The former acting solicitor general is a fine impeachment guide but he might want to rethink claiming not to be partisanYou can take President Trump’s impeachment to the bank but his actual removal from office is the longest of shots. Most likely, as Andrew Johnson and
Bill Clinton did before him,
Donald Trump will survive a trial in the Senate. A year from now, expect to see his name on the ballot. Even as
Joe Biden, the
Democratic frontrunner, leads Trump in the polls, the betting lines give the edge to the president.Substantively, the public impeachment hearings have been devastating. The bottom line is yes, there was a quid pro quo on aid to Ukraine. According to uncontroverted testimony, Rudy Giuliani, the president’s personal lawyer, drove the bus at his client’s behest, and no,
Ukraine did not interfere in the 2016 election. It was
Russia, no surprise. Trump, however, stands defiant, his base unmoved and intact.Into America’s cold civil war jumps Neal Katyal, once Barack Obama’s acting solicitor general, with Impeach. Subtitled “The Case Against Donald Trump”, the book is a thoughtful and well-researched polemic that advocates Trump’s removal. Among other things, it provides a highly readable history on the origins and evolution of impeachment, and offers answers to questions that surround the process.But like the current impeachment hearings, its capacity to persuade will probably be limited. By definition, impeachment is political. These days, it is also highly partisan. The social cohesion and trust that girded the move to impeach Richard Nixon and led to his resignation in the summer of 1974 has been ground to dust. E pluribus unum has its limits.Relying on the constitutional debates, English legal history and the bloody aftermath of the duel between Aaron Burr, Thomas Jefferson’s vice-president, and Alexander Hamilton, founding father par excellence, Katyal convincingly argues that impeachable conduct – “High crimes and misdemeanors”, in the parlance of the constitution – should be understood to mean offenses that violate the public trust.Book linkIn other words, it is not necessarily about criminality or the penal code. Although bribery and treason definitely make the cut. For support, Katyal quotes Hamilton … and Mike Pence.In Federalist No 65, Hamilton wrote that impeachable offenses are those “which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust … as they relate chiefly to injuries done immediately to the society itself”.As for Pence, back when he was a congressman: “This business of high crimes and misdemeanors goes to the question of whether the person serving as president of the
United States put their own interests, their personal interests, ahead of public service.” Irony definitely abounds.To bolster his contention, Katyal observes that Burr was not impeached after
shooting Hamilton dead in Weehawken, New Jersey. Ultimately, that was deemed to be private conduct, beyond Congress’s purview. In that sense, it was a fatal forerunner to the clash over Bill Clinton and Monica Lewinsky.Impeach also records how framers rejected the contention that
elections and term limits should be the sole remedy for presidential wrongdoing. There, Katyal chillingly quotes Benjamin Franklin: “What was the practice before this in cases where the chief magistrate rendered himself obnoxious? … Assassination.”There is something to be said for safety valves. Ask Charles I or Louis XVI.Katyal also weighs in as to whether impeachment is subject to review by the supreme court. His answer is “No,
Congress has the final word.” There, Katyal points to the impeachment and removal of Walter Nixon from the federal bench in 1989, and the supreme court holding that the “judiciary, and the supreme court in particular, were not chosen to have any role in impeachments”.Some of Trump’s minions remain undeterred. Harvard’s Alan Dershowitz has argued that impeachment charges may be scrutinized by the judiciary, relying, in part, upon a concurring one-man opinion written in the Nixon case by David Souter, a George HW Bush appointee to the supreme court. Dershowitz failed to reference the broader decision.Until recently, Dershowitz represented Jeffrey Epstein and reportedly was sought by Trump too. On Thursday, Trump strung together “due process” and “human scum” in the same sentence. Talk about getting into the spirit of things.As for the substance of Trump’s impeachment, Katyal relies upon a series of damning documents. He points to the whistleblower’s complaint, the “transcript” of the president’s infamous 25 July 2019 telephone conversation with Volodymyr Zelenskiy, Ukraine’s president, and text messages from such luminaries as
Rudy Giuliani and Gordon Sondland.Ambassador Gordon Sondland testifies before the House intelligence committee. Photograph: Doug Mills/Pool/EPAIn hindsight, all that was just the tip of the iceberg. The rot went all the way to the top. Trump infected all. Think
Mike Pompeo, the secretary of state, and possibly Vice-President Pence. As Sondland testified, “everyone was in the loop” and “we followed the president’s orders”.Politically, Katyal can appear tone deaf. At the outset, he proclaims, “I am not a partisan” – despite a record of donating to the Democratic National Committee and the Obama and Clinton campaigns. He has contributed more than $12,000 over the past decade to political causes. Said differently, being a law professor does not immunize one from being a partisan.Katyal also fails to grapple with just how we have reached this historic point. He acknowledges that America today is historically reminiscent of the 1850s, and yet he does not delve into how we got there. The Trump presidency did not emerge out of thin air.Regardless, abuse of power and venality appear to hallmarks of the Trump era. Against the backdrop of the impeachment hearings,
Benjamin Netanyahu, Israel’s prime minister, noted Trump booster and friend of the Kushner clan, was indicted for fraud, breach of trust and quid pro quo bribery.Misery loves company. Expect Trump to be impeached by Christmas.