As described below, the Majority's case fails to meet the burden of proof required.[1]
Instead of alleging specific impeachable conduct, such as bribery or other high crimes, the Majority has alleged the vague and malleable charge of "abuse of power." While a consensus of scholars agree it is possible to impeach a president for non-criminal acts, the House of Representatives has never done so based "solely or even largely on the basis of a non-criminal abuse of power allegation."[2] That is because "[c]riminal allegations not only represent the most serious forms of conduct under our laws, but they also offer an objective source for measuring and proving such conduct.[3] No such objective measure has been articulated by the Majority. The Majority claims its abuse of power standard is satisfied when a president injures "the interests of the nation" for a personal political benefit.[4] What constitutes an injury to the national interest has been left undefined. It can mean anything a majority in Congress wants it to mean. The opposition party almost unfailingly disagrees with a president on many issues and can always argue his or her actions injure the national interest. Here, for example, Majority Members have already begun to argue the abuse of power allegations in the first Article encompass conduct totally unrelated to the Ukraine allegations.[5] Moreover, nearly any action taken by a politician can result in a personal political benefit. When a certain standard can always be met by virtually all presidents, depending on partisan viewpoints, that standard has no limiting neutral principle and must be rejected. Simply stated, the Majority is advancing an impeachment based on policy differences with the President-a dangerous and slippery slope that our Founders cautioned against during discussions crafting the impeachment clause.
The Founders warned against such a vague and open-ended charge because it can be applied in a partisan fashion by a majority of the House of Representatives against an opposition president. Alexander Hamilton called partisan impeachment "regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt" the "greatest danger."[6] Additionally, the Founders explicitly excluded the term "maladministration" from the impeachment clause because they did not want to subject presidents to the whims of Congress.[7] James Madison said, "So vas a term will be equivalent to a tenure during pleasure of the Senate."[8] As applied here, the Majority's abuse of power standard does precisely what the Founders rejected.
Thus, when the House of Representatives impeaches a president for non-criminal abuses of power, it must state with clarity how the harm to "national interests" is so egregious that it
- ↑ 38 See also Appendix A (Intel Comm. Minority Report).
- ↑ Turley, supra note 2, at 47.
- ↑ Id. at 23.
- ↑ See H. Res. 755, 116th Cong. (2019) (Article I).
- ↑ See, e.g., Rep. Rashida Tlaib, TWITTER, Dec. 10, 2019, 11:14am (stating that "abuse of power" standard includes the allegation that the "President targeted people solely based on their ethic [sic] background, their faith, disability, sexual orientation and even source of income.").
- ↑ The Federalist No. 65 (Alexander Hamilton).
- ↑ 2 The Records of the Federal Convention of 1787, 550 (Max Farrand ed., 1937).
- ↑ Id.
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