Book World: Still undecided on impeachment? Here’s some help from Neal Katyal

Impeach: The Case Against Donald Trump

By Neal Katyal with Sam Koppelman

Mariner/Houghton Mifflin Harcourt. 214 pp. $14.99. Paperback

Book jacket: Impeach: The Case Against Donald Trump
Photo by: Mariner/Houghton Mifflin Harcourt.
Copyright: Handout via The Washington Post

This book is for the few Americans still open to persuasion. Roughly half favor President Trump’s impeachment and removal from office. Slightly fewer demand his retention. More tellingly, that sentence could have been written a year ago, or even two. Most minds seem set, and Neal Katyal wants to help the slim remainder. “My goal with this book isn’t to convince you that President Trump should be impeached, though I do make the case,” he begins “Impeach: The Case Against Donald Trump.” It is instead “to provide you with the information you need to decide for yourself.”

Katyal’s brief primer, shorter than it would appear given the hefty appendix of widely circulated key documents, offers as concise and evenhanded a summation of the accusations currently weighing on the president (and the nation) as one can find between two covers. Read this if undecided, and as promised you will be far better prepared to offer a thoughtful verdict. It even offers those already armed with firm convictions a list of useful rejoinders to the most oft-heard critiques of Trump’s impeachment, while also pointing out a few weaknesses in the case against the president. With holiday-season office parties and family gatherings in the offing, so too the potential for uncomfortable political discussions. Katyal’s contribution won’t guarantee a pleasant conversation, but it ups the odds that they’ll at least be more factual. That is, if one quotes him correctly, something a member of the House Judiciary Committee failed to do in a recent public hearing.

The book, when read comprehensively and not merely ravaged for political talking points, makes a persuasive case. Offering no new evidence or argument, but instead a prosecutor’s summation of information publicly revealed since September, Katyal, a former prosecutor and solicitor general during Barack Obama’s presidency, lays bare what any honest observer should already know: The president deployed the power of his office in pursuit of personal political gain.

Not everyone sees things this way. One citizen’s “perfect” call would seem another’s impeachable one. Katyal believes the latter and, more important, that the president’s actions crossed the critical but opaque line laid out by the Constitution’s authors that separates maladministration from malice. Read James Madison’s notes from the convention’s discussion of the matter (especially from July 20, 1787). If short on time, read instead Katyal’s conclusion that Trump’s actions mimic with eerie detail their worst fears of a presidency run amok, and of a chief executive unable or unwilling (or perhaps even uninterested) in safeguarding the people’s welfare. Only through the exertion of sheer and blinding partisan willpower can one disagree.

Partisan willpower is one thing we appear to have plenty of these days. Adrift within a polarized population, undecideds need some way to decide for themselves. Katyal recommends employing his “Yardstick Rule” as a first step, because “the only way to preserve the rule of law is to apply the same standard to everyone, regardless of whether or not you agree with their views.” Don’t ask if the case lodged against a president you despise would lead you to favor his impeachment. Ask if that same evidence, calmly reviewed and equally applied, warrants impeachment of one you like. Philosopher John Rawls said the same more eloquently with his notion of a veil of ignorance, denying deciders knowledge of the subject’s identity and their own, but a yardstick will do.

But how high should those equivalent yardsticks be placed? Here Katyal’s legal background leads him slightly astray. He knows that an impeachable act need not be a literal crime that exists on the books, yet he reflexively yearns throughout these pages for the simplicity of being able to cite Trump’s violation of a specific federal statute. Offering several potential criminal offenses, he lays out the standard required for conviction in federal court should such a broken statute be found, noting that criminal cases require proof “beyond a reasonable doubt.” Civil matters, Katyal adds for context, can be decided on “a preponderance of evidence,” and he quotes eminent legal scholar Charles Black’s prescription that impeachment should require “overwhelming preponderance of the evidence.”

Legal expertise in this matter clouds the issue, because an impeachment trial in the Senate ultimately employs no standard of proof beyond the body’s determination that it is time for a president to go. This is politics, not law, which is why the founders placed the impeachment process in the legislature’s hands and not the courts’. The legislature best represents popular sovereignty, thus your voice, expressed by your elected representative, matters as much as a chief justice’s in judging a president’s guilt on a charge of “treason, bribery, or high crimes and misdemeanors.”

Katyal looks to today’s laws and evidentiary standards, but on such a weighty constitutional issue it is better to seek guidance from those who knew the matter best. The Constitution’s authors would not have applied a yardstick or a veil when considering presidential malfeasance. They’d have pictured a face instead, asking if the deeds under discussion were ones their ideal of a virtuous president, George Washington, would ever have done. The same Washington who’d repeatedly put the nation’s welfare above his own, and who feared few things more than foreign interference within domestic politics.

You will not find this elusive standard in any legal textbook, because virtue is less measured than observed. Neither is Madison nor Washington returning to render their judgment. We must ultimately determine the standard in our own time, aided, Kaytal suggests, by words offered in 2008 by a then-obscure congressman from Indiana, Mike Pence: “The business of high crimes and misdemeanors goes to the question of whether or not the person serving as president of the United States puts their own interest, their personal interests, ahead of public service.”

This is as close to the founders’ sense as one is likely to find, which makes it all the more inconvenient for Trump that that congressman is now his vice president. