Josh Blackman: What the Democrats left out

Most fair definitions of that term would include Trump’s offer to perform official acts in exchange for something of value—that is, a Ukrainian investigation of Joe Biden’s son. Yet Democrats wisely avoided making charges whose factual basis was in any way debatable. They may have realized that, under the Supreme Court’s 2016 ruling in McDonnell v. United States, which scaled back the definition of political corruption in criminal cases, Trump could make a superficially plausible argument against an impeachment article about bribery. The criminal law doesn’t technically govern impeachment, but it might have provided Trump with just enough philosophical cover to drag out the process.

Democrats also declined to accuse Trump of obstruction of justice based on the Mueller report, even though both Richard Nixon and Bill Clinton faced such charges in their impeachments. This was likely a pragmatic political decision rather than a legal one. Trump’s bold attempts to kill the investigation into Russia’s interference in the 2016 election are ancient news at this point.

Had Democrats included these and possibly other charges, Republicans might have had fodder for their defense that Democrats are out-of-control Trump haters who wanted to undo the 2016 election the moment the Electoral College was called for him over Hillary Clinton. A laundry list of impeachment charges, some more easily provable than others, would have invited a whole host of factual and political distractions, allowing Republicans in Congress to dodge the actual evidence and vote to acquit based on any number of rationales of varying legitimacy.

With their two-step impeachment dance—abuse of office and obstruction of Congress—Democrats have instead put Republicans in a box. On both proposed articles of impeachment, the facts are clear and largely unrebutted—unless, of course, one is willing to forgo facts entirely and run amok with lies. Indeed, Rudy Giuliani has still been globe-trotting in an effort to resuscitate the debunked theory that Ukraine interfered in the 2016 election, so as to gin up an excuse for Trump’s refusal to timely give Ukrainian President Volodymyr Zelensky $391 million in military aid and a White House meeting absent Zelensky’s announcement of investigations into the Bidens.

The only question that remains is what to do about the facts. If the Senate acquits as expected, the answer will be: We’ll do nothing. That answer, in turn, will bend the Constitution and our system of separated powers in significant ways.

First, it will mean that overwhelming obstruction of Congress by a president is okay with Congress itself. Ouch. President Trump refused to turn over a single document to Congress in connection with impeachment, but not on the grounds of executive privilege. Ditto regarding his directive that no one who served in his administration should comply with subpoenas for testimony. His stonewalling is based on a legally insupportable theory that anyone who ever worked for him has total immunity from showing up in response to a subpoena in the first place. The Supreme Court refused to give Nixon and Clinton themselves such protection. If presidents aren’t immune from subpoenas, their employees certainly aren’t either.