Abuse of Power is a Crime

Listening to the opening arguments of lawyers defending Donald Trump in the ongoing impeachment trial, it became clear that much of the president's attorneys' defense hinges on semantics. Alan Dershowitz, for example, citing precedents from the impeachment trial of Andrew Johnson, argued that a president could only be impeached for "crime-like behavior," and since "abuse of power" is not a statutory crime, it does not meet the constitutional criteria for removal of a duly elected president. This arguments fails for the simple reason that, by any reasonable understanding, abuse of power is a crime. Indeed, it is the most basic crime that might justify the impeachment of a president, if we follow the clear logic of the constitution itself.

While the constitution does demand that the president be removed only on commission of "high crimes," the claim that, in the case of the president, such infractions can only be recognized by consulting the current federal criminal code is absurd. It remains a point of controversy, 222 years after the adoption of the US constitution, whether the president is subject to criminal indictment at all (current Justice Department directives say "no"). Since the criminal code does not regularly apply to the president, it is foolish to expect that it would outline every infraction of which the office was capable. Why would Congress pass a law that cannot be adjudicated?

This reality is acknowledged by the impeachment process itself. If the crimes for which impeachment was legitimate could be found in the criminal code, the power of impeachment would be invested in the courts. Because the crimes for which impeachment is warranted constitute a special class of infraction, the process is entrusted to the legislature.

If the crimes for which the president can be impeached are not violations of the criminal code, what body of law regulates such infractions? The answer is quite simple: the Constitution of the United States itself. The constitution is, by its own account, "the supreme law of the land." When a president is impeached, he is fundamentally being accused of crimes against the constitution. Since all of the President's power is invested in him by the constitution (as Article II, Section 1 declares: "The executive Power shall be vested in a President of the United States of America")  and the oath he took to uphold the same, "abuse of power" is the most basic crime for which he may be impeached.

How then, does what Donald Trump has been accused of constitute an abuse of power? The most basic dimension of the infraction lies in the simple act of asking for a political favor from the government of the Ukraine (a transgression that he then repeated and amplified on camera, adding China to the foreign powers from which he solicited such gifts). The constitution binds all officials of the government, but especially the president, to act in "the common defense," not out of a concern for their personal political fortunes. Nothing about the favor requested by the president enhanced the security or well-being of the people of the United States. It was pursued exclusively for the purpose of enhancing the President's electoral chances in November.

This constituted an "abuse of power" because it was a maneuver of which the President, alone among officials of the US government, was capable by virtue of his office as "chief diplomat." The constitution makes the President the prime point of contact between the US and foreign powers, but places discrete constraints on the legitimate exercise of that special access, because it explicitly acknowledges the danger of abuse. All officials are forbidden to accept "gifts, emoluments, offices or titles of nobility from foreign states and monarchies" and the president is made particularly impeachable on the charge of "bribery" because the constitution recognizes the potential for foreign affairs to undermine the democratic processes of our governance. The key check on impropriety by  US government officials is the scrutiny of the American citizenry: any action by an elected official may result in loss of power at next vote. Foreign kings and leaders face no such checks on their actions as regards the US. In their dealings with the US, they are accountable to only one American: the president, and their actions might never be made available for the US voting public to investigate.

If a president were sufficiently free to do so, therefore, he could "outsource" all manner of tasks that would be politically advantageous if their motives and true conditions could be obscured from the voting public. Fabricating a murder scene in a hotel room to discredit a political opponent, for example, carries huge risk for a US official because freedom of the press, independence of the judiciary, and other checks on government power stand as powerful deterrents. But those deterrents do not constrain the actions of a foreign government acting on the president's behalf (this would of course be true in an autocratic government like North Korea, but might even apply in the case of a democratic country whose people were sufficiently hostile to the United States). From any angle that one examines the question, solicitation of political favors from foreign leaders is a violation of the office of the presidency severe enough to constitute a "high crime" in and of itself.

Donald Trump's alleged transgression in the particular case of Ukraine, moreover, is compounded by the fact that he not only solicited a political favor, but is accused of trying to extort it from Ukraine's president using his powers as conductor of foreign policy. The founders were focused on "bribery" as an impeachable offense because they viewed the nascent US as a weak nation vulnerable to the sway of foreign potentates, thus the abuse of power that they most easily imagined a president committing entailed capitulation to foreign pressure. But now that the US is among the world's chief superpowers, the president is able to pressure foreign governments into aiding his undermining of the democratic process. If the president had threatened Ukraine with a military strike unless they announced an investigation of Joe Biden, for example, that would not violate any criminal statutes, yet under those circumstances the president's lawyers could not plausibly argue against such an action being an abuse of power worthy of impeachment. To argue that the withholding of military aid from an embattled ally facing an existential threat is not an impeachable abuse of power similarly violates common sense. In both cases, the president's abuse of otherwise legitimate powers for personal political ends are a crime against the constitution.

As the supreme law of the land, the constitution guarantees us the right to live in a Republic. The basic embodiment of that entitlement is the assurance that our government contains no official with the arbitrary and unchecked powers of a king. The constitution acknowledges that foreign affairs are a realm in which the democratic checks and balances of government are most vulnerable to subversion. That is why proscriptions and sanctions constraining officials' dealings with foreign powers were built into the constitution, and why the powers for the conduct of foreign affairs were shared out between the president and the Congress. Lawyers may argue about the facts of the case involving Donald Trump and the government of Ukraine, but there can be no question that what the president is accused of is an impeachable offense. If the President attempted to extort a personal political favor from the government of Ukraine, against the will of Congress and to the potential detriment of an ally's security, he abused his power as chief diplomat and executor of US foreign policy. Such an act is a crime against the constitution, and would warrant removal from office.