“‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus,” posted in N.Y. Times on 1.21.20: “As President Trump’s impeachment trial opens, his lawyers have increasingly emphasized a striking argument: Even if he did abuse his powers in an attempt to bully Ukraine into interfering in the 2020 election on his behalf, it would not matter because the House never accused him of committing an ordinary crime.
“Their argument is widely disputed. It cuts against the consensus among scholars that impeachment exists to remove officials who abuse power. The phrase ‘high crimes and misdemeanors’ means a serious violation of public trust that need not also be an ordinary crime, said Frank O. Bowman III, a University of Missouri law professor and the author of a recent book on the topic.
“’This argument is constitutional nonsense,’ Mr. Bowman said. ‘The almost universal consensus — in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since — has been that criminal conduct is not required for impeachment.”
But the argument is politically convenient for Mr. Trump. For any moderate Republican senator who may not like what the facts already show about his campaign of pressure on Ukraine, the theory provides an alternative rationale to acquit the president.
“Indeed, if it were true, then there would also be no reason to call witnesses like John R. Bolton, Mr. Trump’s former national security adviser, because what he and others know about Mr. Trump’s motivations and intentions in his Ukraine dealings would not affect the outcome of the trial.”
