The four-part threshold test for impeachment and removal of President Donald Trump
There is a four-part threshold test for impeachment and removal of President Donald Trump. This test was established in the Andrew Johnson impeachment case and has helped guide the Nixon and Clinton cases as well. The test is both political and legal in nature, and very difficult to pass. If the House impeachment managers substantively meet the four-part test and the President’s defense makes no plausible case to counter any of them, the Senate is Constitutionally obligated to convict. Failure to convict at that point would amount to partisan jury nullification, an abandonment of Senators’ Constitutional Oath.
What is the four-part test?
1) Was a “high crime and misdemeanor” committed?
2) Did the President personally commit this “high crime and misdemeanor”?
3) Did the President do so with corrupt or malign intent?
4) Does the President pose an ongoing threat to continue committing this “high crime and misdemeanor”?
Here is how the case might unfold.
1) The House appears ready to impeach Trump for extorting Ukraine’s President to make an announcement on CNN of a bogus “investigation” into the Bidens as a price for receipt of Congressionally authorized defense aid. There are a number of statutory crimes as well as gross abuses of Presidential power involved here. Defense will need to argue either that this extortion campaign did not happen or, if it did, does not rise to the level of “high crime and misdemeanor.” Other charges like Obstruction might be included too but the core case is the extortion of a foreign leader to solicit interference in a domestic political campaign.
2) The House will then need to show that Trump personally committed this act. There is some debate at this point over whether the House needs more testimony from Mick Mulvaney, Michael Pompeo, John Bolton or Rudy Giuliani to prove that Trump ordered this crime and the various underlings did not freelance it – this was Jonathan Turley’s argument for slowing down and waiting for their testimony. The House will probably argue that the existing evidence is enough to show the President’s personal approval of this whole operation.
3) The House will need to show that Trump’s action was not part of his legitimate power to execute the country’s foreign policy. The House can show how the “Three Amigos” personally re-wrote Zelensky’s “anti-corruption” message to include the Biden/Burisma case, demonstrating that the intent was solely to solicit damaging information to undermine Biden’s Presidential prospects and not to legitimately fight corruption in Ukraine. Trump’s defense will likely argue that this was a legitimate exercise of the President’s authority, no matter how irregularly it was carried out.
4) The House needs to show that this matter cannot be put off until the November 2020 election because the crime is ongoing and, in fact, is jeopardizing the integrity of the 2020 election itself. This is where the political calculation really enters into the picture because the election season is already upon us. But Giuliani’s efforts in Ukraine RIGHT NOW show that Trump clearly feels emboldened to continue with his current efforts to solicit damaging information from Ukrainians about the Bidens.
All the President’s defense needs to do is make a plausible defense against any of these four elements. So far Trump’s defenders have offered bits and pieces of a defense but nothing really coherent yet. Perhaps they are waiting to see what the impeachment articles actually say before mounting a defense. That defense will be both legal and political in nature – a response to the charges and a set of political talking points to defend a vote of acquittal.
Every Senator will need to defend his or her decision, including especially those up for re-election in November 2020. Voters will ultimately have their say on both the President’s fitness for office and Senators’ ability to serve the Constitution.