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The Legal Questions Still Unanswered by Trump’s Impeachment

What exactly is abuse of power? And, for that matter, what is “obstruction of Congress?”

The House of Representatives has now approved two articles of impeachment against President Donald Trump. One relates to Trump’s alleged abuse of power, focusing on his solicitation of a bribe from Ukrainian President Volodymyr Zelensky for his own political gain; the other charges him with obstructing the House’s investigation of the solicitation and surrounding events. Both articles strongly echo those drawn up against Richard Nixon, Bill Clinton, and others, but they also raise questions those earlier proceedings never answered.

 

One of the most important questions—unanswered by the legal scholars at the December 4 Judiciary Committee hearing, or indeed by anyone else in this whole process—is the exact nature of abuse of power. Admittedly, those scholars, particularly Michael Gerhardt and Noah Feldman, did talk at some length about the concept, but never at a very deep level, in part because House members either badgered them or lobbed them softballs, depending on their political persuasion. Understanding abuse of power is important because while Nixon, Clinton, and a number of federal judges have been charged with it, the records of the Philadelphia Convention neither use that phrase with regard to impeachment nor support the claim that a president is subject to impeachment for anything Congress desires. When members of the convention did discuss abuse of power, they failed to give a clear definition, although there are suggestions that it results from a tension between personal and public interest. Most of those discussions, furthermore, reflected a fear not of the president, but—ironically—of Congress and of individual state power. If we are going to continue to apply the phrase abuse of power to presidential actions, then we must define it so that some standard can exist.