The House Intelligence Committee report released by chairman Rep. Adam Schiff (D-CA) on Tuesday cites no constitutionally permissible grounds for impeachment against President Donald Trump — other than tweets.
Article II, Section 4 of the U.S. Constitution provides that impeachment shall be for “Treason, Bribery, or other high Crimes and Misdemeanors.” Notably, the Framers of the Constitution ruled out “maladministration” as a reason.
In Schiff’s 300-page report, Democrats failed to cite any specific grounds for impeaching the president.
Notably, though Schiff and others attempted to argue that the president had possibly committed “bribery” by allegedly asking the president of Ukraine to investigate former Vice President Joe Biden in exchange for U.S. aid, there is no discussion of bribery whatsoever in the report — other than references to Trump lawyer Rudy Giuliani’s claims that Biden might be guilty of bribery because his son was on the payroll of Ukrainian gas giant Burisma.
The only references to any “crimes” allegedly committed by the president is a discussion of “witness intimidation.”
Schiff and his Democrat majority attempt to argue that President Trump committed that crime by tweeting criticism of several witnesses against him, including calling them “Never Trumpers” and drawing attention to their testimony.
The report also cites Trump’s tweets criticizing former U.S. Ambassador to Ukraine Marie Yovanovitch during her testimony, which clearly did not obstruct her testimony and which she would not have known about had Schiff not read them — partially — to her in the middle of the hearing. (Among Trump’s criticisms was that “the new Ukrainian President spoke unfavorably about her in my second phone call with him,” which Yovanovitch could not explain.)
Everywhere Marie Yovanovitch went turned bad. She started off in Somalia, how did that go? Then fast forward to Ukraine, where the new Ukrainian President spoke unfavorably about her in my second phone call with him. It is a U.S. President’s absolute right to appoint ambassadors.
— Donald J. Trump (@realDonaldTrump) November 15, 2019
The report also cites, as an example of witness intimidation, Trump re-tweeting a reference to testimony by Lt. Col. Alexander Vindman, confirmed that Ukraine offered him the post of defense minister on three occasions.
— Dan Scavino Jr.🇺🇸 (@Scavino45) November 19, 2019
The report also cites, in a general sense, the crimes of “obstructing Congress,” “concealing material facts,” and “retaliating against employees who provide information to Congress.” Democrats provide no real evidence to support the latter two charges. They merely claim that Trump threatened retaliation by tweeting a quote from Rush Limbaugh about “dismissing everybody involved from the Obama holdover days,” which Trump never did.
….and Taylor, dismissing everybody involved from the Obama holdover days trying to undermine Trump, getting rid of those people, dismissing them, this is what it looks like. It was never going to be claen, they were never going to sit by idly and just let Trump do this!” Rush L
— Donald J. Trump (@realDonaldTrump) November 16, 2019
As for “obstructing Congress,” Democrats did not wait for the courts to adjudicate balance-of-power disputes between the executive branch and the legislative branch over the requested information and witnesses: the rush to conclude the impeachment inquiry in a hurry, even without key witnesses, was their decision and theirs alone.
The Trump administration has also maintained that the House impeachment inquiry is not legitimate on procedural grounds. It began without any formal authorization; it was conducted largely in secret, by the Intelligence Committee and not the Judiciary Committee; and it departed from precedent by refusing to grant the president due process rights, such as representation by counsel in hearings. That is why the White House has not complied.
Moreover, as liberal law professor and former Obama administration official Cass Sunstein argued in 2017, “obstructing Congress” is not sufficient grounds for impeachment if the inquiry itself is not legitimate.
He wrote: “Presidents should cooperate with legitimate investigations, but it is not a high crime or misdemeanor to refuse to cooperate with a congressional investigation into an offense that is not independently impeachable. Congress cannot gin up an impeachable offense by investigating an offense that is not impeachable, and then encountering presidential resistance.” Democrats have offered no independently impeachable offense — at all.
Shifts report never explicitly accuses Trump of “abuse of power.” But even that is not impeachable — firstly because Republicans have argued that Trump was not seeking a political favor from Ukraine, but exercising a constitutional duty to fight corruption and election interference; and secondly because it is not an impeachable offense.
As Sunstein wrote: “Almost every American president has, on more than one occasion, passed the bounds of his power, in the sense that his administration has done something that it is not lawfully entitled to do.”
So instead of “Treason, Bribery, or other high Crimes and Misdemeanors,” Democrats are trying to impeach the president on the basis of tweets he posted in his own defense against their own, arguably partisan, inquisition.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.