Wrapping Up Impeachment – WSJ

Attorney Alan Dershowitz speaks to the press in the Senate Reception Room during the Senate impeachment trial at the U.S. Capitol, Jan. 29.


Photo:

Mario Tama/Getty Images

The Senate will acquit President

Trump

on both House articles of impeachment. That much even

Adam Schiff

knows. The Senate trial is now all about the election and impeachment precedents, which are two of many good reasons for cleaning up the trial distortions and wrapping up the show this week.

Start with the media claim that defense lawyer

Alan Dershowitz

said a President can do anything to further his re-election as long he thinks it is in the national interest. This isn’t what he said. The Harvard professor said explicitly that a President can be impeached for criminal acts. He could be impeached for soliciting a financial bribe, for example, or seeking a campaign contribution from a foreign source. He could also be impeached for exceeding his constitutional authority.

Mr. Dershowitz differs from the press in believing that a President cannot be impeached for acts of foreign policy that may be in his personal political interest but aren’t themselves impeachable acts. Presidents conduct foreign policy in what they think is the national interest, but they also hope it will be in their political interest. Presidents typically act from “mixed motives,” as Mr. Dershowitz put it, that are difficult to discern or to separate the high-minded from the self-interested.

It is thus too low a constitutional bar for the House to claim, as it does, that Mr. Trump can be impeached because Democrats think his motives were corrupt. The acts themselves must qualify as “high crimes and misdemeanors.” Mr. Trump’s acts don’t qualify—because asking aid recipients to investigate corruption isn’t illegal, and in any case the aid to Ukraine was delivered on time and no investigation of

Joe Biden

was started. This does not condone Mr. Trump’s request, which was reckless and dumb, but it isn’t an impeachable offense.

GOP Senator

Susan Collins

exposed another distortion when she asked House managers if Mr. Trump broke any law, and if so why they didn’t include specific bribery and honest-services fraud statutes in the impeachment articles.

Rep. Hakeem Jeffries

dodged the statute issue by suggesting that the “abuse of power” article somehow encompassed these crimes. Mr. Schiff added that “we outlined the facts that constitute bribery in the article, but ‘abuse of power’ is the highest crime.”

But acts are either crimes or not. The House can’t have implied articles of impeachment, or sleeper articles that you see if you read between the lines. The President can’t be expected to defend himself against charges the House didn’t include.

The real reason House managers didn’t include bribery or honest-services fraud is because they know Mr. Trump’s acts would not qualify under the Supreme Court’s definition of those crimes. The Court requires a specific kind of quid pro quo that didn’t take place. So the managers settled for the vague and subjective “abuse of power,” which turns out to be whatever the House managers say it is.

Another abuse is Mr. Schiff’s offer to abide by any ruling by Chief Justice

John Roberts

on evidence and witnesses if the President’s lawyers do the same. Mr. Schiff wants the President’s lawyers to cede claims of executive privilege when he knows the Chief Justice has no judicial authority in the trial.

The Chief is in the Senate as the presiding officer, not as an Article III judge. The Senate can delegate certain trial powers to him if it wants, but it can’t give him more power than the Senate has. And the Senate does not have the power to deny a President’s claims of executive privilege.

Which brings us to the issue of witnesses—especially whether to subpoena former national security adviser

John Bolton.

Democrats claim to want witnesses, but they don’t if it means calling Hunter or Joe Biden. They want Republicans to vote to end the trial without witnesses so they and the impeachment press can cry “coverup” from here to the election.

Our view is that whatever Mr. Bolton has to say won’t change the outcome of the trial. The

New York Times

report of what is in the draft of Mr. Bolton’s book doesn’t include impeachable offenses. Mr. Bolton’s account of Mr. Trump’s behavior may be highly critical, but that is something for voters to assess and render a verdict on in November.

The country will be best served now if the Senate ends the trial promptly without witnesses and with a vote to acquit. The verdict would repudiate a House impeachment that has violated constitutional norms and distorted the separation of powers.

Potomac Watch: The whole impeachment affair was a series of major fouls. The best outcome is a speedy acquittal. Image: Samuel Corum/Getty Images

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