Among the most delicate choices the framers made in drafting the Constitution was how to deal with a president who puts himself above the law. To address that problem, they chose the mechanism of impeachment and removal from office. And they provided that this remedy could be used when a president commits “Treason, Bribery, or other high Crimes and Misdemeanors.”
That last phrase — “high Crimes and Misdemeanors” — was a historical term of art, derived from impeachments in the British Parliament. When the framers put it into the Constitution, they didn’t discuss it much, because no doubt they knew what it meant. It meant, as Alexander Hamilton later phrased it, “the abuse or violation of some public trust.”
Simply put, the framers viewed the president as a fiduciary, the government of the United States as a sacred trust and the people of the United States as the beneficiaries of that trust. Through the Constitution, the framers imposed upon the president the duty and obligation to “take Care that the Laws be faithfully executed” and made him swear an oath that he would fulfill that duty of faithful execution. They believed that a president would break his oath if he engaged in self-dealing — if he used his powers to put his own interests above the nation’s. That would be the paradigmatic case for impeachment.
That’s exactly what appears to be at issue today. A whistleblower in U.S. intelligence lodged a complaint with the intelligence community’s inspector general so alarming that he labeled it of “urgent concern” and alerted the Office of the Director of National Intelligence. Though the details remain secret, apparently this much can be gleaned: The complaint is against the president. It concerns a “promise” that the president made, in at least one phone call, with a foreign leader. And it involves Ukraine and possible interference with the next presidential election. The complaint is being brazenly suppressed by the Justice Department — in defiance of a whistleblower law that says, without exception, the complaint “shall” be turned over to Congress.
We also know this: As he admitted Thursday night on CNN, the president’s personal lawyer, Rudolph W. Giuliani, has been trying to persuade the Ukrainian government to investigate, among other things, one of Trump’s potential Democratic opponents, former vice president Joe Biden, and Biden’s son Hunter about the latter’s involvement with a Ukrainian gas company.
Trump held up the delivery of $250 million in military assistance to Ukraine, which is under constant threat from neighboring Russia. He had a phone conversation on July 25 with President Volodymyr Zelensky of Ukraine. According to the Ukrainian government, the call included a discussion of Ukraine’s need to “complete investigation of corruption cases, which inhibited the interaction between Ukraine and the USA.”
So it appears that the president might have used his official powers — in particular, perhaps the threat of withholding a quarter-billion dollars in military aid — to leverage a foreign government into helping him defeat a potential political opponent in the United States.
If Trump did that, it would be the ultimate impeachable act. Trump has already done more than enough to warrant impeachment and removal with his relentless attempts, on multiple fronts, to sabotage the counterintelligence and criminal investigation by then-special counsel Robert S. Mueller III and to conceal evidence of those attempts. The president’s efforts were impeachable because, in committing those obstructive acts, he put his personal interests above the nation’s: He tried to stop an investigation into whether a hostile foreign power, Russia, tried to interfere with our democracy — simply because he seemed to find it personally embarrassing. Trump breached his duty of faithful execution to the nation not only because he likely broke the law but also because, through his disregard for the law, he put his self-interest first.
The current whistleblowing allegations, however, are even worse. Unlike the allegations of conspiracy with Russia before the 2016 election, these concern Trump’s actions as president, not as a private citizen, and his exercise of presidential powers over foreign policy with Ukraine. Moreover, with Russia, at least there was an attempt to get the facts through the Mueller investigation; here the White House is trying to shut down the entire inquiry from the start — depriving not just the American people, but even congressional intelligence committees, of necessary information.
It is high time for Congress to do its duty, in the manner the framers intended. Given how Trump seems ever bent on putting himself above the law, something like what might have happened between him and Ukraine — abusing presidential authority for personal benefit — was almost inevitable. Yet if that is what occurred, part of the responsibility lies with Congress, which has failed to act on the blatant obstruction that Mueller detailed months ago.
Congressional procrastination has probably emboldened Trump, and it risks emboldening future presidents who might turn out to be of his sorry ilk. To borrow John Dean’s haunting Watergate-era metaphor once again, there is a cancer on the presidency, and cancers, if not removed, only grow. Congress bears the duty to use the tools provided by the Constitution to remove that cancer now, before it’s too late. As Elbridge Gerry put it at the 1787 Constitutional Convention in Philadelphia, “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them.” By now, Congress should know which one Trump is.
~George T. Conway III is a lawyer in New York. Neal Katyal, a law professor at Georgetown University, previously served as the acting solicitor general of the United States.