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Latest news and events. Even if Trump does not send a lawyer to the Senate to defend him, he will be defended by Republican senators. The charge of abuse of office for personal gain fits neatly into the sense of high crimes and misdemeanors familiar to the framers when they wrote the Constitution. They were particularly concerned that a sitting president would abuse his office to get reelected. Nevertheless, there is a range of defenses that Trump or his proxies could raise to the charge. One is purely fact-based. In short, there was no quid pro quo. The main trouble with this defense is that the factual record compiled by the House Permanent Select Committee on Intelligence effectively proves that there was a quid pro quo.

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Ambassador Gordon Sondland testified expressly that there was. He even testified that Trump told him there was no quid pro quo but that he understood Trump to mean that the aid and White House visit were conditioned on announcing investigations—in other words, a quid pro quo. On its own, the request that Trump made to Ukrainian president Volodymyr Zelensky in his July 25, , phone call qualifies as solicitation under the terms of the article of impeachment.

One would suffice.

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Rather, they may say, Trump genuinely was concerned about corruption in Ukraine, and held up aid and the White House meeting in order to give Ukraine incentives to take it seriously. In its crudest form, this defense is notably unconvincing. Trump showed no personal interest in corruption generally in Ukraine, or anywhere else, in the period when he was insisting on the announcement of the investigations. In its strongest form, the argument would insist that it is too difficult to disentangle legitimate from illegitimate motives, and that Trump should not be removed from office for conduct that could have had a legitimate explanation.

If Trump aimed to benefit himself, it should not matter for constitutional purposes whether he also wanted to do good for the country.


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The principle here is that abuse of office is not mitigated by the possibility that the official conduct might have positive effects. Consider a classic case of the impeachable offense of abuse of office for personal gain: an officeholder takes outside money to do the job that he is already supposed to perform to earn his government salary. Imagine an attorney general who took a gift from one mobster to influence him to prosecute another mobster. The ensuing mob prosecution might be entirely legitimate and in the public interest. But by taking the gift, the attorney general would have committed an impeachable offense.


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The core offense of abuse of office lies in taking the gift, and thereby exploiting the office for personal benefit. Impeachments of this type were common in eighteenth-century England and known to the framers. It follows that if Trump sought personal advantage in the form of the announcement of the investigations, then his act of soliciting them was ipso facto an abuse of office. It does not matter that he could conceivably also have had a broader public interest in fighting corruption. The abuse of office was committed when he used the power of the presidency to seek personal advantage.

The presence of the corrupt motive of self-gain is enough. The limits of the factual case in defense of Trump bring us to his possible legal defenses. The first of these, voiced in the House debates and sure to be heard in the Senate, is that impeachment for high crimes and misdemeanors requires a criminal offense as defined by statute or common law, and that the articles of impeachment do not allege one. In its simplest form, this argument can be refuted by observing that in the English tradition there were impeachments for acts that were not forbidden by statutory or common law, and that the framers certainly did not recognize any such limitation.

Furthermore, previous impeachments that led to removal from office not of presidents but of judges have proceeded based on acts that were not crimes. There are, however, two better-formulated versions of this defense, one historical and the other philosophical. The historical defense depends on the claim that both Johnson and Clinton were impeached for criminal acts, and that the articles of impeachment against Richard Nixon also invoked statutory crimes.

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While superficially appealing, this argument turns out to be weak when examined closely. Johnson was impeached for violating the Tenure of Office Act, a law of very doubtful constitutionality that was enacted by Congress as an impeachment trap for the president. It purported to prohibit him from firing cabinet officials without the approval of the Senate.

Johnson was thus not impeached for violating an ordinary criminal statute, but for the high misdemeanor of firing his secretary of war. It is therefore misleading to say that all the presidents who have been impeached were charged with statutory crimes. It rests on what is sometimes called the principle of legality, namely that no one should be punished without notice of a crime specified in advance. The strength of this defense rests on the intuitive sense that it must be unfair to punish someone for conduct he could not have known would merit punishment.

Yet impeachment and removal are not punishments. More basically, however, it is often perfectly legitimate to sanction someone for conduct that is obviously morally wrong, even if it has not been clearly delineated in writing in advance. That is why, as a historical matter, common law judges sometimes punished behavior that was not known in advance to be criminal but that they considered morally wrong in itself. Some conduct by a president is so obviously wrong that it does not have to have been specified in advance. Trump, like every president before him, should have known that it would be morally wrong to use the power of his office to solicit a foreign government to investigate his presidential rival for his personal benefit.

Nothing in the debates at the Constitutional Convention or the ratifying conventions that followed suggests that the framers even began to imagine an executive who would purport to deny the House its power to impeach him.

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I can find no example of any royal official in England who defied or denied the impeachment power of the House of Commons. The framers did, however, provide a remedy for a president who refused to cooperate in an impeachment inquiry: impeachment itself. As a matter of basic constitutional logic, the only thing the House of Representatives can do when faced with presidential refusal to cooperate in impeachment is to impeach the president for that same act of obstruction. The Constitution makes this possible because it does not specify any process that the House must use to impeach, or indeed require any investigation at all before impeachment.

All it takes is a majority vote.