites as an example the pageantry of overseas travel that produces photo ops for campaign materials. Bobbitt’s concern is to distinguish the “ordinary bit of politics” from “the subversion of our most important constitutional structures.”

On Bobbitt’s view, what’s damning in Trump’s case is that, as the Government Accounting Office found, Trump violated the law in refusing to release the aid. Bobbitt writes that the violation GAO identified is a “game changer of sorts” in understanding the precise grounds for impeachment: Trump’s disregard of the law undermined the “constitutional law of congressional appropriations.” Bobbitt’s statement of the case against Trump is powerful, well stated, and correct. It also raises an important question: Had GAO not found a violation of the law, would the case against Trump have been fatally weakened? Would the case be less persuasive if, as some argue, only so much weight can be placed on the GAO finding, which is not a binding or final say on the legal question?

No, I don’t believe so. It is possible, in fact imperative, to identify egregious cases of political self-interestedness that constitute “abuse of power” warranting impeachment and removal—even in the absence of a violation of law. Bobbitt’s argument fruitfully compels engagement with the question of where to draw the line between the “ordinary bit of politics” and an impeachable offense based on politically self-interested dereliction of constitutional duty.

The relevant considerations include:

Context and subject matter: evidence of political self-interestedness in the conduct of national security or foreign affairs demands heightened attention. Given the president’s extensive powers to deploy U.S. forces, or to strengthen or weaken military defenses and readiness of allies, or fulfill or undermine major U.S. treaty and other commitments, the abuse of this authority to achieve self-interested political purposes is especially dangerous.

Questions of degree and of kind: Not all politically motivated official actions are the same. There are differences in degree, with some actions falling to the more benign or tolerable side of “ordinary politics;” in this constitutional context, major differences in degree may come to be differences in kind.

A trip overseas for the sole or primary purpose of extracting domestic political benefit may be a poor use of the presidential time if the trip yields no obvious policy advances. But this is a universe apart from conditioning desperately needed aid to a foreign ally on a president’s demand for help in damaging a domestic political rival. A trade agreement whose signing is timed for election year impact won’t rattle, let alone surprise, many observers. If, however, it is a wholly cynical deal consciously constructed simply to reward campaign donors who help to write it, the “bit of politics” involved may be something more than “ordinary.”

Compromising institutional processes: Presidents can run the government pretty much as they please: they can ignore their cabinets and rely for advice on friends and family members. They can refuse policy briefings from experts and officials with the relevant responsibilities and inform themselves only by watching cable TV. Yet what remains relevant to the question of abuse of power is how they pursue their personal political self-interest on a matter of the most serious public responsibility. To the extent that they bypass official government channels, working instead with private political allies outside the government in areas of exquisite policy sensitivity, the case for impeachment is stronger. These irregularities suggest that politics did not merely influence policy choices but predominated, and the use of these back channels serves the purpose of keeping secret what all involved know would not survive public (or well justified congressional) scrutiny.

A president whose conduct appears by these measures impeachable might also violate the law. In fact, it seems almost inevitable in the case of the worst forms of abuse of power. Statutes and rules will often get in the way of what the corrupt politician wishes to accomplish and how he or she hopes to accomplish it. Bobbitt is right that the legal violation in the Trump case is material and collapses the president’s “everything was perfect” defense. The GAO finding and the more general fact of the Impoundment Act violation is consequential, to be sure. But remove that violation from the analysis, and the conduct alleged against Trump remains impeachable abuse of power. It all depends on the facts of what he did—how far he went— to subordinate his constitutional responsibilities to his personal, political self-interest.

Those who fear the runaway expansion of impeachment as a political weapon worry that the approach involved in a case-by-case factual inquiry cannot work, because any incendiary political conflict will quickly move to calls for impeachment. They would like to lay down hard and fast doctrinal lines. Alan Dershowitz is taking this idea to extremes by arguing on behalf of the president that only a crime, and then only certain kinds of crimes, may justify impeachment and conviction. There is no such path out of factual complexities; there is no evidence that the Framers intended to make easy the judgment of presidential misconduct. The inescapable, fact-bound question in impeachment is whether, by having taken actions of a character profoundly incompatible with the office, a president may no longer be entrusted with it.

Consider, for example, the red lines that the Senate sets for its own members. The Senate that is currently trying this president has attempted to draw the very distinction between the “ordinary bit of politics” and corrupt politics of the kind that would warrant discipline and even expulsion. Its rules prohibit, for example, interventions with regulatory agencies to block or affect an administrative decision, if the Senator is motivated by the desire to reward a political supporter. Rule 43 bars a “decision to provide assistance [to any individual or group] … on the basis of contributions or services, or promises of contributions or services, to the Member’s political campaigns or to other organizations in which the Member has a political, personal, or financial interest.”

In the case of Senator Alan Cranston of California, whom the Senate censured for unethical conduct, the Senate Ethics Committee elaborated on the distinction between ordinary and condemnable self-interested conduct. The Senate found that Cranston had “substantially linked” his political fundraising to legislative action. Even if all politicians raise money on the strength of, and with reference to, their performance in office, the Senate found that Cranston had connected the two too closely. The “substantial linkage” the Senate found in Cranston’s case contravened the “cardinal principle” that senators should make decisions on the merits of policy, “without regard to whether [the beneficiary] has contributed, or promised to contribute, to the senators’ campaigns or other causes in which he or she has a financial, political or personal interest.”

Under the Senate’s rules, the challenge for the member is striking an acceptable balance in using the influence of the office to enhance their fundraising and reelection prospects. Capitalizing on incumbency is smart politics, but the abuse of power is always a risk. The politician whose grasp on the ethical issues is shaky may develop a reputation for shadiness or playing it too close to the line. Then there are the politicians who are indifferent to the ethical demand: They are corrupt. And in the United States Senate, a politician who has stepped over the line that distinguishes ordinary politics from corruption is subject to discipline, including removal from office in the most serious cases.

When a member of Congress is found to have acted in manner so profoundly incompatible with their office, disciplinary action that may be deadly to their political standing—and, in the worst case, expulsion from office—do not constitute either interfering in the next election or “undoing” the last one. These are remedies required to address abuses of power, especially those committed to tilt the politically playing field in the elected official’s favor.

The same analogy should inform the conversation about the difference between ordinary and corrupt politics in the context of presidential impeachment. Setting aside any statutory violation such as the Impoundment Act, a strong and sufficient case for impeachment would certainly rest on any showing that a president put personal and political self- interest front and center in the decision making of matters of vital importance to the conduct of his office and the national welfare. The factors described previously—context and subject matter, questions of degree and kind, and the compromising of institutional processes—help guide and discipline the analysis. The case for an abuse of power may be clinched by the finding of a serious violation of law. It does not depend on it.

Image: Chip Somodevilla/Getty

 

About the Author(s)

Bob Bauer

Former White House Counsel to President Obama (2010-2011). Professor of Practice and Distinguished Scholar in Residence at New York University School of Law.