Articles of Impeachment: Broad or Narrow?

Should Democrats throw the kitchen sink at Trump, or keep the impeachment case short and simple?


Thursday, Speaker Pelosi announced that the House would go ahead with drafting articles of impeachment. The main debate at this point is how broad or narrow those articles should be.

Obviously, there will be an article about the Ukraine scheme, and almost certainly an article about Trump’s efforts to obstruct Congress’ investigation of the Ukraine scheme. The most obvious additional article could be built around the obstruction-of-justice evidence in the Mueller Report.

Beyond that, Democrats could throw the kitchen sink at him. NYT columnist David Leonhardt consulted legal experts and came up with eight articles of impeachment:

  1. Obstruction of justice. This count would include the obstructions laid out in Part II of the Mueller Report, as well as hiding evidence by improperly classifying the call notes on the Ukraine call.
  2. Contempt of Congress. This refers to Trump’s blanket refusal to cooperate with Congressional oversight.
  3. Abuse of power. This is where the bulk of the Ukraine scheme fits.
  4. Impairing the administration of justice. Attempting to use the power of the executive branch to hound his political opponents.
  5. Acceptance of emoluments. “Trump continues to own his hotels, allowing politicians, lobbyists and foreigners to enrich him and curry favor with him by staying there.”
  6. Corruption of elections. Michael Cohen is already in jail for campaign finance violations related to the Stormy Daniels payoff. He claimed to have been carrying out Trump’s orders.
  7. Abuse of pardons. “He has encouraged people to break the law (or impede investigations) with a promise of future pardons.” The Mueller Report discusses how hints at a pardon may have encouraged Paul Manafort not to cooperate (which is a big reason Mueller never got to the bottom of the Trump/Russia connection). But he also has told border enforcement officials not to worry about breaking the law.
  8. Conduct grossly incompatible with the Presidency. “He lies constantly, eroding the credibility of the office. He tries to undermine any independent information that he does not like, which weakens our system of checks and balances. He once went so far as to say that federal law-enforcement agents and prosecutors regularly fabricated evidence — a claim that damages the credibility of every criminal investigation.”

I have no trouble believing that Republicans would have impeached Obama if they could have mustered a charge as strong as any of those eight. Who can forget Rep. Blake Farenthold discussing the possibility of impeaching Obama over the totally phony birth-certificate issue? Or Rep. Kerry Bentivolio telling his constituents that it would be “a dream come true” to impeach Obama, but that unfortunately “you’ve got to have the evidence”. Rep. Mark Gaetz of Florida is still  talking about impeaching Obama, nearly three years after his term ended.

The danger in the broad approach is that the short-and-simple story of the Ukraine extortion scheme — something that is easy to grasp, clearly proven, and obviously wrong — can get lost. It gives credence to Trump’s talking point that Democrats have just been looking for anything they can possibly find to hang an impeachment on. “Conduct grossly incompatible” happens every day, but does it really call for impeachment?

On the other hand, if Trump is impeached just for Ukraine, does that send the message to future presidents that all the other stuff is OK? Does it tell 2020 voters that the other examples of corruption aren’t really serious?

Meanwhile, Lawrence Tribe argues that broad/narrow is a false choice:

The impeachment and removal of this president is necessary because Trump has been revealed as a serial abuser of power, whose pattern of behavior — and “pattern” is the key word, as Rep. Mary Gay Scanlon (D-Pa.) and House Judiciary Chairman Jerrold Nadler (D-N.Y.) emphasized during Wednesday’s hearing — makes clear he will repeat the same sequence again and again.

And Josh Marshall says something similar:

You can’t take any of the Ukraine stuff in isolation. Trump wasn’t a more or less normal President and then suddenly he did something totally bonkers. Both in soliciting foreign assistance in his election campaigns and obstructing the administration of justice, Trump has done all of this before. This is not only critical to establishing a pattern of conduct, which speaks to the question of guilt. It also provides powerful evidence that this is what he does and that he will unquestionably do it again.

This relates to the conclusion I came to in “What is Impeachment For?“, an article I wrote in June 2018 for the purpose of setting my impeachment standards before I knew what conclusions the Mueller investigation would reach. Impeachment shouldn’t be about punishing past wrong-doing; it should be about heading off a continuing threat to the Republic. If Trump’s abuse of power is over and done with, let the voters (and future prosecutors) deal with it. But if it’s ongoing, Congress should take that power away from him as soon as possible.

