Phil Tonseth ‘22
Staff Editor
“Congress has set forth a process that we can’t possibly predict.” This theme pervaded the panel discussion of the current impeachment process within the House of Representatives, hosted by Virginia Law Democrats on October 2, 2019. Professors Ashley Deeks, Deborah Hellman, and Saikrishna Prakash spent forty-five minutes applying their expertise to the areas of national security, campaign finance, and presidential privilege in light of the current impeachment process. This discussion was followed by a fifteen-minute question and answer session. It’s fair to say more questions were left open than were answered, not due to lack of knowledge on the topic, but rather because of the nearly constant matriculation of information from Washington D.C. and the unpredictable nature of the relevant actors.
To set the stage, Professor Deeks ran through the basics of presidential power in foreign affairs. Drawing from the Constitution, the President maintains broad powers and discretion in foreign affairs, serving as the sole actor for the country. The structural advantages inherent to the office: secrecy, speed, and control over intelligence, have only been enlarged by Congress’s additional delegation of power to the Executive through various statutes. President Trump’s current, unfettered power as the sole voice in foreign policy for the U.S., while necessary to execute the president’s authority, is being challenged for its appropriateness and necessity within the scope of the whistleblower complaint.
As a preeminent expert on national security law, Professor Deeks transitioned the discussion to the classification of powers of the president as compared to the powers of the Judiciary and Congress to check the executive in this realm. As President Trump is able to classify or declassify documents at his discretion, thus allowing the White House to retain certain “code word” access files, inherent difficulties exist for congressional oversight. Even with certain congressional Committees maintaining security clearances and receiving classified briefings, the White House and Presidency often exert executive privilege to protect certain documents. Identifying a major crux in the current inquiry, Professor Prakash noted the Supreme Court has not fully fleshed out the issue of executive privilege,[1] has not dismissed this privilege, nor completely defined its full extent. The gaps between the branches of federal government on executive privilege and the extent to which it protects communications is one major issue to be addressed in this inquiry relating both to national security and presidential powers.
Relatedly, Professor Deeks addressed the risk the impeachment inquiry would have for U.S. national security writ large. With the Department of State, Department of Justice, and Congress focused on this matter, their concentration will not be on external adversaries including North Korea, Russia, and Iran. The time for an adversary to test U.S. foreign policy and strength would naturally follow from this distracted focus, thus increasing the risk to the nation as a whole during this process on both a domestic and international scale.
Professor Hellman then turned the conversation to how the alleged bribe offered can be construed as a violation of campaign finance laws. Although impeachment covers the crimes of treason, bribery, and high crimes and misdemeanors, Professor Hellman focused on bribery as her example to dissect the duplicity of the legal and political fight within the greater impeachment inquiry. Whether President Trump solicited a bribe is a question to be decided by Congress, but for a bribe to occur, there had to be a trade between two unequal types of things. Whereas withholding appropriated aid for a better foreign rights record does not constitute a bribe, as both things are political in nature, withholding foreign aid for opposition research does not meet the same threshold. Continuing this example, opposition research would be a form of campaign contribution, as it is inherently something of value. Thus, opposition research received as a bribe would violate campaign finance laws. Is this an impeachable offense? Does it fall within a high crimes and misdemeanor definition? Or, is there a necessary public benefit to receive the information from the investigation on the Biden family? The method Congress uses to determine impeachment and judge the aforementioned questions, if campaign finance crimes are taken into account for impeachment, must be apolitical and objective, because politicians will naturally believe their own reelection is beneficial to the public.
Taking into account all of the national security, campaign finance, and presidential powers issues brought up by the panel, it is clear that impeachment rests on both political and legal pillars. This was both enlightening and slightly frightening. The mental exercises of detailing potential avenues for prosecution, defense, and raising unanswered questions on impeachment generally implored the audience to think past the media portrayals of the current impeachment inquiry. As stated by Virginia Whorley ’22, “it was refreshing to hear about the impeachment inquiry from the perspective of law professors that have experience in areas of the law playing a role in it and to learn what questions they are asking as the process moves forward.” Although nobody knows where the process will take the American public, it is safe to say that we as a citizenry are in uncharted territory.
___
pjt5hm@virginia.edu
[1] Originally conceived by George Washington with regard to the Jay Treaty, as discussed in United States v. Nixon, 418 U.S. 683 (1974).