Mislabeling what the president has done could make impeachment more difficult to achieve.
Reports that President Donald Trump pressured Ukrainian President Volodymyr Zelensky to investigate the son of Democratic presidential candidate Joe Biden has prompted a flurry of speculation Trump, by withholding military aid, has committed bribery or extortion.
This is wrong and even counterproductive to efforts to hold Trump accountable.
If what Trump is accused of doing is true, it is a kind of corrupt conduct that the criminal system is not equipped to handle. Labeling his behavior with criminal terms such as bribery and extortion not only misunderstands the statutory language, it gives Trump and his supporters ammunition with which to defend themselves, making impeachment—the proper constitutional remedy for presidential corruption—harder to achieve.
It’s easy to see why Trump’s alleged conduct has generated outrage and why lay people have rushed to describe it as categorically criminal. Using presidential power to withhold aid to a nation that was recently invaded by Russia unless its investigates your political rival sounds like the definition of a criminal quid pro quo. The possibility that Trump pressured another nation to interfere in the next presidential election on his behalf—not long after the completion of a multiyear investigation into interference in the 2016 presidential election by Russia on his behalf—is jaw-dropping.
But the impulse to label this as a potential crime, as many respected former prosecutors and legal analysts have done, is flawed legally and even strategically. Even if true, this is not a case that would end up in a criminal proceeding even if Trump were no longer in office.
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But both of these statutes contain at least some of the problems presented by the bribery and extortion statutes. Courts won’t send presidents to prison for cajoling foreign governments to do things, even if that involves horse trading an official act by our government in exchange for an official act by someone else’s.
What Trump is alleged to have done is not a garden variety crime; it’s worse. It involved misusing $250 million in aid appropriated by Congress for his benefit—the kind of gross misconduct that easily clears the bar of high crimes and misdemeanors set by the Constitution when impeaching a president. Which means the best way to hold Trump accountable for that misconduct isn’t a criminal trial; it’s for Congress to impeach him.
Pursuing criminal cases that won’t stand legal scrutiny, or arguing that Trump has violated a criminal statute, risks undermining that goal.
First, it gives the false impression that this is something the criminal justice system can deal with. But the criminal system is not built to handle misconduct by a president who is acting corruptly through the use of his or her immense constitutional powers in this manner.
Second, it suggests that if critics can point out that it is not really bribery or extortion, then it is not a huge problem, which is not true. This is already happening, as allies of the president assert that there was no explicit quid pro quo.
Third, it may give the public a false impression about what happened. Impeachment in many respects is a political act, and that means Congress needs public support to pursue it. Anything that confuses or fails to convince the public is therefore counterproductive.
Finally, it understates the magnitude of the alleged misconduct. Labeling Trump’s alleged conduct as “bribery” or “extortion” cheapens what is alleged to have occurred and does not capture what makes it wrongful. It’s not a crime—it’s a breach of the president’s duty to not use the powers of the presidency to benefit himself. And he invited a foreign nation to influence the 2020 presidential election on the heels of a nearly three-year investigation that proved Russia had tried to influence the 2016 presidential election.
No one should expect law enforcement to act if our elected representatives are unwilling to do so.
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<p lang=”en” dir=”ltr”>Column: Mislabeling what the president has done could make impeachment more difficult to achieve https://t.co/yfMVH7gkdT</p>— POLITICO (@politico) September 22, 2019
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