Why Trump's Impeachment Is Unconstitutional

On Dec. 6, in a letter to Rep. Jerrold Nadler, D-N.Y., Counsel to the President, Pat A. Cipollone, stated that

"House Democrats have wasted enough of America's time with this charade. You should end this inquiry now .  . . .   Adopting articles of impeachment would be a reckless abuse of power by House Democrats, and would constitute the most unjust, highly partisan, and unconstitutional attempt at impeachment in our Nation's history."

Is this accurate?

In particular, does it make any sense for a lawyer to characterize an "attempt at impeachment" as "unconstitutional?"

The Constitution, in Article I, Section 2, gives the House of Representatives the "sole Power of Impeachment." These words must mean that the power to bring articles of impeachment is completely vested in the House, and it is virtually inconceivable that the Supreme Court would ever nullify the House’s decision.

After all, Gerald Ford, when he was in Congress, famously said, "An impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history."

As a matter of politics, of course, Ford was undeniably correct, and the Framers understood that impeachment was inevitably going to involve political divisions, but if, as sensible students of the Constitution understand, law is more than simply politics, Gerald Ford was wrong.

It does, then, make good sense to consider the current proceedings as illegitimate, and, indeed, unconstitutional, even if there is no way to stop the House from moving forward if it chooses to do so.

It has now become clear that the Democrats’ effort to impeach this president is flawed both as a matter of substance and as a matter of procedure.

Ford’s view that the House has complete discretion in defining impeachable offenses is belied by the Constitution’s actually defining an impeachable offense, in Art. II, Sec. 4 as "Treason, Bribery, or other high Crimes and Misdemeanors."

No serious person has accused Donald Trump of "Treason," which is defined in Article III, Section 3, "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

An effort is underway, however, to suggest that "bribery" can consist of soliciting something of value in exchange for the performing of a presidential function, and that the president’s seeking Ukrainian aid in exploring corruption on the part of the Bidens or understanding Ukrainian interference in our 2016 presidential election before releasing military aid to Ukraine would meet that test.

Current law is clear, however, that bribery requires a "quid pro quo," something actually given in exchange.

The facts are clear that the Ukrainians never performed the requested investigations, and the military aid was eventually released.

More to the point, the president maintains that in seeking cooperation from Ukraine, he was acting in good faith to ensure that Ukrainian or domestic corruption would not result in improper expenditure of American aid funds, and that the delay in funding was also a result of efforts to get other countries to participate in aid to Ukraine.

In other words, the president points out that far from engaging in an impeachable offense, he was simply, and in good faith, carrying out the task the Constitution entrusts to him of managing the country’s foreign affairs.

The Senate is likely to be persuaded by that substantive argument, but the House’s procedural conduct ought also to be the subject of condemnation. This is a subtler matter, as there are no constitutional rules for how to proceed in an impeachment inquiry.

Good lawyers, understand, though, that there is always a requirement that procedures be conducted in good faith and with fairness.

This is what we mean when we talk about "due process," and Mr. Cipollone gets it right when he characterizes what the House has done as a "charade," an "abuse of power," "unjust" and "highly partisan."

When Rep. Adam Schiff, D-Calif., refused to allow Republicans to call their own witnesses, to put particular questions to the witnesses who testified, or to allow the President to be represented by counsel in the House Intelligence Committee’s hearings he violated prior precedent in the House (those that had governed the Clinton and Nixon impeachment proceedings), and acted in a manner contrary to constitutional guarantees in the Bill of Rights that afford an accused person the assistance of counsel and the right to cross examine witnesses.

In the hearing in Nadler’s Judiciary Committee on the history of impeachment, Republicans were allowed to call only one witness while the Democrats were permitted to have three testify.

These, and other similar violations of basic fairness and constitutional protections, will likely lead the Senate to conclude that the impeachment effort is fatally flawed as a matter of both substance and procedure.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.