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A copy of the articles of impeachment in Washington. House Democrats announced they are pushing ahead with two articles of impeachment against President Donald Trump. (AP photo)

Commentary: Legal strategy behind keeping impeachment simple

The House Judiciary Committee has announced plans to consider two articles of impeachment against President Donald Trump. Because Democrats control the committee and the House, it is now very close to a foregone conclusion that Trump will be impeached.

It’s remarkable and historically significant that the committee will consider just two very focused articles of impeachment. Andrew Johnson’s impeachment featured 11 articles. Richard Nixon, who managed to resign after the House Judiciary Committee approved articles of impeachment but before the House adopted them, faced three. Bill Clinton was impeached with two articles — but they contained four and seven subparts respectively, corresponding to four alleged grand jury lies and seven alleged acts of obstruction of justice.

In contrast, Trump will face charges that are extraordinarily simple and compact. The first article will allege the high crime and misdemeanor of abuse of power. It will state that Trump abused the office of the presidency for personal advantage in soliciting investigations of political opponents from the president of Ukraine in order to influence the 2020 election; and that in doing so, Trump put his personal gain ahead of the national interest.

The second article will charge Trump with obstructing Congress by flatly refusing to participate in the impeachment inquiry and by ordering the entire executive branch not to participate.

The decision by House leadership to focus in a laser-like way on these two charges is wise in light of their goals — but it wasn’t at all an obvious choice. Since becoming president, Trump has committed a striking number of acts that could qualify as high crimes and misdemeanors under the Constitution. Most prominently, special counsel Robert Mueller’s report provided extensive evidence that Trump obstructed justice in attempting to fire Mueller and in ordering White House counsel Donald McGahn to lie about his attempt to do so.

Yet the decision to impeach is roughly analogous to the decision a prosecutor makes to bring charges against a criminal. Prosecutors can only bring charges if they have evidence that the criminal is guilty. But even then, not every criminal act gets prosecuted — or needs to be. Prosecutors must weigh the public consequences of a prosecution. They must ask themselves whether there are mitigating factors that weigh against bringing charges even against someone they believe to be guilty. Prosecutorial discretion is a crucial component of the job of being a prosecutor.

Similarly, congressional leadership has the responsibility of exercising what we might call impeachment discretion in the case of a president. Not every constitutionally impeachable act can or should be impeached. Judgment is required.

The House leadership has exercised its impeachment discretion to focus on Trump’s conduct as revealed in his now famous July 25, 2019 phone call to Ukrainian president Volodymyr Zelenskiy. The main reason is that the conduct is so blatant. To be sure, all the supporting evidence that emerged in the House hearings laid bare the details of Trump’s plan to pressure Ukraine into announcing investigations into Joe and Hunter Biden and the CrowdStrike conspiracy theory. But the most important facts were already known once the rough transcript of the call was released. As I have argued, including in my testimony before the House Judiciary Committee, the call on its own provided enough evidence to justify impeachment for abuse of power.

No doubt Democrats will argue that the Ukraine-related charge demonstrates a pattern of willingness to cooperate with foreign countries in manipulating elections. But that pattern won’t be at the heart of the charge. Nor should it be — because the rest of that conduct cannot be explained as simply or delineated as sharply as the Ukraine conduct.

In essence, the House leadership is wagering that simplicity will help make the public case for impeachment. And even if the Senate ultimately does not convict Trump and remove him from office, the historical record will retain that simplicity.

As for obstruction of Congress, here the simplicity captures a basic reality: no other president has ever stonewalled Congress entirely when it comes to impeachment. Even Richard Nixon, who famously withheld evidence and was therefore facing impeachment for obstruction of Congress, allowed some executive branch witnesses to testify and provided some documents to Congress.

The House leadership will have to do more work to explain the American people what is so bad about Trump’s refusal to cooperate. To put it simply, the Constitution only gives one solution to the problem of presidential misconduct, which is impeachment. If a president can’t be investigated by Congress in an impeachment inquiry, he is effectively above the law. Then the United States is no longer really a democracy, but something else: an elected monarchy, or a dictatorship.

Historians will look back and wonder why the charges against Trump were so compact given the range of his misconduct. The answer is that Democrats determined, not that Trump hadn’t committed more impeachable acts, but that the public would be able to understand and focus on these two charges in particular. Whether that strategy works should not only be judged by the outcome in the Senate, but also by the judgment of history, and by the results of the 2020 election.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.

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