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Arguing Over Impeachment - The Prosecution

While impeachment came up in one of the simple examples I used to introduce readers to the logic-checking process, it’s time now to take a look at specific arguments for and against impeachment of President Trump through the lens of critical-thinking principles.

Source Material

Fortunately, last week’s Congressional impeachment hearings included presentations by noted legal scholars and, like edited and published editorials, formal speeches – especially those made by legal experts skilled in crafting persuasive communication – represent excellent material to distill into structured arguments.

Today I will look at the argument contained in the opening statement of impeachment-supporter Pamela Karlan and tomorrow I’ll give the same treatment to an opponent of impeachment, Jonathan Turley. I will reproduce those opening statements at the end of each posting, starting with Karlan's full opening statement below. You are also free to read the full transcript of the entire hearing or watch complete testimony on video.

Starting with Pamela Karlan, Professor Karlan teaches at Stanford Law School and also served as Deputy Assistant Attorney General for Voting Rights during two years of the Obama administration. Her bio page on the Stanford Law web site describes her as “one of the nation’s leading experts on voting and the political process” and, as just mentioned, she spoke in favor of impeaching the President.

An Argument for Impeachment

Like all four scholars who presented to Congress last week, Karlan looked at the current proceedings through the lens of legal history with a particular emphasis on what the framers of the US Constitution considered an impeachable offense. While her comments touched on a number of issues, I believe a fair distillation of her argument would look like this:

Premise 1: The US Constitution allows a President to be impeached for treason, bribery or high crimes and misdemeanors.

Premise 2: All reasons for impeachment stated in the US Constitution (treason, bribery and high crimes and misdemeanors) have in common an elected official putting his or her own interests ahead of the interests of the nation and the rule of law.

Premise 3: The framers of the Constitution clearly included corrupting the election process under “high crimes and misdemeanors.”

Premise 4: Inviting foreign interference in US elections is a particularly egregious form of corrupting the election process which the nation’s founders especially feared.

Premise 5: President Trump invited foreign interference in the US Presidential election process to benefit himself at the expense of the country and rule of law.

Conclusion: President Trump should be impeached for high crimes and misdemeanors.

As with this previous example, I did my best to translate Karlan’s original prose into a valid structure since doing so often forces you to write premises in ways that expose their strengths and weaknesses. So debates over her argument are not over whether her premises lead to her conclusion (the test for validity), but rather whether all of her premises are true (the test for soundness).

Legal debates over the meaning of a vague and open term like “high crimes and misdemeanors” (versus more well-defined crimes like bribery and treason) are a challenge to Premise #3. But a bulk of the political debate we have seen since Congress began impeachment proceedings involve challenges to Premise #5.

Those challenges have been wide-ranging and include many additional arguments (one of which you will read tomorrow). But the goal of all these attacks is to undermine belief in the argument as a whole by showing one of its premises to be false (or at least something a reasonable person could doubt), thus making the entire argument fail due to lack of soundness.

Point of Agreement?

In an age of political hyper-partisanship, we often decry the fact that political opponents live in parallel universes where the same impeachment proceedings demonstrate either a criminal President who deserves to be removed from power or a corrupt Congress and media conspiring to stage a coup d’état. Yet Karlan’s argument, especially once rendered into the structured form shown above, is actually a point of agreement between these supposedly irreconcilable sides – even if one side says the argument is good and the other dismisses it as bad.

Now there are other augments that can be brought to bear on the impeachment issue, for and against. Tomorrow we will look at one of the nays.

Pamela Karlan Opening Statement (transcript)

Mr. Chairman and members of the committee, thank you so much for the opportunity to testify. Twice I have had the privilege of representing this committee and its leadership in voting rights cases before the Supreme Court. Once when it was under the leadership of the Chairman Sensenbrenner, and it’s good to see you again sir. And with Mr. Shabbat as one of my other clients. And once under the leadership of Chairman Conyers. It was a great honor for me to represent this committee because of this committee’s key role over the past 50 years in ensuring that American citizens have the right to vote in free and fair elections. Today you’re being asked to consider whether protecting those elections requires impeaching a president. That is an awesome responsibility, that everything I know about our constitution and its values, and my review of the evidentiary record. And here Mr. Collins, I would like to say to you, sir, that I read transcripts of every one of the witnesses who appeared in the live hearing because I would not speak about these things without reviewing the facts.

So, I’m insulted by the suggestion that as a law professor, I don’t care about those facts. But everything I read on those occasions tells me that when President Trump invited, indeed demanded foreign involvement in our upcoming election, he struck at the very heart of what makes this a Republic to which we pledge allegiance. That demand, as Professor Feldman just explained, constituted an abuse of power. Indeed, as I want to explain in my testimony, drawing a foreign government into our elections is an especially serious abuse of power, because it undermines democracy itself. Our constitution begins with the words, “We the people,” for a reason.

