House Democrats unveil articles of impeachment

The House Judiciary Committee has introduced a resolution proposing two articles of impeachment against President Donald J. Trump. The first article charges President Trump with “abuse of power” for his actions regarding Ukraine, while the second charges him with “obstruction of Congress” for his blanket refusal to cooperate with the impeachment inquiry. Both articles state that President Trump should not only be removed from office for these high crimes and misdemeanors but that he should be disqualified from holding any office of trust or profit under the United States. The Committee has announced that it plans to vote on these articles by the end of this week, with the full House taking them up next week. Assuming the House passes at least one article, the Senate impeachment trial would likely commence at the beginning of January.

In a way, the substance of these articles of impeachment is not a surprise. Congress has been clearly focusing its impeachment effort on the Ukraine scandal, and the basic factual contour of the abuse-of-power charge has been clear for some time. The House alleges that President Trump engaged in a scheme to pressure the government of Ukraine into announcing investigations into two subjects: first, former Vice President Joe Biden and his son Hunter Biden, who has sat on the board of directors of the Ukrainian energy company Burisma since 2014, and second, a theory—a “discredited theory,” per the articles of impeachment—that Ukraine, not Russia, interfered in the 2016 presidential election. The article notes that, even after this scheme was revealed publicly, President Trump has “persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal political benefit.”

As to obstruction of Congress, the House alleges that, after it began its impeachment inquiry, President Trump “without lawful cause or excuse” ordered the executive branch to defy every request or subpoena for documents or testimony. This “served to cover up the President’s own repeated misconduct and to seize and control the power of impeachment—and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.” These allegations likewise are no surprise; these conflicts between the House and the Executive Branch have been playing out in public for months, and the House has repeatedly stated its position that refusal to comply with its requests would be considered impeachable in its own right.

The unexpected element is how narrowly focused the articles are. At last week’s hearing with constitutional scholars, the Judiciary Committee seemed to be contemplating three or four separate articles: not only abuse of power and obstruction of Congress but also obstruction of justice and, potentially, bribery. Of those four, the Committee has pursued the two that do not directly correspond to a statutory federal crime, and this may not be a coincidence; there is speculation and some reporting to suggest that the bribery charge was abandoned because the Democrats feared that allegation would become bogged down in technical details related to the bribery statute. Another factor may be the influence of Harvard law professor Lawrence Tribe, who met with the Judiciary Committee Democrats over the weekend and has advocated for exactly the slate of articles the Committee has introduced.

But although the articles are few in number and narrowly drawn, they are not as exclusively confined to the Ukraine affair as it first appears. In three places, the allegations reference matters related to Russian interference in the 2016 election, and to Special Counsel Robert S. Mueller III’s investigation into and report on the Russia scandal. First, the abuse-of-power article refers to the “discredited theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election.” The purpose of this theory is, among other things, to discredit Special Counsel Mueller’s conclusion that Russia did interfere in the 2016 election. Second, the same article states that President Trump’s actions toward Ukraine were “consistent with [his] previous invitations of foreign interference in United States elections,” i.e. the Russian interference in 2016. Finally, the obstruction-of-Congress article states that President Trump’s actions to obstruct the impeachment inquiry were “consistent with [his] previous efforts to undermine United States Government investigations into foreign interference in United States elections,” i.e. the Mueller investigation and its predecessors.

These allusions suggest that, although the House is not planning to impeach President Trump directly for any of the material in Special Counsel Mueller’s Report, it may plan to weave a unified narrative connecting the Ukraine scandal to the Mueller Report: that events during the 2016 campaign and during the investigations into those events confirm President Trump’s character as a corrupt actor, and explain why he wanted Ukraine to investigate a theory that would exonerate Russia from charges that may at least tangentially implicate him as well. It remains to be seen whether the House will look to present evidence from the Mueller Report during the Senate trial, or whether it will leave that background material wholly in the background.

The announcement of articles of impeachment comes after a hearing on Monday in which the House Intelligence Committee, which held two weeks of hearings before Thanksgiving, presented its factual findings to the Judiciary Committee. This hearing was notable as it contained the first detailed factual defense of the President’s conduct based on the record assembled by the Intelligence Committee. Steve Castor, as counsel for the Republican minority on that Committee, argued that President Trump had a genuine cause for concern over corruption in Ukraine relating both to Hunter Biden’s role at the company Burisma and to Ukrainian efforts to influence the 2016 election. He also denied that President Trump had conditioned either an official meeting with Ukrainian President Volodymyr Zelensky or the $391 million in military assistance for Ukraine on investigations into either subject. He noted that there have been many meetings between Trump Administration and Ukrainian officials during the relevant time frame. And he suggested that the hold-up over military assistance was driven simply by President Trump’s general skepticism of foreign aid and his negative view of Ukraine as a corruption-riddled country. At one point Castor appeared to deny that Vice President Biden was one of President Trump’s leading rivals for re-election at the time of the July 25 phone call, or that President Trump would have any motive to damage his reputation.

If Castor’s arguments are any indication, therefore, President Trump’s defense will mostly accept the House’s factual narrative but will offer a competing interpretation of those facts, and a contrasting account of President Trump’s motivations. Thus, the third impeachment trial in American history may ultimately depend simply on whether each Senator is willing to credit the President’s good faith.

Robert Black is Senior Fellow for Constitutional Content at the National Constitution Center.