Pollak: ‘Abuse of Power’ a Shaky Ground for Impeachment

Democrats’ articles of impeachment against President Donald Trump allege “abuse of power” and “obstruction of Congress” — the two weakest possible charges among the many the House had been considering.

The term “abuse of power” does not appear in the Constitution’s Impeachment Clause, which specifies that Congress’s power of impeachment covers “Treason, Bribery, or other High Crimes and Misdemeanors.”

That is not simply a conservative, originalist position: many liberal scholars agree.

Harvard Law School professor emeritus Alan Dershowitz, author of the recent Case Against Impeaching Trump, argues in his that “abuse of power” is never impeachable — at least not without an underlying crime.

In this case, there is none.

Constitutional law expert Jonathan Turley testified before the Judiciary Committee last week that while he agreed that a president could be impeached for abuse of power, the Trump case did not qualify, even if his Ukraine phone call was “anything but perfect. ”

In a back-and-forth with Rep. Ken Buck (R-CO), Turley made the point that under the loose “abuse of power” standard applied by the three Democrat-chosen panelists, which measured “abuse of power” by “political benefit,” every president in U.S. history could be impeached — including President Obama himself:

Buck: So let me go with a few examples, and see if you agree with me. Lyndon Johnson. Directed the Central Intelligence Agency to place a spy in Barry Goldwater’s campaign. That spy got advance copies of speeches and other strategy. Delivered that to the Johnson campaign. Would that be that impeachable conduct, according to the other panelists?

Turley: Well, it sweeps pretty broadly, so I assume so.

Buck: How about when President Johnson put a wiretap on Goldwater’s campaign plane? Would that be for political benefit?

Turley: Well, I can’t exclude anything under that definition.

Buck: Okay. Well, I’m going to go with a few other presidents, we’ll see where we go. Congressman [Ted] Deutch [D-FL] informed us that FDR put country first. Now, Franklin Delano Roosevelt, when he was president, directed the IRS to conduct audits of his political enemies — namely Huey Long, William Randolph Hearst, Hamilton Fish, Father Coughlin. Would that be an abuse of power for political benefit according to the other panelists? Would that be impeachable conduct?

Turley: I think it all would be subsumed into it.

Buck: How about when President [John F.] Kennedy directed his brother, [Attorney General] Robert Kennedy to deport one of his mistresses as an East German spy? Would that qualify as impeachable conduct?

Turley: Once again, I can’t exclude it.

Buck: And how about when he directed the FBI to use wiretaps on congressional staffers who opposed him politically? Would that be impeachable conduct?

Turley: It would seem to be falling within it.

Buck: And let’s go to Barack Obama. When Barack Obama directed, or made a finding that the Senate was in recess, and appointed people to the National Labor Relations Board, and lost 9-0 — Ruth Bader Ginsburg voted against the president on this issue — would that be an abuse of power?

Turley: I’m afraid you’d have to direct that to [the] others, but I don’t see exclusions under their definition.

Buck: Okay. And how about when the president [Obama] directed his national security adviser and the secretary of state to lie to the American people about whether the ambassador to Libya was murdered as a result of a video, or was murdered as a result of a terrorist act? Would that be an abuse of power for political benefit, 17 days before the next election?

Turley: Well, not according to my definition. The others will have to respond to their own.

Buck: Well, you’ve heard their definition.

Turley: I can’t —

Buck: You can apply those facts to their definition.

Turley: I have a hard time excluding anything.

Buck: How about when Abraham Lincoln arrested legislators in Maryland so that they wouldn’t convene to secede from the Union? And Virginia already had seceded, so it would have placed Washington, DC, the nation’s capital, in the middle of the rebellion? Would that have been an abuse of power for political benefit?

Turley: Well, it could be under that definition.

Buck: And you mentioned George Washington a little while ago, as perhaps having met the standard of impeachment for your other panelists. In fact, let me ask you something, Professor Turley. Can you name a single president in the history of the United States — save President [William Henry] Harrison, who died 32 days after his inauguration — that would not have met the standard of impeachment for our friends here?

Turley: I would hope to God James Madison would escape. [Laughter] Otherwise, a lifetime of academic work would be shredded. But once again I can’t exclude many of these acts.

Buck: Isn’t what you and I and many others are afraid of, is that the standard that your friends to the right of you — and not politically, but to the right of you sitting on there — that your friends have decided that the bar is so low that when we have a Democrat president in office and a Republican House and a Republican Senate, we’re going to be going through this whole scenario again in a way that really puts the country at risk?

Turley: Well, when your [Democrats’] graphic says, in your “ABCs,” that your “B” is “betrayal of national interests,” I would simply ask, do you really want that to be your standard?

Legal scholar Cass Sunstein, a former Obama administration official and an intellectual leader on the left, published a crucial book, Impeachment: A Citizen’s Guide, in 2017. The book was cited by the House Judiciary Committee in its recent (Democrat) staff report, “Constitutional Grounds for Presidential Impeachment.”

Of “obstruction of Congress,” Sunstein said that a president cannot be impeached simply for resisting subpoenas. A mere “conflict between the branches” of government, he declared, is “no legitimate basis for impeachment.” (p. 92)

Sunstein elaborated: “Presidents should cooperate with legitimate investigations, but it is not a high crime or misdemeanor to refuse to cooperate with a congressional investigation into an offense that is not independently impeachable. Congress cannot gin up an impeachable offense by investigating an offense that is not impeachable, and then encountering presidential resistance.” (pp. 92-93)

Democrats would counter, in this case, that “abuse of power” is indeed an impeachable offense.

Sunstein would probably agree in principle — but in 2017, he noted that almost every president had exceeded his powers in some way: “Almost every American president has, on more than one occasion, passed the bounds of his power, in the sense that his administration has done something that it is not lawfully entitled to do.” (p. 60)

For example, Sunstein noted, President Franklin Delano Roosevelt “unlawfully sent arms to England to help that nation defend itself against Hitler’s aggression.” (p. 60)

Sunstein noted that Alexander Hamilton described an impeachable offense in Federalist No. 65 as “the abuse or violation of some public trust.” Impeachment was understood to cover “terrible abuses of power” (emphasis added), not “mistakes of judgment or of controversial political choices.”

That leaves some room for interpretation. But in the context of past administrations, the “abuse of power” alleged against Trump is miniscule.

And many Trump supporters argue further that Trump was not abusing his powers, but fulfilling them. If there was any basis for investigating former Vice President Joe Biden’s conflict of interest in Ukraine — where his son, Hunter, held a highly-paid position on the board of Burisma, the country’s largest gas company — then Trump did nothing wrong.

In the end, “abuse of power” — unless “terrible” — is too weak and subjective a standard by itself for impeaching a president — if it can be said to be a valid standard for impeachment at all.

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.