The Ukraine whistleblower scandal, in which President Donald Trump apparently pressured foreign leaders to investigate former Vice President Joe Biden and his administration tried to stop an intelligence community whistleblower from transmitting a complaint about it to Congress, is likely to have a great many political consequences.
But, warned Georgetown law professor Marty Lederman in The Atlantic, one of the main things it could do is “rewrite the proper standards of the presidency” and normalize the abuse of executive power to attack political opponents.
“Whether a majority of the House of Representatives votes to impeach Trump for that conduct isn’t the only critical question facing Congress,” wrote Lederman. “Another is whether all or virtually all members of both the House and the Senate—including those who would choose not to vote to impeach or convict him—are prepared, individually and collectively, to condemn the president’s actions unequivocally.”
“If a substantial group of members of Congress signals not merely that the president’s conduct does not warrant impeachment and removal but also that it does not even warrant branding as intolerable, such conduct it will become normalized — at a great cost to previously unquestioned first principles of constitutional governance — even if the House impeaches Trump,” warned Lederman.
The presidency, Lederman argued, is a vast and powerful office with countless tools that could be exploited for ill political gain in ways that aren’t obviously illegal — but should be impeachable. “To use scholar Charles Black’s canonical test for whether impeachment is warranted, Trump engaged in (1) extremely serious conduct that (2) corrupts or subverts the political and governmental process and ‘tend[s] seriously to undermine and corrupt the political order’ and (3) is ‘plainly wrong in [itself] to a person of honor, or to a good citizen, regardless of words on the statute books,'” wrote Lederman.
“Indeed, Black’s hypothetical case illuminating the operation of this test was eerily prescient,” continued Lederman. “‘Suppose,’ he wrote, that ‘a president were shown by convincing evidence to have used the federal tax system consistently and massively as a means of harassing and punishing his political opponents. As far as I know, this conduct is not criminal in the ordinary sense. But does such gross misuse of what is supposed to be a politically neutral arm of government not tend seriously to undermine and corrupt the political order? Is it not obviously wrong, to any man of ordinary honor? If these questions are answered ‘yes,’ then this offense, as lawyers might say, is eiusdem generis, of the same kind, with treason and bribery…. If it is not a crime under statute, then it is the kind of offense which ought to be held impeachable, though not criminal in the ordinary sense.'”
“Presidents have abused their power before and will do so again,” wrote Lederman. “But Trump’s public defense of his abuse of power here is a distinct problem quite different from the abuse itself, one that exacerbates the threat to our constitutional system. When vice pays no homage to virtue but is open and proud, it presents a special challenge to accepted morality. If one steals cash, hides it and denies the theft, the act poses an enforcement problem. But if one steals cash and then, once caught red-handed, publicly defends the act as legitimate, that defense poses a challenge to the norm itself. That is in effect what Trump is doing when he declares that his conversation with Zelensky was “pitch perfect” and when his appointees act as though nothing untoward has occurred.”
“It’s now up to all members of Congress — whether or not they vote to impeach or remove Trump — to prevent this effort to rewrite the proper standards of the presidency,” concluded Lederman.