In a seminal piece published in the Wall Street Journal, constitutional lawyer David B. Rivkin Jr. and Elizabeth Price Foley address the impeachment of President Donald J. Trump head on, declaring the process “unfair to Mr. Trump and a threat to all his successors”.
The pair advance the following arguments:
1 – The Democrats are shifting from the established process of impeachment, using secretive hearings and failing to immediately call a full House vote on the matter before testimonies began:
“The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.
“Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.”
2 – “There is no evidence on the public record that Mr. Trump has committed an impeachable offense”:
“The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” The Founders considered allowing impeachment on the broader grounds of “maladministration,” “neglect of duty” and “mal-practice,” but they rejected these reasons for fear of giving too much power to Congress. The phrase “high crimes and misdemeanors” includes abuses of power that do not constitute violations of criminal statutes. But its scope is limited.
“Abuse of power encompasses two distinct types of behavior. First, the president can abuse his power by purporting to exercise authority not given to him by the Constitution or properly delegated by Congress—say, by imposing a new tax without congressional approval or establishing a presidential “court” to punish his opponents. Second, the president can abuse power by failing to carry out a constitutional duty—such as systematically refusing to enforce laws he disfavors. The president cannot legitimately be impeached for lawfully exercising his constitutional power.”
3 – The Constitution gives the President authority to conduct diplomacy and foreign affairs:
“Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities.
“Thomas Jefferson impounded funds appropriated for gunboat purchases, Dwight Eisenhower impounded funds for antiballistic-missile production, John F. Kennedy impounded money for the B-70 bomber, and Richard Nixon impounded billions for highways and urban programs. Congress attempted to curtail this power with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.
“Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it. Lyndon B. Johnson used the promise of financial aid to strong-arm the Philippines, Thailand and South Korea to send troops to Vietnam.”
4 – Democrat Ukraine Collusion:
“Further, there is credible evidence that Ukraine interfered in the 2016 presidential election at the request of senior Obama administration officials. The Justice Department is investigating this as part of its broader inquiry—now a criminal investigation—into efforts to target the Trump campaign in 2016 and beyond. It is certainly legitimate for the president to ask Ukraine to cooperate.”
The pair conclude:
“If the House impeaches Mr. Trump because it disapproves of a lawful exercise of his presidential authority, it will in effect have accused him of maladministration. The Framers rejected that amorphous concept because it would have allowed impeachment for mere political disagreements, rendering the president a ward of Congress and destroying the executive’s status as an independent, coequal branch of government. If the House impeaches on such grounds and the Senate concludes it has jurisdiction to conduct an impeachment trial, it should focus first and foremost not on the details of Mr. Trump’s foreign policy, but on the legal question of whether the conduct alleged is an impeachable offense.
“Alexis de Tocqueville observed in 1835: “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.” What House Democrats are doing is not only unfair to Mr. Trump and a threat to all his successors. It is an attempt to overrule the constitutional process for selecting the president and thus subvert American democracy itself. For the sake of the Constitution, it must be decisively rejected. If Mr. Trump’s policies are unpopular or offensive, the remedy is up to the people, not Congress.”