An impeachment trial recap

The impeachment trial of President Trump concluded on February 5 with the Senate voting to acquit him on charges of abuse of power and obstruction of Congress. 

Over the prior two weeks, the House managers presented the House Democrats’ case for impeachment and removal, with lawyers arguing on behalf of the president then putting forth opposing arguments as to whether President Trump committed an impeachable offense. Echoing those arguments – two professors from the George Washington University Law School –Andrew Knaggs and Peter Smith –joined host Jeffrey Rosen on last week’s episode of We the People to recap the impeachment trial. 

In a live event recorded at GW Law in Washington, D.C. on January 31, Smith and Knaggs fleshed out their differing views on whether President Trump committed an impeachable offense. Smith argued that President Trump, by asking Ukrainian President Volodymyr Zelensky to investigate the Biden family, acted in favor of his re-election in 2020 and committed an impeachable offense. 

“The president sought to corrupt our political process in the service of his personal goals,” Smith said. He echoed arguments made by the House managers, adding that “the use of power to further the president’s electoral prospects is essentially the most damaging kind of abuse of power because it’s one that undermines the electoral process itself.” 

For that reason, he said impeachment, rather than waiting for the 2020 election, was the necessary remedy. 

“We cannot leave to the political process – that is to say, a vote of the people – the question of whether to punish [the president] because the very electoral process itself – it's what the president sought to compromise by his actions.” 

Knaggs disagreed, saying that he worries about the long-term effects of the decision to impeach President Trump. 

“This precedent will destroy that ability of the people to bring their will to bear,” he said. “I think that is very dangerous, and I think that is exactly why our founders designed this government in the manner that they did. A vote of the people should be what we resort to.” 

Knaggs also asserted that the president’s behavior was somewhat typical: 

“When we talk about the chief executive within our republic acting in a manner that improves that individual’s electoral prospects, we are not describing an impeachable offense. What we’re doing is we're describing first term presidents. That is not to say however, that first-term presidents have the authority and carte blanche to commit crimes in the interest of their future electoral prospects. However, it is to say that those who are elected to public office have an obligation to their constituents and to the law and the oath that they have taken to uphold and defend, and we know the rest. Without the elements of a crime, I have struggled to see how it is that acting in a manner that inures to the benefit of what the president in – I think in his assessment and the administration's assessment – is in the best interest of the American people, I struggle to see how that becomes impeachable.” 

Smith countered that that sort of thinking “would render impeachment, at best, empty.”  

“There would essentially never be grounds for impeachment, at least for a first-term president because the president’s acts in seeking reelection would, by definition, be immune from any sort of scrutiny,” he said. 

Smith and Knaggs also disagreed about whether the president committed a crime, and whether a crime is a necessary part of an impeachment. 

Smith said he believes there is reason to argue that the president’s behavior violates the federal ban on bribery.

“But even if that’s not the case, the Framers included the “high crimes and misdemeanors” language in the constitution in order to ensure that other conduct, that is to say, conduct other than treason and bribery that betrayed a breach of the public trust, would be  sufficient grounds for removal. … some [Framers] were quite worried that a president interested in using the powers of the office, either to enrich himself, or in conflict with the interests of the nation would not necessarily be removable if the only standard were treason and bribery. And they settled on the high crimes and misdemeanors standard in order to ensure that they could effectively capture such conduct,” he said.

An example Smith cited to support his point was the impeachment of President Richard Nixon. Nixon was charged with using the IRS to investigate his political opponents, which wasn’t a crime under federal criminal code, but, according to Smith, was clearly an impeachable offense. 

Countering all of those points, Knaggs first asserted that a crime is necessary for impeachment. Knaggs, who worked in the Trump administration’s Department of Defense and in numerous other governmental roles involving foreign affairs, also asserted that the president’s behavior in the Zelensky call does not constitute a crime; rather, it is part of carrying out foreign policy. 

“I believe that there are a great many instances in diplomacy – in just the conduct of our foreign policy – where the United States places conditions on the provision of aid to foreign countries. Again, that might be startling to your listeners and those of us here in the room, but foreign countries do not have a right to American citizens’ resources. They are always conditioned, always,” he said. 

Knaggs also challenged Smith’s comments on the precedent of the Nixon impeachment. He said the Nixon precedent does not apply because challenges to the congressional subpoenas of officials in the Nixon administration were litigated in the courts, whereas the subpoenas of Trump administration officials were dealt with by the legislature.  

Knaggs said that the executive does have information “that Congress does not just simply have per se, direct access, unfettered access to. That has been the case from the founding of the republic, and to the extent that Congress wishes or believes that it should have access, well then it can resort to the courts.” 

Thus, Knaggs said he does not think it was proper for the House to charge President Trump with obstruction of Congress for instructing some of his aides to defy subpoenas.  

“Obstruction of Congress is the most dangerous– it is the absolute most insidious, dangerous [charge]. Because if this is allowed to continue breathing . . . what that does is it eviscerates a coequal branch of government from doing business without being directed and controlled by another branch. And that is incredibly dangerous.”  

Smith, however, said the obstruction of Congress charge was necessary to try to set a precedent that prevents the executive from claiming privilege and stonewalling Congress. 

Smith said that the Supreme Court has made clear that “even though [executive] privilege exists, it can be overcome by a showing of need” and that “in cases involving national security or military secrets, the claim for executive privileges is clearly much stronger”: 

“I think it is much more difficult, therefore, in this case, to say this is a good faith assertion of a privilege that all presidents, since George Washington, have claimed, because it is a categorical resistance to oversight . . . the blanket assertion of categorical privilege, regardless of . . . assertion of the privilege or the nature of the conversations that are at issue, I think is a substantial and sufficient basis for Congress to impeach because otherwise the impeachment process would be empty because the president could frustrate the disclosure of the facts necessary to judge his conduct without any sort of consequence,” he said. 

The Senate declined to convict President Trump for obstruction of Congress by a 52-48 vote and for abuse of power by a 53-47 vote.