Our government, in James Madison’s words, “Derives all its powers directly or indirectly from the great body of the people.” And the way it derives these powers is through elections. Elections matter, both to the legitimacy of our government, and to all of our individual freedoms.

Because as the Supreme Court declared more than a century ago, voting is preservative of all rights. So, it is hardly surprising that the constitution is marbled with provisions governing elections and guarantee governmental accountability. Indeed, a majority of the amendments to our constitution since the Civil War have dealt with voting or with terms of office. And among the most important provisions of our original constitution is the guarantee of periodic elections for the presidency. One every four years. America has kept that promise for more than two centuries, and it has done so even during wartime. For example, we invented the idea of absentee voting so that Union troops who supported President Lincoln could stay in the field during the election of 1864. And since then, countless other Americans have fought and died to protect our right to vote. But the framers of our constitution realized that elections alone could not guarantee that the United States would remain Republic.

One of the key reasons for including the impeachment power was a risk that unscrupulous officials might try to rig the election process. Now, you’ve already heard two people give William Davy his props. Hamilton got a whole musical and William Davy is just going to get this committee hearing, but he warned that unless the constitution contained an impeachment provision, a president might spare no efforts or means whatsoever to get himself reelected. And George Mason insisted that a president who procured his appointment in the first instance through improper and corrupt acts should not escape punishment by repeating his guilt. And Mason was the person responsible for adding high crimes and misdemeanors to the list of impeachable offenses. So, we know from that, that the list was designed to reach a president who acts to subvert an election. Whether that election is the one that brought him into office, or it’s an upcoming election where he seeks an additional term.

Moreover, the founding generation, like every generation of American since, was especially concerned to protect our government and our democratic process from outside interference. For example, John Adams during the ratification expressed concern with the very idea of having an elected president, writing to Thomas Jefferson that, “You are apprehensive of foreign interference, intrigue, influence. So am I. But as often as elections happen, the danger of foreign influence recurs.”

And in his farewell address, President Washington warned that history and experience prove that foreign influence is one of the most baneful foes of Republican government. And he explained that this was in part because foreign governments would try and foment disagreement among the American people and influence what we thought. The very idea that a president might seek the aid of a foreign government in his reelection campaign would have horrified them. But based on the evidentiary record, that is what President Trump has done.

The list of impeachable offenses that the framers included in the constitution shows that the essence of an impeachable offense is a president’s decision to sacrifice the national interest for his own private ends. Treason, the first thing listed, lay in an individual’s giving aid to a foreign enemy. That is, putting a foreign enemies adversary’s interests above the interests of the United States.

Bribery, occurred when an official solicited, received, or offered a personal favor or benefit to influence official action, risking that he would put his private welfare above the national interest. And high crimes and misdemeanors captured the other ways in which a high official might as Justice Joseph Story explained, disregard public interests in the discharge of the duties of political office. Based on the evidentiary record before you, what has happened in the case today is something that I do not think we have ever seen before.

A president who has doubled down on violating his oath to faithfully execute the laws, and to protect and defend the constitution. The evidence reveals a president who used the powers of his office to demand that a foreign government participate in undermining a competing candidate for the presidency. As president John Kennedy declared, “The right to vote in a free American election is the most powerful and precious right in the world, but our elections become less free when they are distorted by foreign interference.” What happened in 2016 was bad enough. There is widespread agreement that Russian operatives intervened to manipulate our political process. But that distortion is magnified if a sitting president abuses the powers of his office actually to invite foreign intervention.

To see why, imagine living in a part of Louisiana or Texas that’s prone to devastating hurricanes and flooding. What would you think if you lived there and your governor asked for a meeting with the president to discuss getting disaster aid that Congress has provided for? What would you think if that president said, “I would like you to do us a favor. I’ll meet with you and I’ll send the disaster relief once you brand my opponent a criminal.”

Wouldn’t you know in your gut that such a president had abused his office? That he betrayed the national interest, and that he was trying to corrupt the electoral process? I believe that that the evidentiary record shows wrongful acts on that scale here. It shows a president who delayed meeting a foreign leader, and providing assistance that Congress and his own advisors agreed serves our national interest in promoting democracy and in limiting Russian aggression. Saying, “Russia, if you’re listening.”

A president who cared about the constitution would say, “Russia, if you’re listening, butt out of our elections.” And it shows a president who did this to strong-arm a foreign leader into smearing one of the president’s opponents in our ongoing election season. That’s not politics as usual, at least not in the United States or not in any mature democracy. It is instead a cardinal reason why the constitution contains an impeachment power. Put simply, a president should resist foreign interference in our elections, not demand it and not welcome it. If we are to keep faith with our constitution and with our Republic, President Trump must be held to account. Thank you.


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