Trump’s acquittal may have profound impact on presidential power

President Trump’s acquittal at the end of his Senate trial could set a new bar for future impeachment trials, according to experts and historians interviewed by The Hill.

Trump’s acquittal, which came Wednesday, was largely preordained. A GOP-majority Senate was never likely to convict a Republican president, particularly one with Trump’s influence over his party.

It may take years or even decades to truly determine what kind of mark Trump’s trial leaves, but historians and legal experts say an acquittal will likely lower the bar for permissible presidential conduct and give the executive branch more power in the face of congressional oversight — if the decision is based in part on the Trump legal team’s expansive view of presidential power.

“Everyone understood that acquittal was inevitable, but few expected the president’s lawyers to argue for so sweeping a standard for impeachable conduct as they did,” said James Robenalt, an attorney at Thompson Hine and creator of a continuing legal education class on Watergate.

“There is a huge danger that the precedent set will stifle future impeachments,” he said.

Much will depend on whether Senate Republicans tie their votes to acquit to a central argument of Trump’s defense team, that he should be acquitted because impeachment articles must allege statutory crimes, which the House-passed articles did not contain.

“It depends somewhat on what the Republican senators say when they justify acquitting President Trump,” said Stephen M. Griffin, a Tulane University law professor.

In a lengthy speech on Jan. 27, defense team lawyer Alan Dershowitz cited numerous legal authorities, some dating back to English common law, to argue that concepts like “abuse of power” that don’t appear in a criminal codebook cannot be the basis for impeachment.

Neither of the two impeachment articles the House leveled against Trump — abuse of power and obstruction of Congress — alleged violations of statutory crimes.

The abuse of power impeachment article against Trump accuses him of inviting foreign interference to help him in the upcoming 2020 election. The alleged behavior involved Trump suspending nearly $400 million in U.S. aid to Ukraine to pressure that country into investigating former Vice President Joe Biden, a leading Democratic candidate for president, and Biden’s son.

Democrats argued that the view of mainstream legal scholars is that a crime need not be alleged. They also claimed the Framers intended impeachment to encompass a wide spectrum of misconduct and the Constitution’s reference to “high crimes and misdemeanors” applies broadly to injuries done to society by public officeholders.

Legal experts said Senate Republicans could effectively redefine the Constitution’s impeachment clause if they embrace the view that House articles must contain crimes to be valid.

“If they view the lack of a crime as key, then I do think that will influence future impeachments,” Griffin said. “One of the characteristics of this impeachment is that Democrats made no effort to argue Trump had committed a crime.”

Later in the trial, Dershowitz, an opinion contributor to The Hill, upped the ante. On Wednesday he said that anything a president does to win reelection is not impeachable as long as it doesn’t involve a criminal act and they believe their election is in the public interest.

“If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz said.

Many thought Dershowitz had endorsed a view of presidential power so broad as to be virtually limitless in terms of permissible presidential conduct, with some dubbing his philosophy the “Dershowitz Doctrine.”

Dershowitz, for his part, says many in the media mischaracterized his argument.

Still, his remarks were the furthest Trump’s legal team had gone in defending the president’s actions.

“First, his lawyers said that Trump had done nothing wrong. Second, they argued that abuse of power is not impeachable. The defense ended by asserting that the president could do anything he wants (short of an indictable crime) to assure his election,” said Allan Lichtman, an American University political scientist and author of “The Case for Impeachment.”

“This doctrine, which Dershowitz failed to corroborate with any judicial or scholarly authority, represented what the founders feared most about a rogue president and why they advisedly put impeachment into the Constitution,” Lichtman said.

Some scholars say Senate Republicans could rein in the expansive view of presidential power by articulating clear limiting principles when they discuss their acquittal votes, said Robert Tsai, a constitutional expert and law professor at American University.

“There may be a narrower precedent created and less damage going forward if senators repudiated the Dershowitz approach — a president who acts with mixed motives, some corrupt and some in the public interest — and also reject the president’s claim that a statutory crime must be identified,” he said. 

House Democrats’ second impeachment article alleged that Trump obstructed Congress through his administration’s blanket refusal to comply with subpoenas issued by congressional investigators.

During Trump’s impeachment trial, both legal teams argued that history would judge the Senate harshly if it failed to support their view.

House Intelligence Committee Chairman Adam Schiff (D-Calif.), the lead House impeachment manager, argued that failing to hear from people with firsthand accounts in this case will set a dangerous precedent for future trials.

“You can bet in every impeachment that follows — whether it is a presidential impeachment or an impeachment of a judge —  if that judge or president believes that it is to his or her advantage that there shall be a trial with no witnesses, they will cite the case of Donald J. Trump,” he said.

Deputy White House counsel Patrick Philbin countered Schiff’s points by making the opposite appeal to precedent.

Philbin warned that senators risked encouraging future House investigators to rush the impeachment process, leaving it to the Senate to compile a complete record of relevant witness testimony and evidence. 

“To show up not having done the work and to expect that work to be done in the Senate, by this body, has grave consequences for the institutional interests for this body and it sets a precedent … for the Senate and the House,” Philbin said, warning against establishing a “new normal.”

Legal experts said Senate Republicans risk ratifying Trump’s unprecedented resistance to congressional subpoenas if they base their acquittal vote on his team’s legal argument.

“The sheer scale of resistance to lawful subpoenas — both before and after the House voted to impeach President Trump — dwarf that of every past president,” Tsai said. “I think you’ll see executive branch officials citing resistance of subpoenas and the Senate’s refusal to do more here as some kind of affirmation of this new brand of resistance to accountability.”

Neither article of impeachment reached a majority in Wednesday’s votes, much less the two-thirds needed to remove Trump from office. 

—Updated Wednesday at 5:28 p.m.