President Donald Trump’s lawyers will start delivering their opening statement on Saturday. Their defenses of his actions are unlikely to be cogent or persuasive. The trial brief his team filed earlier this week took alarming stances on executive power, effectively arguing that there are no constraints; therefore, the president cannot abuse it. At times, their arguments devolved into campaign literature: Trump’s lawyers argue at one point that he is being impeached because Democrats have “no response to the president’s record of achievement in restoring prosperity to the American economy, rebuilding America’s military, and confronting America’s adversaries abroad.” None of that is germane to the issue at hand.
Poor legal representation is a defining theme in this impeachment saga. Many of Trump’s current woes can be traced back to a series of misjudgments made by his personal attorney, Rudy Giuliani, which Trump encouraged. The president’s inability to find high-quality lawyers to aid him (or listen to those who might) have not helped his plight. And as I’ve noted throughout this process, those who’ve argued against Trump’s impeachment or removal from office have yet to present a robust case.
But in this late hour, an exception has arrived in the form of Josh Blackman, a South Texas College of Law Houston professor. Blackman is a conservative legal scholar who has played a notable role in the legal battles surrounding the Affordable Care Act. He does not share Trump’s most extreme legal stances on impeachment. Blackman acknowledges that an impeachable offense “need not be criminal,” and he disagrees with Trumpworld’s constant assertion that impeachment amounts to the overturning of an election. While senators may have no choice but to listen to Trump’s lawyers, engaging with the strongest alternatives available is more productive for everyone else.
Blackman’s primary concern is not so much about Trump himself, but about future presidents. He takes issue with the potential breadth of activities that might fall under what the House has defined as an abuse of power. “As a policy matter, I disagree with Mr. Trump’s decision to ask for an investigation of the Bidens,” he wrote in a New York Times op-ed on Thursday. “Even if warranted, it should have been avoided at all reasonable costs. The republic would have been fine if we never learned more about Burisma. But receiving a ‘personal political benefit’ does not transform an otherwise legal action—requesting an investigation—into impeachable conduct.”
Trump’s critics, including myself, have argued that the president placed his own political future above the nation’s interests. Blackman says that the calculus isn’t that simple. “Politicians pursue public policy, as they see it, coupled with a concern about their own political future,” he wrote. “Otherwise legal conduct, even when plainly politically motivated—but without moving beyond a threshold of personal political gain—does not amount to an impeachable ‘abuse of power.’ The House’s shortsighted standard will fail to knock out Mr. Trump but, if taken seriously, threatens to put virtually every elected official in peril. The voters, and not Congress, should decide whether to reward or punish this self-serving feature of our political order.”
He elaborated on his argument in an accompanying post at Reason, citing The Times’ length constraints. (For that same reason, he only addresses the abuse-of-power charge and not the obstruction charge.) “Politicians routinely promote their understanding of the general welfare, while, in the back of their minds, considering how those actions will affect their popularity,” he explained. “Often, the two concepts overlap: What’s good for the country is good for the official’s re-election. All politicians understand this dynamic, even—or perhaps especially—Mr. Trump. And there is nothing corrupt about acting based on such competing and overlapping concerns.”
If Trump had withheld military aid and diplomatic favor from Ukraine out of legitimate concerns about widespread corruption, Blackman’s argument here would carry more weight. But as Case Western Reserve University law professor Jonathan Adler noted in a separate Reason piece, the facts suggest otherwise. “As virtually all of the evidence in the record shows, what [Trump] asked for was the announcement of an investigation, and that he had no interest in combating actual corruption of any kind,” he wrote. “This difference may seem small, but it is key—and Josh’s argument only works if this distinction is obscured.”
To build his case, Blackman asserts that Trump is “not the first president to consider his political future while executing the office.” One of his two examples is a letter from President Abraham Lincoln to General William Sherman on September 19, 1864, about Indiana’s elections that fall. In the letter, Lincoln asks Sherman to let as many soldiers in his army from Indiana return home to vote as possible. “The State election of Indiana occurs on the 11th of October, and the loss of it to the friends of the Government would go far towards losing the whole Union cause,” he wrote. “The bad effect upon the November election, and especially the giving the State Government to those who will oppose the war in every possible way, are too much to risk, if it can possible [sic] be avoided.”
This is an intriguing example because it’s one in which a president seems to have unambiguously used his war powers in an attempt to influence the outcome of a domestic election. “What was Lincoln’s primary motivation?” Blackman wrote. “He wanted to make sure that the government of Indiana remained in the hands of Republican loyalists who would continue the war until victory. Lincoln’s request risked undercutting the military effort by depleting the ranks. Moreover, during this time, soldiers from the remaining states faced greater risks than did the returning Hoosiers.”
