As the House Judiciary Committee began debating two newly unveiled impeachment articles Wednesday night and Thursday morning, Republicans noted over and over again that those impeachment articles include no accusation of a specific, statutory crime. House Democrats issued two articles this week — one on abuse of power and one on obstruction of Congress. But they opted not to accuse him of “bribery,” which is specifically mentioned in the Constitution as an impeachable offense, and also not to accuse him of obstruction of justice related to the Russia investigation, after considering both.
As I argued Tuesday, they apparently decided that in part because they didn’t want to get bogged down in satisfying statutory requirements for those two crimes. But as I also noted, it invited Republicans to say there is no crime here.
Which they have now set about doing. On Thursday morning, they repeatedly noted that Trump isn’t even being accused of a specific crime — often by invoking President Bill Clinton’s impeachment.
“The biggest difference in the Clinton impeachment and this one is that President Clinton committed a crime: perjury,” Rep. Steve Chabot (R-Ohio) said. “This president isn’t even accused of committing a crime. The Constitution is pretty clear on what constitutes an impeachable offense: treason, bribery and other high crimes and misdemeanors. It’s not treason, bribery and other high crimes and misdemeanors or whatever else."
He added: “In the Nixon and Clinton impeachment, abuse of power was a tacked-on charge — far less important in those cases than the actual high crimes charged against both of them.”
Rep. F. James Sensenbrenner Jr. (R-Wis.) echoed the argument.
“The important thing is that Bill Clinton lied to a grand jury; that is a crime,” he said. “The article of impeachment that passed the House accused Bill Clinton of lying to a grand jury, a crime and something that obstructs the ability of the courts to get to the truth. This is not what is happening here. Big difference.”
The first thing we can say is that both of them have a point when it comes to the Clinton comparison. The House actually failed to impeach Clinton on an abuse-of-power article — and decidedly so, 285 to 148 — in favor of passing two articles featuring statutory crimes: perjury and obstruction of justice. So the Democrats’ decision to focus on the more nebulous concepts of abuse of power and obstruction of Congress is something of a break from the most recent precedent.
The second, though, is that you don’t need a crime to impeach a president. Even the Republican witness at least week’s impeachment hearing, George Washington University professor Jonathan Turley, granted as much in a recent Wall Street Journal column. He wrote, “There is much that is worthy of investigation in the Ukraine scandal, and it is true that impeachment doesn’t require a crime.”
But Turley also emphasized that having a statutory crime was preferable, and it’s difficult to dispute that. “High crimes and misdemeanors” doesn’t technically mean actual crimes, but having the president’s conduct rise to the level of criminality would seem to lend urgency to the need to remove them from office and help rally public support.
And Democrats could have done that. In addition to accusing Trump of bribery or obstruction of justice — which, unlike obstruction of Congress, is a prosecutable offense — they could have said:
- His dealings with Ukraine amounted to a campaign finance violation because he was soliciting something of value from a foreign government.
- His urging China to investigate the Bidens and/or Russia to find Hillary Clinton’s emails also was illegal.
- His hush-money payoffs to Stormy Daniels and/or Karen McDougal were campaign finance violations. (Michael Cohen pleaded guilty to both as campaign finance violations, and Trump was implicated as “Individual-1.")
Including all of these, of course, would carry its own risks. On the first two, you’d have to prove that these things would be something of value, which isn’t easy. And on the third, Trump hasn’t directly been accused of criminal activity in the case (though that may be because he’s a sitting president, and the Justice Department doesn’t indict sitting presidents). I also highlighted the problems with potential bribery and obstruction-of-justice articles Tuesday, noting that the Justice Department had, however controversially, already cleared him of the latter.
But by spurning these things, Democrats have essentially forced themselves to argue that the crimes are implied or that they are worse than statutory ones, which is its own rhetorical challenge.
Rep. Eric Swalwell (D-Calif.) attempted to do that Thursday, while responding to Chabot’s argument.
“There are no crimes here? That is the defense my colleagues across the aisle are putting forward?” Swalwell said. “How about the highest crime: One who holds public office could commit a crime against our Constitution? After all, the Constitution is the highest, most supreme law of the land.”
Swalwell then outlined two statutory crimes that he said Trump has committed: bribery and honest-services fraud.
“However, all of these conversations about statutory crimes are moot because the president of the United States refuses to allow his own Department of Justice to indict him,” he said. “So the president may be charged with crimes statutorily one day, but that’s not what we’re doing here on this day.”
Rep. Hank Johnson (D-Ga.) also made the case that this might have been bribery, but also that statutory crimes don’t matter.
“Bribery was not a crime" when the Constitution was drafted, Johnson said. “There was no criminal code when the framers passed the Constitution, but they said bribery in there. And what bribery meant was, I’m offering you something. If you do something for me, I’ll give you this.
“That’s what we had in this case.”
The obvious question from there is, if this was bribery, why not call it that in the articles? It’s true that Democrats might have uncovered more if the Trump administration was more cooperative — or cooperative at all — with the House’s investigation. But they made a decision to press forward with what they have. Removal from office was always an extreme long shot because the bar is so high in the Senate. But the danger is that this effort looks like an attempt to take him down based upon inference and thin evidence of Trump’s personal culpability.
Expect to hear plenty more about the lack of any criminal accusation.