One of the most contentious issues during the 1787 debates about the US constitution was the subject of presidential impeachment. A Virginian named George Mason ultimately swayed the room: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice? Above all shall that man be above it, who can commit the most extensive injustice?” It was precisely the extensive power of the presidency that necessitated impeachment as the final remedy against a corrupt executive. “Shall the man who has practised corruption and by that means procured his appointment in the first instance,” Mason added, “be suffered to escape punishment, by repeating his guilt?”
Neal Katyal, a law professor and former acting US solicitor general, has set out “the case against Donald Trump” in his book Impeach. An experienced trial attorney who has argued before the US supreme court, Katyal knows how to present evidence and convince a jury. The result is essentially a primer for impeachment: first its basic rules and logic, and then why he considers the publicly available evidence to be so damning.
He begins with a brief history, extending back to the revolutionary arguments against monarchy and for an accountable executive. Some framers were less certain, arguing that a corrupt executive would be removed by democratic elections; Benjamin Franklin memorably retorted that before there was impeachment, there was assassination. Katyal then takes the reader on a brief tour of the previous three presidents against whom impeachment proceedings began, primarily in order to judge them against Trump, whose actions he considers to be considerably more egregious than those of Andrew Johnson, Richard Nixon or Bill Clinton – because Trump’s alleged offences are precisely those specified by the constitution as impeachable. And that in turn, presumably, is why Nancy Pelosi’s House decided to take action: because the constitution says the president should be impeached for bribery, and here was the president on the telephone appearing to solicit foreign bribes, a charge he has denied.
To make his case Katyal carefully takes the reader through the language of Article II, Section 4 of the constitution, which states that the president and other public officials should be removed from office for “Treason, Bribery, or other high Crimes and Misdemeanors” – arguably the most widely misunderstood aspect of impeachment. The concept of “high crimes” comes from English common law, widely understood at the time to mean not an especially severe crime, but rather a different category of wrongdoing: namely, abuse of public trust. Only a public official can be guilty of a “high crime” by definition – it has nothing to do with criminal statutes. Indeed, the original language of the clause was “high Crimes and Misdemeanors against the United States”, but the framers decided the last three words were redundant. In fact, Kaytal considers that Trump’s apparent offer to sell discounted weapons to Ukraine’s Volodymyr Zelenskiy in exchange for dirt on Joe Biden constitutes not merely an impeachable abuse of office, but arguably breaks criminal law: the Hobbs Act of 1946 prohibits actual or attempted extortion affecting foreign commerce “in any way or degree” – it’s a racketeering offence, often used in public corruption cases.
Finally Katyal provides an extremely useful synopsis of the evidence against Trump that has come to light since September 2019. The book covers events from the summer of 2019 to 8 October, meaning it was written and published very hastily indeed. That is one obvious reason for its brevity and simplicity, but it’s also the best way to make a case, breaking it down into the most basic possible terms. Katyal concludes, persuasively, that the House is likely to confirm three articles of impeachment: for soliciting foreign interference, bribery and obstruction of justice – the crime that brought down Nixon.
One of Katyal’s favourite techniques is to quote the words of Trump’s apologists against them. He takes a quotation from Mike Pence when he was a Congressman about putting public service above personal interests and turns it into the “Pence rule”; he quotes Senator Lindsey Graham urging impeachment against Bill Clinton in terms that thoroughly indict Trump; he notes that Trump’s former White House Counsel Don McGahn previously confirmed laws against a president receiving “things of value” from foreign nationals. The problem with this line of argument is obvious, however, and Katyal even quotes it later: quis custodiet ipsos custodes? Who will guard the guards themselves? Earlier he observes: “This Trump gambit – do it in public so no one cares – can be successful only for as long as our elected officials let it be.” But that also works the other way around: it will be successful for as long as they let it be.
Katyal believes that the survival of American democracy depends on holding this president accountable, ensuring that no American is above the law. He is not alone in this belief. Trump’s supporters, meanwhile, are reduced to insisting that impeachment is unconstitutional; Section II Article 4 says otherwise.
But this is where Katyal’s constitutional literacy hits the hard malice of political reality: a Senate controlled by Mitch McConnell’s majority. The constitution leaves the Senate with enormous latitude in how – or even whether – it should conduct the impeachment trial. Current Senate rules say McConnell must hold the trial, but he could change those rules; and even if he decided that was politically unwise, nothing stops him from running a kangaroo court. Katyal’s only remedy is to hope for the best. “For Senator McConnell to try to block the evidence from being carefully heard and considered would be a profound dereliction of his job,” he writes. Quis custodiet ipsos custodes?
• Impeach: The Case Against Donald Trump is published by Canongate (RRP £9.99). To order a copy go to guardianbookshop.com. Free UK p&p over £15.