Lincoln’s actions still differ from Trump’s Ukraine scheme in three instructive ways. I won’t dive fully into the debate over how Lincoln wielded executive power during the Civil War in this article. But it suffices to say first that Indiana had a fairly active pro-Southern bloc during the war, and that Lincoln and other Union leaders may have legitimately feared that a state government sympathetic to the Confederacy—or at least to a negotiated peace with it—could undermine the war effort in a key state. While Lincoln could credibly claim that he acted in the nation’s military and national-security interests, Trump’s treatment of Ukraine has likely only aided Russian efforts to expand its military and political influence in eastern Europe.
Second, Lincoln explicitly told Sherman that his letter was not an order and “merely intended to impress you with the importance, to the army itself, of your doing all you safely can, yourself being the judge of what you can safely do.” In other words, if Sherman could not spare the men for military reasons, he was not obliged to do so. That indicates Lincoln ultimately prioritized the army’s combat readiness over the political viability of his party. Trump took no such care or caution in his unilateral freeze of military aid to Ukraine; the available evidence suggests he only relented when Congress caught wind of the scheme in mid-September.
Third, and most tellingly, Lincoln’s letter says that the soldiers need only vote in the state elections in October, and not for himself in November. “They need not remain for the Presidential election, but may return to you at once,” he wrote. This is particularly remarkable because Lincoln and many other observers genuinely feared by September 1864 that he would lose the election that fall. Against that backdrop, his comment that the returned soldiers “need not remain” seems like a conscious effort to avoid reaping any direct personal benefit from his actions, no matter how urgently he felt the need for support. Trump, on the other hand, made clear over and over again that his focus was on the Bidens themselves—and thus on his own electoral fortunes this fall.
Blackman’s other example takes place a century later, during Lyndon B. Johnson’s administration. Johnson, he writes, sought to place Thurgood Marshall on the Supreme Court in 1967, even though there was no vacancy to do so. So he created one by naming Ramsey Clark as attorney general, knowing it would likely lead his father, Justice Tom Clark, to retire. “Here, Johnson engineered a move that would have created conflicts that would keep a sitting Supreme Court justice from deciding countless appeals, where the primary purpose was to create a vacancy on the court,” Blackman wrote. “Ultimately, Johnson did not run for re-election in 1968, but appointing the first African-American justice could have improved his popularity, and perhaps his party’s electoral standing.”
I’ll stipulate that using political appointments to manipulate the Supreme Court’s composition is not desirable, to say the least. But comparing it to Trump’s Ukraine scheme is a stretch on multiple levels. It’s fairly common for presidents to choose Supreme Court nominations with an eye toward their own electoral prospects. Dwight Eisenhower, for example, named Justice William Brennan because he thought it would bolster his standing with Catholics in the Northeast. Trump boasts about his judicial nominations to his supporters whenever possible. All that distinguishes this episode is Johnson’s effort to create a vacancy rather than merely fill one.
If Johnson—or any other president, for that matter—had done something like this to influence the outcome of a specific case or set of cases before the high court, this analysis might be different. But the personal political benefits for Johnson in this circumstance are so remote and hypothetical that it seems like a misuse of power more than an outright abuse of it. Note, for instance, that either of the Clarks could have foiled Johnson’s plans at any time. The younger could have turned down the position or recused himself from cases that reached the court; the elder could have simply not retired at all and enjoyed a diminished workload of cases. Ukrainian President Volodymyr Zelenskiy was not so fortunate.
What sets Blackman’s argument apart from the servile defenses offered elsewhere is that he raises a genuine dilemma with how impeachment operates. When should Congress leave it up to the American people to remove a president from power, and when should it take action itself? Blackman errs on the side of elections. He cites Democrats’ victory in the 2018 midterms as proof that the American people can effectively check a president’s actions. “Ultimately, I find more solace in the short term of the President’s tenure,” Blackman wrote, noting that November 2020 “will be here before you know it.”
I don’t fault Blackman for his faith in the American people, only for his assumption that Trump will give them a fair opportunity to render their judgment. After all, the president already tried to undermine his likeliest Democratic opponent by coercing a foreign power into accusing him of corruption. Had Congress not learned of the plot, he might have even gotten away with it. Trump wasn’t impeached over the Ukraine scandal because it’s the worst thing he’s done in office, but because it proved he was willing to abuse his powers to stay there.