This argument points to a short list of articles, each of which includes multiple examples that establish a pattern of misbehavior. “Do us a favor, though” is an example of seeking foreign interference in our elections, but it’s also part of a pattern of seeking foreign interference that goes back to “Russia, if you’re listening” in 2016.

Then we run into the question of whether the less egregious articles of impeachment could pass the House, and what it would mean if they didn’t. On the one hand, debating a long list of articles, but passing only two or three, might show the public that Democrats are taking their constitutional responsibilities seriously. (Republicans wrote four articles of impeachment against Clinton, but passed only two.) Democrats representing purple districts could tell their constituents, “I voted for some articles and against others”, and sound like moderates rather than Trump-haters. But is it a good look if the Democrats are split on some counts, or should they try to stay united throughout the process?

Finally there’s this: A subpoena for the Senate impeachment trial would be hard to ignore, so that’s probably the quickest way to get testimony from people like Don McGahn. If there are key witnesses we’re not likely to hear from any other way, it might be worth including a related article of impeachment just to get them on the stand.

Personally, I’d go for three articles: Ukraine, obstruction of Congress’ Ukraine investigation, and obstruction of the Mueller investigation. Wavering Democrats could vote against the Mueller article, if they think they must, to give themselves cover back home.

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Comments

  • Barbara J Mantegani  On December 9, 2019 at 8:33 am

    I would add the REPEATED and CONTINUING violations of the Emoluments Clause, which are pretty darn easy to prove, and hard to wave away. If your next door neighbor is able to get his potholes filled because he buys all of his groceries at the mayor’s grocery store, but you can’t because you don’t, that would seem to be an analogy that might resonate with those hard core Trump supporters. Or maybe not, there may be no bottom to their willingness to accept corruption if it means owning the libs…..

    • Kaci  On December 9, 2019 at 9:08 am

      Was coming here to say exactly this!

  • Mwekaman  On December 9, 2019 at 9:20 am

    Hard to prove tit for tat violations related to hotel stays.

    • Kaci  On December 9, 2019 at 9:23 am

      But it seems pretty clear that he’s profiting from the office financially.

      • alandesmet  On December 9, 2019 at 3:25 pm

        Indeed. It’s pretty clear that the foreign emoluments clause exists to defend against a conflict of interest, without regard to if the President actually lets the money influence their Presidential actions. Given the President’s power and potential ability to conceal a tit-for-tat action, it seems wise.

  • Roger  On December 9, 2019 at 11:11 am

    The military refueling in Scotland near his property was rather egregious. I’ve thought he was impeachable from Day 1 when he failed put his properties in a blind trust, then made it pretty clear that staying at his properties would benefit his foreign government visitors.

  • Guest  On December 9, 2019 at 11:43 am

    The Tribe and Marshall points you quote lead me in the opposite direction as you, Doug, namely, that you’d want to demonstrate the pattern as broadly as the evidence suggests, which means narrowing down to Ukraine and Mueller leaves you with less than a full picture/pattern. The articles should be as many and as detailed as the abuses documented. Recommend Jonathan Chait’s “The (Full) Case for Impeachment” in October for New York magazine as a companion piece to Leonhardt.

    If the goal is to stop ongoing abuses, the public support has to be stronger. As much as I think the Mueller and Ukraine stuff is impeachable on their own merits, I can see a lot of the public waving it off because “the other side does the same stuff” and Trump just did it clumsily.

    Stepping back, the immediate victims of the two cases can be seen as the DNC’s own Clinton and Biden. Myopic focus on Mueller/Ukraine kinda looks like the Democratic leadership are only moving because Trump went after one of their own, like they’re defending themselves rather than the people/constitution. Not a good look. Just an observation, but one I can’t shake, and haven’t seen it addressed.

    • Jacqueline (Bonin) Gargiulo  On December 9, 2019 at 1:54 pm

      Good point, especially with the rhetoric from the GOP side of the equation.

    • weeklysift  On December 9, 2019 at 2:30 pm

      I see the possibility of looking at it that way, but that’s not how I look at it. All the other stuff — particularly the emoluments — you can approach by getting the information out to the public and making it an issue in the next election. But obstructing an investigation means that the information never gets out, and cheating in an election blows away the whole take-it-to-the-People strategy.

  • Jacqueline (Bonin) Gargiulo  On December 9, 2019 at 1:51 pm

    When this all started, I was of the mind that pattern could and needed to be established. I’m still there, especially after hearing on PBS the critical interviewee recognize the case would be stronger with the Mueller Part II. So, I’m with you on the three, though I would be open to others that might fit the pattern of behavior approach.

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