Trump impeachment defense is dangerous. Abuses of power could crack America's foundation.

Imagine that Democrats nominate Joe Biden, or Elizabeth Warren, or Mike Bloomberg, or anyone else in the field as their candidate for president. Now imagine that President Donald Trump, who once joked about shooting someone on Fifth Avenue, tweets out the following: “Crazy (fill in candidate name here) would be terrible for America. Can someone help me out here? Don’t worry, my pardon power is absolute.”

That’s a vague ask, maybe even a joke. But if you take the arguments of Trump’s defenders to their logical extreme, since granting a pardon is not a crime, even promising a pardon for "help" that could be deadly for a political opponent would not be grounds for impeachment. Seriously, that is the logic of the argument being offered by Trump and his team. And if the Senate accepts that argument, it will set a dangerous precedent that threatens the very foundations of American government.

The question is being posed as part of a scholarly debate about the meaning of the Constitution. What does the text mean when it says a president can be impeached for “high crimes and misdemeanors”? Trump’s defenders have filed a brief in the Senate arguing that this means he can only be impeached for a criminal offense. They say that even if he did abuse his presidential authority by trying to force Ukraine to start an investigation of his political opponent’s son, that’s not an impeachable offense — because it’s only an abuse of power, not a crime. Since the House of Representatives never accused him of committing an ordinary crime, Trump says the impeachment charges should be dismissed.

Trump response is frivolous

There is every reason to think that the president’s argument is legally frivolous, what legal scholar Frank Bowman calls “constitutional nonsense.” Virtually every legal scholar and historian in America agrees. There is no requirement that impeachment be based on a statutory crime.

For one thing, at the time the impeachment clause was written, there were no statutory crimes yet; Congress didn’t pass the first criminal statutes until several years later. For another, the English parliamentary history that was the backdrop for the Constitution records many cases where a public official’s abuse of power was deemed an impeachable offense.

Smoke and mirrors: You don't have to break a law to be impeached. Trump's defenders need a better argument.

And, perhaps most important, American precedent is squarely to the contrary. Several of the articles of impeachment against President Andrew Johnson alleged conduct that was not a criminal act — including one impeaching him for delivering "with a loud voice certain intemperate, inflammatory and scandalous harangues” that were an “attempt to bring into disgrace, ridicule, hatred, contempt and reproach the Congress of the United States.”

President Donald Trump, Ivanka Trump and Jared Kushner at the World Economic Forum in Davos, Switzerland, on Jan. 21, 2020.
President Donald Trump, Ivanka Trump and Jared Kushner at the World Economic Forum in Davos, Switzerland, on Jan. 21, 2020.

But now is not the time for treating the president’s assertion as a mere dispute among scholars. What is couched as a legal debate is really a debate about the fundamental premise of our democracy. Does the president owe a duty to the public? When he swears to “faithfully execute” the office of the presidency and “preserve, protect, and defend” the Constitution, is that an enforceable promise or are they mere words? If President Trump is to be believed, he thinks they are no more than vague promises to which he cannot be held accountable — so long as he avoids committing a crime.

Abuse of authority worse than crimes

But that really can’t be right. As Alexander Hamilton put it in the Federalist Papers, impeachable conduct are “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust,” and “political” offenses that injure society.

Common sense says abuse of authority is even more dangerous than criminal conduct. In 1974, at the height of the Watergate crisis, professor Charles Black of Yale wrote a short incisive handbook on impeachment. He asked: “Suppose a president were to move to Saudi Arabia, so he could have four wives, and were to propose to conduct the office of presidency by mail and wireless from there. This would not be a crime, provided his passport were in order. Is it possible that such gross and wanton neglect of duty could not be grounds for impeachment and removal?”

Watergate downside: We found crimes. Now people think that's what it takes to impeach.

And yet that is precisely what President Trump suggests. He could not be impeached for, say, refusing to fight a Russian invasion of Alaska; or for declassifying the name of every American secret agent abroad; or for announcing his intention to launch nuclear missiles at Great Britain in response to a perceived insult from Queen Elizabeth.

Or for promising to pardon someone who "helped him out" by taking a political rival off the field, in some way, shape or form.

That is not the America we want. Even if the Senate chooses to acquit President Trump, it must reject his overbroad assertion of immunity from scrutiny and accountability. Our democracy depends on it.

Paul Rosenzweig, a senior fellow in the National Security and Cyber Security Program at the R Street Institute, was senior counsel to Kenneth Starr in the Whitewater investigation and a deputy assistant secretary of Homeland Security in the George W. Bush administration. Follow him on Twitter: @RosenzweigP

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This article originally appeared on USA TODAY: Trump impeachment defense: Oath of office? Whatever. I do what I want.