An argument that I keep hearing is that the arguments for impeaching President Trump focus on his improper motives. His conduct, the argument goes, is a legitimate use of his powers, but is alleged to be impeachable because he acted for an improper purpose. This argument is just entirely wrong.
I understand where it’s coming from though. In pretty much every criminal trial, there’s an element of wrongful intent to the crime. And the prosecution has to prove, beyond a reasonable doubt, that the accused had this wrongful intent in their head.
Of course, the evidence presented does not consist of mind reading. There really can be no direct evidence of what was in someone’s yet. Yet juries have no difficulty being convinced, beyond a reasonable doubt, that a particular Defendant had a particular intent. Often this is inferred based on what they said, but primarily, it comes from their actions. If I hire someone to kill you and pay them money after they tell me they’re willing to kill you, it’s not a huge leap to infer that I intended to cause your death.
In many contexts, we don’t care about intent. For example, if you hire a maintenance worker for a rental property and he pockets the tenants jewelry, you should probably fire him. To convince him of theft, we need to prove that he intended to deprive the tenants of the jewelry permanently. But you can, and probably should, fire him without having to try to read his mind. It’s sufficient that he did something that a maintenance worker ought not to do.
It’s not always obvious which of these two arguments are being made because the evidence can be the same. But conflating them is simply an error.
For example, Josh Blackman’s article Impeachment Based on Improper Motives makes this mistake several times.
In case after case, both sides agreed that the President has the authority to take some action, but this President could not take those actions because of an improper motive: the travel ban, the citizenship question on the census, the DACA rescission, etc. Now, this well-worn argument will likely serve as the basis for an article of impeachment: the President can ask foreign governments to investigate possible corruption, but this President cannot make such a request because doing so could harm his political rival.
Impeachment Based on Improper Motives
Do you see the bait and switch here? The first part says that the claim is that the President performed an appropriate action but for an improper motive. But the second part says that the issues is that “doing so could harm his political rival“. That’s not a motive, proper or improper. That’s a foreseeable consequence of the action.
Imagine if he had said that we should not impeach Presidents just because their actions have foreseeable bad consequences. That seems pretty ridiculous. And, in any event, it’s not about motive at all. It’s about the nature of the action taken.
It’s easy to confuse these things because we often use the same language to describe both of them. If I’m offered money to kill someone, kill them, and then take the money, we can say that I “killed someone for money”. This could be a statement about my intent. At a criminal trial for murder, the facts of the case would suggest that I meant the person to die because I wanted the money.
However, in almost any other context, say a job interview, what we mean is that the conduct is objectively improper. You should not kill someone under circumstances where the only foreseeable result is they die and you get money.
The article also cites the immigration ban as an act where the objection is the improper motive. But were we arguing that Trump should be impeached because of the Muslim ban, the argument would not be that the impeachable conduct is that Trump shaped US policy out of a religious animus against Muslims. It would be that Trump said he would enact a complete shutdown of Muslim immigration and then enacted policy that effectively did just that. It would not matter whether he did it because he genuinely felt it was important to national security, whether he did it out of animus for Muslims, or whether he did it because he loves Muslims and believes they are badly needed where they currently are.
The argument in all cases would be that the actual things that happened and the circumstances under which they happened are wrongful. Trump withheld aid when Congress had approved it, and that’s wrongful. It doesn’t matter why he did it. Trump promised a shutdown of Muslim immigration, then he shut down Muslim immigration, and that’s wrongful.
Of course, it’s a fair argument that the conduct is not actually wrongful. And it’s also a fair argument that even if the conduct is wrongful, the President is just acting within his permissible discretion and impeaching for decisions Congress disagrees with is essentially giving Congress an election over the veto. Those are perfectly valid arguments.
What is simply wrong is saying that the allegations are about wrongful intent. They simply are not. They are presenting facts from which wrongful intent can be implied, but the same argument that shows wrongful intent can be implied from the acts also shows that the acts themselves appear wrongful.
