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To gain more insight, CNN Opinion has asked two prominent Washington legal experts to go back and forth in a series of email exchanges with their thoughts on the decision to pursue these particular articles of impeachment.
Robert Ray served as the independent counsel from 1999 to 2002, during which he led the investigation into the Whitewater controversy. Michael Zeldin served as deputy independent counsel, and later independent counsel, in the investigation into allegations that the administration of George H. W. Bush violated the privacy rights of candidate Bill Clinton in the 1992 presidential campaign.
We asked Ray and Zeldin to assess the Democrats’ case.
The point being that House Democrats, in this impeachment inquiry, have jettisoned treason, bribery, extortion, and foreign campaign contributions as a predicate, under law, for impeachment. Instead, we are left with abusive conduct and an interbranch dispute over witnesses and documents. The bar for impeachment has been lowered in an unprecedented way.
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President Trump’s alleged conduct in soliciting Ukraine to investigate his political rival and then withholding military aid until such investigation is publicly announced, violates the public trust and renders his continuation in office a danger to the Constitution. His obstruction of Congress in their investigation of his actions compounds the offense.
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Ray: I appreciate Michael’s acknowledgment that whether the Constitution requires criminality as a prerequisite for impeachment is, at minimum, a debatable point. I have argued for some time — indeed prior to the July 25th call between President Trump and Ukrainian President Zelensky — that a well-founded article of impeachment must allege both that a crime has been committed and that such crime also constitutes an abuse of power.
That said, I find it constitutionally awkward to be arguing on the one hand, as many have — including me when it comes to presidential misconduct — that no president is above the law, and then on the other hand, that this President should be impeached without an allegation contained in an article of impeachment that he actually violated the law
It seems like failing to allege criminality weakens the case for impeachment. And it sets a dangerous precedent for future impeachments by a majority of the House of Representatives that any abuse of power will do, irrespective of the rule of law. I don’t see how that would, or should, be in the best interests of the country.
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Zeldin: Robert is correct that commission of crimes can strengthen a case for impeachment, as we saw in both the Nixon and Clinton impeachments. In this case, both articles of impeachment essentially allege criminal conduct.
The President’s wholesale refusal to cooperate with either witness testimony or document production requests transcends Robert’s view that this aspect of the impeachment is merely an “interbranch dispute over witnesses and documents.” It is tantamount to criminal obstruction.
While a criminal statute is not cited in either article of impeachment — which it need not be — the articles allege conduct that appears to meet Robert’s underlying criminal conduct test. As such, the articles are consistent with past practices and do not set a dangerous precedent.
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Ray: I don’t know. How hard would it have been to have added the words to the first Article of Impeachment, “… thereby constituting the crime of bribery, in violation of law.” And, as to the second Article of Impeachment, “… thereby constituting obstruction of justice and the lawful functions of Congress, in violation of law”?
I am left to assume that there must be a reason why crimes were not alleged: the proof is not there and, more importantly, the elements of those offenses cannot be established.
As historian Jon Meacham wrote in reviewing the impeachment of President Andrew Johnson in the 2018 book “Impeachment: An American History,” there are risks with drafting articles that don’t allege crimes:
“To deploy [the weapon of impeachment] in times of great political passion but without a clear violation of law, however, risked (and risks) pushing the American system in a parliamentary direction — a development that might have its virtues but which would be a definitive break from the original intent and the organic evolution of the constitutional order… Should he therefore have been impeached and removed from office? The verdict in his own time was no — the decision to push him from the presidential chair should, Congress decided, lie with the voters rather than with lawmakers.”
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Zeldin: The decision not to include specific words from modern criminal statutes, I assume, was intended to avoid having to engage in the debate that Robert’s suggestion invites: namely, whether “elements of those [statutory] offenses [can] be established.”
The impeachment of Andrew Johnson derived from a bitter policy dispute between Johnson, a Democrat, and the Republican-controlled Congress over post-Civil War reconstruction policies. This dispute, as Robert and Jon Meacham correctly point out, should have been resolved at the ballot box. Impeachment was a pretext to remove him from office.
To be sure, the prosecution of impeachments, as Hamilton wrote in Federalist 65, “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” The process must, therefore, be deployed sparingly and with just cause. The articles of impeachment returned against President Trump meet this test.
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