Democrats are echoing the worst impeachment in American history — the impeachment of President Andrew Johnson in 1868 — by drafting an article of impeachment that accuses President Donald Trump of “abuse of power.”
The Washington Post reported Monday evening that, barely hours after the first and last hearing in the House Judiciary Committee to consider the evidence against the president, with no fact witnesses, Democrats were preparing two articles of impeachment. The first concerned “abuse of power,” and the second concerned “obstruction of justice.” (Articles alleging “bribery” and “obstruction of justice” were apparently dropped.)
The argument for “abuse of power” is flimsy and draws on the worst possible precedent. Left-wing legal scholar Cass Sunstein, a former Obama administration official, actually argued in his 2017 book Impeachment: A Citizen’s Guide that “abuse of power” is an impossibly broad standard: “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.” The House Judiciary Committee staff andrew johnson pollak breitbart, prepared entirely by Democrats, cites Sunstein’s book but ignores that passage. Similarly, the staff report ignored liberal legal scholar Jonathan Turley, who testified before the committee last week that its “abuse of power” standard would apply to every president.
Worse, Democrats on the Judiciary Committee actually cite the impeachment of Andrew Johnson — which is widely regarded as a mistake — in arguing that Congress ought to impeach presidents on the basis of “illegitimate motives,” even if their actions are legally permissible. The report states:
Rather than directly target President Johnson’s faithless execution of the laws, and his illegitimate motives in wielding power, the House resorted to charges based on the Tenure of Office Act. But in reality, “the shaky claims prosecuted by [the House] obscured a far more compelling basis for removal: that Johnson’s virulent use of executive power to sabotage Reconstruction posed a mortal threat to the nation—and to civil and political rights—as reconstituted after the Civil War … [T]he country was in the throes of a second founding. Yet Johnson abused the powers of his office and violated the Constitution to preserve institutions and practices that had nearly killed the Union. He could not be allowed to salt the earth as the Republic made itself anew.” Viewed from that perspective, the case for impeaching President Johnson rested on his use of power with illegitimate motives.
Johnson was impeached by the House by a runaway Republican majority and acquitted in the Senate by one vote.
The Johnson precedent has been a cautionary tale for over 150 years, a prime example of what Congress ought not to do. Yet Democrats, with their forthcoming article of impeachment on “abuse of power,” are invoking the Johnson precedent as a positive inspiration.
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.