Trump Impeachment Hinges on Whether He Had "Corrupt Intent" in Taking Lawful Actions

COMMENTARY Political Process

Trump Impeachment Hinges on Whether He Had "Corrupt Intent" in Taking Lawful Actions

Dec 20th, 2019 3 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
It’s not enough to just accuse Trump of trying to “coerce” Ukraine into interfering in the 2020 election. Saying that over and over simply does not make it so. Mark Wilson / Staff / Getty Images

Key Takeaways

The impeachment of Trump appears to be a punishment in search of a crime.

The impeachment process is, next to declaring war, the most consequential thing Congress can do.

Not a single Republican voted for either article of impeachment.

For only the third time in American history, the U.S. House of Representatives has voted to impeach the president of the United States. This sounds really bad, but here are a few things to help put it in perspective.

House Resolution 755, which was adopted Wednesday night largely along party lines, contains two articles of impeachment against President Trump—one labeled “abuse of power” and the other “obstruction of Congress.”

Not a single Republican voted for either article of impeachment. Two Democrats voted against the first article, and three voted against the second—while Democratic presidential contender Tulsi Gabbard of Hawaii voted “present” on both articles.

It’s important to understand that this is not the first impeachment resolution filed against President Trump by House Democrats.

HR 438, introduced in July 2017, proposed impeaching Trump for hindering the investigation into Russian interference in our 2016 presidential election.

HR 621, introduced a few months later, had five impeachment articles alleging: violation of the Constitution’s emoluments clause; “lack of respect for the federal judiciary,” such as by tweeting and criticizing judges; and speaking negatively about the media.

HR 705, introduced in January 2018, said Trump should be removed from office for “sowing discord among the American people.”

In short, the impeachment of Trump appears to be a punishment in search of a crime.

The impeachment process is, next to declaring war, the most consequential thing Congress can do. It would not only nullify the last election—it would prevent a president from running for reelection if he is in his first term.

That means a simple majority of the House and two-thirds of the Senate could neutralize the electoral votes of 30 states. That is, it would take no more than 218 House members and 67 senators to wipe out the votes of 63 million Americans who cast ballots to put Donald Trump in the White House.

While the Constitution does not require a particular standard of proof, such as “beyond a reasonable doubt,” the gravity of impeachment and its consequences demands something at that end of the scale.

The House did not impeach Trump for pushing Ukraine to investigate corruption, or for delaying security assistance for Ukraine and refusing to hold a White House meeting with Ukrainian President Volodymyr Zelensky.

Nor did the House impeach Trump for conducting some aspects of foreign policy in an “irregular” manner. By themselves, there was nothing wrong with those actions. The House impeached Trump for what the impeachment resolution called his “corrupt purposes” behind those actions.

The thing that turned permissible presidential choices into impeachable offenses, the House said, is that Trump took those actions to “solicit the interference of a foreign government”—Ukraine—in the 2020 U.S. presidential election.

Trump’s alleged offense was not his “urging and soliciting Ukraine to undertake investigations,” but the allegation that he “corruptly” did so “for his personal political benefit.”

This is the single most important issue in the entire impeachment drama. The House impeached Trump for his intent—his motive and purpose behind otherwise legitimate actions.

The Senate must now conduct a trial for Trump, serving as both judge and jury. According to the American Bar Association, the jury “listens to the evidence during a trial, decides what facts the evidence has established, and draws inferences from those facts to form the basis for their decision.”

Specifically, senators must decide whether the evidence has established Trump’s intent to solicit foreign interference in the 2020 election. Or, as more than one House Democrat has put it, whether Trump tried to get Ukraine to “help him cheat” in the election.

It’s not enough to just accuse Trump of trying to “coerce” Ukraine into interfering in the 2020 election. Saying that over and over simply does not make it so.

It’s also not enough to show that Trump pushed Ukraine to conduct investigations. And it’s not enough to speculate that, if those investigations had occurred, they might have produced information that Trump might have used in his campaign next year.

It is certainly not enough to say, as Rep. Mary Gay Scanlon, D-Pa., did in the House Judiciary Committee Dec. 12, that “if it looks like a duck … it’s probably a duck. And I’m afraid that the July 25 call is a duck.” She was referring to a call between President Trump and President Zelensky.

If a criminal defendant is charged with a specific-intent crime, the prosecutor must prove, separately and by the same standard, both the underlying action and the intent behind that action.

The same should be true during the Senate impeachment trial. The prosecutor’s role will be played by designated House members. Senators should not let them off the hook in terms of proving the central element of the charges they have leveled against the president.

As the American Bar Association put it, does the evidence clearly establish the fact of Trump’s intent—the alleged “corrupt purpose”—that House Democrats say should take from the American people the decision about whether Trump should remain in office? This is the question that every senator must answer.

This piece originally appeared in Fox News