For weeks now, I have been pushing the message on my weekly Election Wire newsletter (sign up here!) that the White House’s current impeachment defense strategy is misguided. Rather than focus on the procedural and semantical debate over whether a “quid pro quo” took place on the impeachment inquiry’s underlying Jury 25th phone call between President Donald Trump and Ukrainian President Volodymyr Zelensky, I have argued that it would be far preferable for the White House to defend the underlying substance of the phone call as failing to rise to the Constitution’s impeachment criteria.
Following U.S. Ambassador to the European Union Gordon Sondland’s testimony today in front of the House Intelligence Committee, I feel vindicated. After all, Sondland’s testimony today focused disproportionately — perhaps nearly exclusively — on the question of whether a “quid pro quo” took place when Trump broached the subject of investigating the corrupt nexus of the Bidens and troubled Ukrainian energy company Burisma in the context of doling out fresh U.S. foreign aid to Ukraine.
The debate over whether a “quid pro quo” transpired has been at the very heart of Intelligence Committee Chairman Adam Schiff’s (D-CA) impeachment inquiry, and it seems to be the consensus Democratic Party stance that such a “quid pro quo” would be ipso facto (hey, the English language has other Latin loanwords, too) impeachable. Accordingly, President Trump and his defenders in both the Republican elected official ranks and conservative punditry have centered their defense of Trump’s actions around the argument that no “quid pro quo” took place on the July 25th phone call.
This is a tactical error that ought to be remedied. But the good news is that it is not too late to change course.
Let’s start with first principles. Article II, Section 4 of the U.S. Constitution defines the jurisdiction of impeachable offenses as being “treason, bribery, or other high crimes and misdemeanors.” In using the phrase “high crimes and misdemeanors,” the Constitution’s Framers employed a well-known phrase with a rich history in the English common law tradition.
In The Federalist No. 65, Alexander Hamilton helpfully defines “high crimes and misdemeanors” as being “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” By contrast, the men at the Constitutional Convention of 1787 expressly considered the much lower impeachment threshold of mere “maladministration” before deciding against it. Put another way, the Framers specifically deliberated the possibility of constitutionally permitting impeachment for something as trivial as a mere policy disagreement or partisan squabble before rejecting that possibility outright.
The White House, congressional Republicans, and Trump-friendly conservative media alike should reorient their impeachment defense toward arguing that Trump’s conduct on the July 25th phone call with Zelensky simply does not rise to this elevated “high crimes and misdemeanors” constitutional criterion. The White House and its defenders should make the point that the absolute worst-case interpretation of the phone call is that of an ethical disagreement over how — or how not — presidents ought to attach strings to the doling out of U.S. taxpayer-funded foreign aid. In no world, the White House should argue, does Trump’s conduct in attaching legitimate, corruption crackdown-tied strings to the U.S.’s doling out substantial foreign aid to Ukraine constitute, using the Hamiltonian language of The Federalist No. 65, an “abuse or violation of some public trust.” This argument would be politically popular, to boot: Americans routinely poll against foreign aid, and agreeing with the premise that strings should be attached to foreign aid is therefore a winning message for Republicans as we head into the heart of election season.
It is not yet too late for the GOP to change tactical course. But Sondland’s testimony today really ought to serve as a wakeup call for the White House and its congressional allies that they should do so sooner rather than later.