To Prove Trump’s Bad Faith, Don’t Argue Policy. Show He Subverted the Process.
On Ukraine, the president dodged processes designed to ensure that U.S. foreign policy serves the public interest.
Donald Trump is the first president in American history to stand trial for impeachment before the Senate for mishandling the nation’s foreign affairs. And while the impeachment power was shaped by the Framers’ concern that a president might “betray his trust to foreign powers,” it has in practice presented some unexpected challenges. At least one may warrant a shift in how the House of Representatives’ impeachment managers are approaching a central element of their case: presidential intent.
For better or worse, modern presidents exercise immense discretion over much of U.S. foreign policy, reflecting a core constitutional responsibility of uncertain scope that’s nonetheless been expanded through subsequent legislation and judicial precedent. Congress imposes certain limits on the president, but rarely the tight constraints one sees in domestic affairs. And federal courts generally defer to the executive on foreign-policy matters, including what policies best serve the national interest.
Congress isn’t obligated to extend this same deference when weighing impeachment. But it is constrained by the impeachment power itself, which the Framers intended for use in addressing “the abuse or violation of some public trust,” not mere differences in policy views. Permitting impeachment over the latter, they worried, would make it vulnerable to political abuse and ultimately a threat to the separation of powers. For this reason, they reserved impeachment for offenses like “Treason, Bribery, or other high Crimes and Misdemeanors” that require more deliberate disregard for one’s duties.
In building their case against Trump, the House’s impeachment managers attempt to show this bad faith by arguing that Trump’s attempt to solicit politically charged investigations from Ukraine—and withhold U.S. security assistance and a White House visit to pressure them to capitulate—not only benefited his personal political interests but “had no legitimate policy rationale” and even “jeopardized U.S. national interests,” a conclusion supported by testimony from several career U.S. officials. But reaching this conclusion requires that the Senate weigh the sorts of foreign-policy interests on which presidents generally receive substantial deference. And this in turn can be difficult to distinguish from mere differences in policy views, at least so long as there is the slimmest reed of possible policy justification for the president’s actions.
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For months, Trump and his allies have capitalized on this tension to muddy the case for impeachment. “The person who sets the foreign policy of the United States is the president,” Rep. Elise Stefanik, R-New York, argued during House proceedings, setting the stage for House colleagues who attempted to justify the president’s actions in terms of U.S. policy interests. “I said do us a favor, not me, and our country, not a campaign,” Trump himself wrote in a letter to Speaker of the House Nancy Pelosi, describing his infamous July 25 phone call with Ukraine’s president. “You are turning a policy disagreement between two branches of government into an impeachable offense….”
Now this argument is playing a central role in Trump’s impeachment defense. “[F]erreting out supposedly ‘constitutionally improper’ motives by measuring the President’s policy decisions against a purported ‘interagency consensus’…is a transparent and impermissible inversion of the constitutional structure,” his lawyers argued in the brief they filed this past Sunday. Nor, they maintain, has the House succeeded in showing that personal interest was “the only reason” Trump solicited investigations, while citing U.S. policy interests in combating foreign election interference and corruption.
None of these policy justifications are particularly persuasive. But even the appearance of pursuing impeachment over a policy disagreement can set a dangerous precedent. And establishing the president’s motives by weighing the underlying policy interests only plays into these perceptions, to Trump’s distinct advantage.
For these reasons, House managers should consider giving other, less subjective indicators of the president’s motives a more central role in their case. Fortunately, the record already contains evidence of several that are part of the policy-making process that presidents (including Trump) generally use to develop and execute foreign policy. And while they may not warrant impeachment independently or be beyond reasonable explanation, departures from those processes designed to ensure that U.S. foreign policy serves the public interest can be compelling evidence that Trump’s motives lay elsewhere.
First is whether the president complied with the laws and regulations governing the policy process, especially those intended to promote transparency and accountability. Such compliance not only shows whether the president abided by his constitutional duty to “take Care that the Laws be faithfully executed,” but may be a sign of whether the president believed his or her policy would bear the heightened scrutiny such rules help to promote, before both Congress and the electorate.
Second is the extent to which the president ran his proposed policy through the established policy process. Congress provides the president with both career bureaucrats and politically appointed advisors so that his policy decisions can be informed by experts who are pledged to advise on how to best advance U.S. public interests. While the president is not obligated to follow their advice, not vetting his decision with these policy experts—through the process the president himself has set up for that purpose—may again be a sign that the president was not motivated by a desire to maximize the public interest.
Third is whether the president implements his policy through existing channels used for that purpose. The federal government maintains processes for executing various types of global policies that uses existing foreign contacts and connects relevant implementing officials across governments in order to maximize those policies’ effectiveness. If a president fails to pursue a policy through these channels, then this may be a sign that the purported underlying policy interest is little more than pretext.
In Trump’s case, there is evidence that his administration adopted a dubious legal interpretation to evade congressional reporting requirements on his decision to withhold Ukrainian security assistance. And numerous witnesses have testified that Trump and his associates developed and executed their Ukraine scheme through an “irregular channel” that sidelined relevant policy advisors and implementers, including well-established processes for facilitating legitimate law enforcement cooperation. More evidence may yet come forward, especially if Senate Democrats are able to call witnesses—and a renewed focus on the policy process only strengthens the case that such testimony is necessary.
Some will no doubt argue that Trump’s evasion of this process is warranted on the grounds that “unelected bureaucrats” who disapprove of his policy might otherwise have obstructed his agenda. But such Deep State myths ring hollow when one considers that Trump largely sought to evade officials he appointed and processes he put in place, both of which he regularly employs in other contexts and have been routinely funded and authorized by Congress, even when controlled by the president’s allies. These narratives are valuable to Trump and his supporters because they can justify nearly any action simply by villainizing the status quo. The House shouldn’t shy away from confronting them, but take them head-on for what they are: pretext for presidential misconduct.
Emphasizing the procedural irregularities surrounding Trump’s decisions on Ukraine is unlikely to improve the odds that he will be removed or disqualified by the Senate. But it will help make clear why this impeachment is no mere policy dispute, especially to future congresses who may look back to the present moment for guidance in pursuing their own foreign affairs impeachments. And perhaps most importantly, it will do so while reinforcing the expectation that presidents should exercise due diligence when wielding their immense authority over U.S. foreign policy—and that failing to do so can be valid grounds for questioning whether they are making a good-faith effort to comply with their constitutional duties.
Source : Scott R. Anderson Link to Author