The good news for fans of legal combat is that the Senate trial promises to be entertaining. The bad news is that the Trump team’s constitutional arguments can barely pass a straight‐face test.
The first article of impeachment the House passed last month charges Trump with abusing his power by withholding military aid unless and until Ukrainians announced an investigation into Trump’s leading 2020 rival, Joe Biden. In its trial brief, the Trump defense team responds by calling abuse of power a “novel,” “concocted” and “made‐up theory” that “fails to state an impeachable offense because it does not rest on a violation of an established law.”
All of this would have been news to James Madison, “Father of the Constitution” and a central figure in the debates over its impeachment clauses. It would have been news as well to other Framers, like Edmund Randolph, who lauded “the propriety of impeachments” on the grounds that “The Executive will have great opportunitys of abusing his power.” Madison understood “high crimes and misdemeanors” to cover lawful but otherwise abusive exercises of presidential power, like corrupt pardons or “wanton removal of meritorious officers.”
At the Virginia Ratifying Convention in 1788, when George Mason worried that the president’s broad pardon power would allow him to lawfully “pardon crimes which were advised by himself,” Madison insisted that impeachment was the appropriate remedy. He even saw impeachment as a method for disciplining “an unworthy president” who hires bad officers and fires good ones; “such abuse of his power” was, he affirmed, worthy grounds for impeachment.
The Trump team’s notion that impeachment requires a “violation of established law” is itself novel. As Justice Joseph Story noted in 1833, since the Constitution’s ratification, no one had been heard to argue that impeachable offenses were limited to what could be found “in the statute book of the Union.” In fact, over our entire constitutional history, fewer than a third of the impeachments approved by the House “have specifically invoked a criminal statute.”
The Trump trial brief is chock‐full of tendentious and unsupportable arguments. The president’s counsel complain that “House Democrats do not have a single witness who claims, based on direct knowledge,” that Trump conditioned military aid on an investigation of the Bidens. Since it was the president’s order to stonewall the impeachment inquiry that prevented such witnesses from testifying, that argument smacks of the kid who murders his parents and throws himself on the mercy of the court as an orphan.