Former acting AG Matt Whitaker on impeachment: “Abuse of power is not a crime”

It seems inevitable in hindsight that the Trump era would eventually produce a Republican talking point as bad as What’s wrong with abuses of power?

Two points in Whitaker’s defense, though. First, all he’s really stating here is the logic of “bad but not impeachable” that’s already been adopted by Republican senators like Rob Portman and Lamar Alexander. The worse the facts get for Trump and the GOP, the more eager Senate Republicans will be to dispense with them altogether and frame their inevitable decision to acquit the president on legal grounds. Yeah, fine, okay, he wanted a quid pro quo with Ukraine in which they’d get their military aid if and only if Trump got some talking points he could use about Joe Biden’s corruption. That’s bad, but it’s not quite so bad that it’s impeachable. That’s an abuse of power, perhaps, but it’s not so abusive that it amounts to a crime. Critics can laugh at Whitaker’s unhelpful phrasing but at the end of the day this is the argument that’ll give enough Senate GOPers cover politically to let Trump off the hook.

Second, he’s not saying (I think?) that he believes Trump’s handling of Ukraine was an abuse of power. He’s addressing the rationale that House Democrats are reportedly planning to use for the final articles of impeachment. Whitaker’s making a constitutional point that’ll resonate with plenty of righties: If the Framers had wanted the president to be removable for “abuse of power,” they wouldn’t have used the language of actual crimes in Article II’s impeachment clause. Treason, bribery, and “other high crimes and misdemeanors” are grounds for cutting the executive’s term in office short, not “abuse of power.” Surely Democrats need to show that Trump committed an actual crime, no?

The problem with arguing that impeachment shouldn’t take place absent proof of a crime is that there are probably nightmare scenarios we could concoct for presidential behavior in which (a) no crime has been committed but also (b) the president obviously needs to be stripped of his power before he does more damage. A natsec lawyer who knows the U.S. Code could probably think of half a dozen off the top of their heads, but here’s one that occurs to me that might qualify: What if the president decided to share the nuclear codes with a friend/girlfriend, either for a laugh or to impress them? Would that be a crime? It’s not treason because the friend isn’t an enemy of the United States. It’s not leaking classified information because the president can’t leak, by definition. He’s authorized to declassify any information he wants. It’s not bribery because he received nothing in return for sharing the information. So what’s the crime?

There’s no crime — I think. But should a president who did something as reckless as sharing the nuclear codes nonetheless be impeached for it? Yes, of course. For the simple reason that if he’s willing to cross that line once, he might be willing to cross it again — or to cross an entirely different, even worse line if allowed to remain in office. Whether you want to call it “abuse of power” or something else, I think that’s the basic question on impeachment and removal: Is the president guilty of behavior so alarming and inappropriate that we can’t trust him to carry out his duties responsibly going forward? If it’s true that Trump was using military aid to squeeze a foreign country to help give him an advantage over the Democratic frontrunner in the upcoming election, then sure, one might reason that he’ll continue to abuse his power as president over the next year to increase his advantage. You can’t leave it to voters in that case to issue a verdict on his behavior since the very improprieties he’s accused of are aimed at affecting the vote itself.

But like I say, Whitaker and the GOP have an answer to that. If the Framers wanted to make “alarming behavior” impeachable, they would have said that. Where’s the “high crime or misdemeanor”?

Trump’s not getting convicted but that doesn’t mean this fiasco won’t end helping Democrats politically. A new Quinnipiac poll today finds support for the House’s impeachment inquiry rising to 55 percent and support for impeachment itself inching up to 48 percent. Meanwhile Reuters finds support for impeachment at 46/40, with independents at 45/32. If Pelosi gets out of this with nothing worse happening to her party than the Senate letting Trump off the hook and most of the public believing that he did something bad enough to warrant removal, she’ll consider it a moral victory and a boost for the 2020 effort to oust Trump.

Update: Chris Field of the Blaze reminds me that “abuse of power” was sufficiently impressive to House Republicans as grounds for impeachment 20 years ago that they included it in the final articles against Bill Clinton.