Amid the endless confabulations, contortions, and distracting cacophonies being manufactured by unscrupulous Republicans these days to defend their indefensible President (the remaining scrupulous ones, alas, are a tiny minority), one stands out below the rest. In an effort to exonerate Donald Trump from obvious wrongdoing in asking the Ukrainian President to dig up (or invent) dirt on a potential political rival, former acting Attorney General Matthew Whitaker stated flatly: “Abuse of power isn’t a crime” in the context of the Constitution. He said it on October 22 during a media interview with Laura Ingraham on Fox News in which host and guest took turns pretending that no evidence of an impeachable act exists by equating such an act with a crime.
It is almost irresistible to dismiss this comment as the product of a political hack, who only ever got to be acting Attorney General because the White House made him Jeff Sessions’s Chief-of-Staff in order to keep an eye on “Mr. Recusal,” and then promoted him to acting AG because of his dogged loyalty to Donald Trump when Sessions was fired. Whitaker wasn’t even qualified to be a U.S. Attorney for the Southern District of Iowa, appointed to that job by President George W. Bush in 2004 at the request of Senator Chuck Grassley. (But that’s just standard patronage politics—Democratic as well as Republican.)
So of course Whitaker’s remark is crazy, right? Not so fast.
Whitaker may or may not be as dumb as he sounds, but he is clearly a lawyer, and some lawyers, at least, know their crimes and misdemeanors from their breaches of public trust. You may think that the latter are somehow subsumed by the former, but if you think that you are probably not a lawyer. It also may mean that you, like most of the mainstream media, do not actually understand the nature of impeachment under the American political system.
Insofar as there is an unimpeachable source in American sacred texts as to what impeachment is really about, it resides in Federalist 65. Here Alexander Hamilton, as Publius, wrote:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
Note that Hamilton emphasizes the political nature of the subject, in the only way print technology allowed in 1788—all caps. And note that neither here nor in the entire rest of Federalist 65 is there so much as a single use of the word “crime.”
This tells us, or ought to tell us, two simple things and one somewhat more involved one.
First, impeachment is a political, not a legal, concept. An abuse of the public trust is an impeachable offense but it is not necessarily a crime. Who is the judge of that abuse of the public trust? The Legislative Branch, sitting as a political body, not a legal one.
So in a narrow sense, at least, Whitaker’s statement is accurate. But it is also an act of obfuscation and misdirection—much like the tack of Mick Mulvaney’s now-infamous press conference of October 17. Whitaker and Ingraham probably know that the Trump-Zelensky conversation is plain evidence of an impeachable offense, but by saying that there was no crime they imply that there is also no impeachable offense. This is a quiet conflation with a purpose, in other words.
The reverse is, incidentally, also true. The Trump campaign’s soliciting foreign money for the campaign and, arguably too, the Inaugural ball was a crime, but not an impeachable offense because Trump had not yet been sworn in as President when the money was pocketed. Trump himself would not necessarily follow the argument; this is, after all, a man who once said he regretted not firing James Comey as soon as he had won the Republican nomination.
Second, this is why it is passing strange that the mainstream media keeps harping on the unwillingness of the White House to cooperate with the impeachment proceedings. Why on earth should the White House cooperate? Why would any White House cooperate under similar circumstances? Don’t our media mavens understand that this is a potentially zero-sum adversarial process between the Executive and Legislative Branches? Don’t they recognize, as Hamilton so clearly stated it, that this is a POLITICAL matter and not a narrowly legal one?
The question the media should be asking but, to my knowledge, hasn’t, is whether Donald Trump will voluntarily vacate the White House if he is impeached by the House and convicted by the Senate. That the Senate would convict him still seems to be very unlikely under any imaginable circumstances, but getting Trump on the record answering “no” to that question might be construed as . . . an impeachable offense. It might change the definition of imaginable. It would certainly violate the public trust, because Trump swore an oath to defend the Constitution, not defy it.
There is another sense in which Whitaker’s seemingly outrageous remark is not as outrageous as it should be. In recent years the Courts, including the Supreme Court, has so narrowly defined corruption—specifically in the form of influence peddling, suborning one’s office for personal gain—that it has become almost impossible to get plutocrat-fawning politicians out of office and in jail where they belong.
Now, it’s one thing when a petty crook like William Jennings Jefferson, a former Louisiana Congressman, gets caught with tens of thousands of dollars packed away in his home freezer. No lawyer can help someone as flagrantly careless as that. But New Jersey Senator Bob Menendez is still in office when he, by all rights, should be behind bars. His corruption trial ended in a mistrial in 2017 and the Justice Department then dropped all charges against him because 14 years’ worth of SCOTUS rulings in the Roberts era have made it all but impossible to get a conviction absent physical evidence of a quid pro quo—written promises to do “x” in return for brown paper bags full of cash. (A good summary of these rulings may be found here.)
Thus when Mr. Whitaker asserts that abuse of power is not a crime, not only is he technically correct about impeachment, he is also de facto correct about most high-profile corruption cases these days thanks to the derangements of the Roberts Court. That says something possibly even more important than how current impeachment proceedings go. It says something both profound and disturbing about the foundations of the rule of law in this land that most Americans are still trying very hard to love.
When Bob Dylan wrote, “Steal a little and they throw you in jail; steal a lot and they make you king” in “Sweetheart Like You,” it was 1983. Arguably, that statement was not true at the time except in extreme or metaphorical cases. Now it is all but tediously true, most of the time. Want circumstantial evidence? A man who got his start in business as a casino predator is now President of the United States.
Is that technically a crime? An abuse of public trust? It’s not necessarily either. It’s what We the People have allowed to happen. That’s not a crime either. It’s political, and it’s a crying shame.