What’s Impeachable? They’ll Know It When They See It

After more than a week of statements, petitions, arguments and questions, we asked Michelle Cottle, an editorial board member who’s been chronicling President Trump’s impeachment trial for Opinion each day from Capitol Hill, to offer some much-needed clarity. Below are Ms. Cottle’s responses to a selection of questions from readers about the proceedings. They have been edited for length and clarity. — Rachel L. Harris and Lisa Tarchak, senior editorial assistants

Michael S. Freeman, Narberth, Pa.: There seem to be several Republican senators who don’t agree with the analysis of Alan Dershowitz (a lawyer for President Trump) yet insist that what Mr. Trump is accused of is not impeachable. Have any of those senators offered a view of what would be an impeachable act? In the absence of clarity from the language in Article 2 of the Constitution, how does any politician decide what is the threshold?

Michelle Cottle: Shorter answer: It all depends.

The question of what constitutes an impeachable offense has been one of the central points of debate in this whole mess. Senators can talk about how this or that behavior clearly does — or does not — clear the bar, but to a large degree their views on impeachable offenses boil down to something akin to the old definition of pornography: They know it when they see it.

And the way they see it has much to do with their political team. The House managers nodded to this during their opening arguments last week when they played a 1999 video clip of Senator Lindsey Graham, Republican of South Carolina, and one of the president’s chief defenders, sharing his view of impeachable offenses during the Clinton impeachment trial:

“What’s a high crime? How about if an important person hurts somebody of low means. It’s not very scholarly, but I think it’s the truth,” Mr. Graham says in the clip. “I think that’s what they meant by ‘high crimes.’ Doesn’t have to be a crime. It’s just when you start using your office and you’re acting in a way that hurts people, you’ve committed a high crime.”

Needless to say, Mr. Graham no longer believes what he said — although, to be fair it’s hard to know for certain what he believes. In the early stages of the Trump impeachment investigation, he said that evidence of a quid pro quo would be cause for concern. As that evidence has emerged, he has changed his tune.

Republican Senators Ted Cruz of Texas and John Kennedy of Louisiana have both suggested that proving a quid pro quo is not enough, and that the real test should be whether the president’s intentions were corrupt. They obviously do not agree that the House managers have made this case.

Gail Mangham, Prescott, Ariz.: I’m trying to square my view — that the refusal of the Republicans to allow witnesses is a form of obstruction of justice — with the Republican view that Trump’s decision to disallow witnesses, like John Bolton and others, is not obstruction of justice. Need some help on this point.

MC: You and me both. The defense’s claim is all about process. They insist the House did such an unfair, slapdash job with its inquiry that the entire impeachment, including many of the subpoenas it issued, were illegitimate and, as such, the president would have been irresponsible to participate. Furthermore, they argue, if the Senate now validates the House’s shoddy work, it will set a terrible precedent, making it too easy for the House to impeach future presidents.

Darrie Ganzhorn, Santa Cruz, Calif.: What is Chief Justice John Roberts’s role and responsibility in this trial? Does he have any say in whether there will be witnesses?

MC: As presiding officer, the chief justice has spent most of his days keeping the process on track — gaveling sessions in and out and preventing partisan spats from getting out of hand. At one point late in the first trial session, he scolded the House managers and the president’s team for excessive jerkiness. During the question-and-answer period, he read the questions aloud and gently tried to keep the teams of lawyers within the five-minute time limit for answers.

Eager to avoid the appearance of partisanship, the chief justice has avoided wading into the content of the arguments, declining to push back on even outrageous legal claims being floated. (And Mr. Dershowitz has floated some doozies for the defense.) He did take a stand against outing the whistle-blower, refusing to read aloud any questions that cited the individual by name.

Much as the vice president does during normal sessions of the Senate, the chief justice is also there to serve as the deciding vote in case of a tie. This may or may not apply to a vote on witnesses, as there is some dispute about whether the chief justice should break ties on procedural motions.

Rick Bissonnette, Cuyahoga Falls, Ohio: If impeachment managers petition Justice Roberts for a witness and he grants their petition, can the Senate overrule that decision with a simple majority?

MC: As with so much about impeachment, this too is a matter of dispute. Three legal scholars argued in The Times this week that the chief justice can unilaterally call witnesses, based in part on the latest (1986) version of impeachment rules and regulations. The chief justice could reject this interpretation, which would likely lead to minor chaos as the Senate parliamentarian and others got sucked into the discussion.

But! Even if the chief justice did unilaterally subpoena John Bolton or others, the Senate could still refuse to hear the testimony. Result? More chaos.

Mike Roche, Califon, N.J.: Has the Government Accountability Office’s conclusion been introduced into the proceedings?

MC: The report from the G.A.O. (Congress’s accounting watchdog) has made an appearance, though it has not been discussed in detail. It was cited in the trial memorandum that the House impeachment investigators submitted, and Representative Adam Schiff mentioned it more than once in the House managers’ opening arguments. Robert Ray, part of the president’s defense team, dismissed it as just another political clash between the executive and legislative branches.

Richard L. Thomas, Los Angeles: Why does the White House accuse Democrats of trying to “undo” the 2016 election? If Trump were actually to be convicted in the Senate trial, what, if anything, would happen, other than Vice President Mike Pence, whom Trump’s supporters also voted for, becoming president.

MC: Going back to the Mueller investigation and even earlier, the goal of the president and his defenders has been to portray any criticism or questioning of his behavior as politically motivated. As Mr. Trump tells it, Democrats, the media and elements of the Deep State are so bitter that he won in 2016 that they’ve all joined forces to end his presidency by any means necessary. For him, everything is personal. His argument doesn’t require proof. It just has to inflame partisan tensions.

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