The House Did Not Impeach President Trump for Acting Like a Politician

He was impeached not (as Professor Josh Blackman argues) for acting with mixed motives, but for failing to do so.

Yet happily, none of that happened here. Congress did not impeach Trump for actions that were based on both policy concerns and political calculations. Nor did Congress attempt to sort through Trump’s rationales for his Ukraine scheme, in order to determine whether his primary motive was political.

Josh gives this critical distinction short shrift, describing Trump’s conduct that led to impeachment as “asking a foreign leader to investigate potential corruption” and “insufficiently publicly spirited.” If those characterizations were accurate, I would agree with Josh wholeheartedly. But they are wrong.

In short, it’s not Trump’s “dueling” motives (as Josh puts it), but the lack thereof, that makes Trump’s conduct impeachable. He was impeached because he acted solely for his own political interest, without any policy purpose.⁴

Of course, it is possible that Congress read the evidence incorrectly (thought I doubt it) and that Trump acted for mixed motives rather than solely for personal gain; after all, the House Democrats are not unbiased when it comes to Trump. Luckily, however, Josh himself has offered up the perfect solution for that: electoral politics. The President is not the only federal official whose bad political choices can be punished at the ballot box; voters can “reward or punish” their Members of Congress and Senators for bad decisions.

Hence, I believe Josh has it exactly backwards: rather than call on Congress to let voters decide whether to punish Trump for his abuse of power, we should allow Congress to judge for itself whether Trump’s conduct is impeachable — and, come November, if the voters disagree, they can throw the bums out.

My second disagreement with Josh’s op-ed relates to his characterization of Trump’s conduct. Josh’s article is explicitly premised on the view that Trump’s Ukraine scheme was “otherwise lawful.” ⁵ This assumption is probably wrong.

Since it is likely that Trump repeatedly broke the law here, his impeachment would not set a precedent that might lead to impeachment of other politicians who engage in “otherwise legal conduct” that happens to be “politically motivated.” For this same reason, Josh’s Lincoln and LBJ examples appear to be inapplicable; there is no reason to believe that Lincoln’s or LBJ’s conduct described above broke any other laws. Thus, Presidents who act with dual — political and policy — motives when engaging in otherwise legal conduct would not be “imperil[ed]” by Trump’s impeachment and removal.

Moreover, even if Trump’s Ukraine scheme was not technically illegal, it bordered on illegality. A POTUS has wide discretion in foreign affairs, but that discretion does not allow him to subvert the will of Congress — here, by refusing to deliver foreign aid to Ukraine as approved by Congress. Such thwarting of Congress’s will can be, in itself, an abuse of power.

Josh’s paragraph about the Take Care Clause, though written to address immigration enforcement (or lack thereof), perfectly captures why Trump’s Ukraine scheme is impeachable even if it was not technically illegal.⁸ Even if Trump’s refusal to enforce the law (by holding up Ukrainian aid payments) did not actually run afoul of the law, it certainly “lean[ed] towards thwarting Congress’s statutes” — which Josh has described as an abuse of power. Accordingly, Congress could reasonably conclude that, Trump’s hold up of Ukrainian aid meant that his discretion had “turn[ed] into an abuse of power.” This is not likely true for most Presidential actions, and in particular, for the actions by LBJ and Lincoln that Josh cites. Thus, there is no concern that future Presidents might be imperiled by Trump’s impeachment.

In sum, I share Josh’s concerns that Congress should not impeach a President simply for acting with a dual purpose, part political and part policy-oriented. But that is simply not what happened here. President Trump acted solely for political gain, without any pretense of advancing legitimate foreign policy objectives — and he probably broke the law. Congress was right to impeach him, would be right to remove him, and doing so would not set a bad precedent for future Presidents. To the contrary, removing Trump might just “save the Republic in free-fall” — which is, Josh says, impeachment’s purpose.

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