The editors of National Review, who devoted an entire issue in 2016 to making the case “Against Trump,” are doing it again in a new editorial arguing against President Donald Trump’s argument that impeachment requires a crime.
National Review sides with Democrats in arguing that a president can be impeached and removed even if he or she does not violate a statute. (The articles of impeachment passed by the House of Representatives against Trump do not even attempt to claim that he violated any law, but still accuse him of “High Crimes and Misdemeanors.”)
The “Never Trump” organ declares in a Jan. 22 editorial:
Instead of sticking to the most defensible case for a Senate acquittal of Trump, Republicans from the president on down are making arguments that range from the implausible to the embarrassing.
Hence the claim now being advanced half-heartedly by Republicans that presidents cannot be impeached for any abuse of power unless that abuse took the form of a criminal violation of a statute. The consensus of those who have studied this question is to the contrary. [Democrat] Jonathan Turley, the Republicans’ star witness in the House hearings about the constitutional issues raised by impeachment, has repudiated this view. Attorney General William Barr has in the past denied it. The Founding-era debates about impeachment are clear that Congress was to be able to remove a president from office if he had exercised his legal powers in an abusive way. One example that came up during those debates: What if the president tacitly encouraged a crime and then pardoned the perpetrator? The pardon power is arguably unreviewable, and certainly very nearly so. It was left to the judgment of a majority of the House and a supermajority of the Senate, as always under the supervision of the voters, whether a president’s conduct had rendered his continuation in office intolerable.
Attempts to impeach presidents have thus frequently combined charges of crimes with charges of non-criminal abuses.
Note that the National Review does not cite a single example of a president who was impeached without an actual violation of a law being alleged. That is because there are no such examples.
As Breitbart News noted last year, even the radical Republicans who impeached President Andrew Johnson — an impeachment remembered by history as an abuse of the House’s power for political purposes — contrived a statute, the unconstitutional Tenure of Office Act, for him to violate first.
Constitutional scholars debate these issues. But the timing of the argument — coming in the midst of the Senate impeachment trial — arguably suggests that Never Trump has never stopped hating Donald Trump for winning.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.