President Donald Trump was impeached in the House of Representatives because he linked the provision of security aid to an embattled ally, Ukraine, with a request that its president announce a bogus investigation of Trump's political rival, Joe Biden. The evidence of Trump's malfeasance was compelling, and the president's conduct — putting political self before the interests of the nation — was egregious. But it did not seem, in the end, to matter to his supporters in Congress. In early February, along a predominantly party-line vote, the Senate acquitted Trump.
The evidence of Trump’s malfeasance was compelling, and the president’s conduct — putting political self before the interests of the nation — was egregious.
According to Trump's former national security adviser John Bolton in his new book, "The Room Where It Happened," Bolton knew of Trump's similar corrupt behavior beyond Ukraine. (The Trump administration sought to block distribution of the book, but a federal judge recently declined.) As The New York Times reported, Bolton knew that "Mr. Trump was willing to intervene in [Justice Department] investigations into companies like Turkey's Halkbank to curry favor with President Recep Tayyip Erdogan of Turkey or China's ZTE to favor" Chinese President Xi Jinping.
Trump was motivated, Bolton wrote, by political self-interest. Speaking with ABC News in an interviewed that aired Sunday, Bolton opined that the president's corrupt dealings with Turkey and China required further investigation. The failure of House Democrats to examine this additional corruption, Bolton wrote, and their sole focus on Ukraine amounted to "impeachment malpractice." Was it?
Bolton's revelations, assuming they are true, suggest that Trump spends his time in office offering crooked backroom deals to foreign leaders. This is depressing. But perhaps more depressing is the reality that had the House investigated these additional allegations, the outcome of the impeachment trial likely would have been the same — an acquittal.
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The precedent for presidential impeachment proceedings is thin (only Andrew Johnson and Bill Clinton — before Trump — were impeached). An impeachment comes wrapped in procedures and customs that make it seem like a legal proceeding, but, at its core, it is a political act. House impeachment managers made a political calculation to keep the inquiry narrow and to push it forward quickly in the absence of court rulings that might have pried open the door to documents and witnesses blocked by the president.
An impeachment comes wrapped in procedures and customs that make it seem like a legal proceeding, but, at its core, it is a political act.
The House decision felt problematic to me as a former federal prosecutor, on one level, because there was plenty of other evidence to be unearthed — something Bolton has now confirmed. There is no such thing as too much evidence, federal prosecutors will tell you. On another level, litigating White House intransigence in court would take a very long time — likely well past the coming election — and that delay would favor the president.
In criminal law, federal prosecutors can charge one defendant with multiple crimes in a single indictment. The federal rules of procedure specifically contemplate "joinder," and prosecutors prefer it when it applies: It is far more efficient to try one defendant one time on multiple charges than one defendant several times on each individual charge.
One combined trial paints a more complete picture of a defendant's misconduct for the jury. Logically, the rule on joinder requires that the multiple charges be related in some way. Joining completely unrelated crimes in a single indictment would be unfair to a defendant.
Based on Bolton's observations of the president's dealings with his counterparts in Turkey and China, joinder (as contemplated by the federal criminal rules) would have been appropriate ... if the case had been in federal court. Trump tried to link outcomes in Justice Department investigations to domestic politics — certainly conduct of a "same or similar character," as joinder rules require. More related evidence is simply more compelling. One false tax return could be a mistake; 10 false tax returns, coupled with 10 fraudulent bank loan applications, seem much more like a crime.
Federal prosecutors also use another rule — this one of evidence — to paint a more comprehensive picture for a jury. Generally, a prosecutor may not use a prior bad act to prove a defendant's bad character. That makes sense. It would be unfair if a jury convicted a defendant of a crime because he did a wholly unrelated bad thing in his past. But if a prosecutor has another use for the "other bad act" evidence — to prove, for instance, motive, intent or absence of mistake, then the prior bad act may be admissible. Again, that makes sense. A pattern of related bad conduct helps to prove bad intent.
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The House impeachment managers could have tried to obtain additional evidence involving Trump's machinations with Turkey and China. Those other bad acts paint a compelling picture of presidential misconduct, but only for a jury willing to hear and weigh evidence with an open mind. And more evidence is simply more compelling to whom? To real prosecutors and judges? Sure. To civilian juries in federal court? Sure. To political allies of the president in Congress? Nope. It did not seem to matter.
The House managers decided that the trade-off — more proof coupled with significant delays to obtain it — was not worth it. They were not trying their case in federal court before a dispassionate jury of 12 citizens. They were trying it before a jury of senators, the majority of whom supported the president regardless of his misconduct. House managers made a sensible political calculation — that federal criminal rules of procedure (joinder) and evidence (other bad acts), so important in a real court, would likely not have mattered to the Senate. House managers did not commit "impeachment malpractice," because Trump's congressional allies did not care about the facts. Sound familiar?
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Trump once boasted — as a candidate in January 2016 — that "I could stand in the middle of Fifth Avenue and shoot somebody, OK, and I wouldn't lose any voters." He can similarly try to strike corrupt bargains with foreign leaders for personal political gain and not lose any Senate supporters. That may be one of the most dispiriting lessons from Bolton's book.
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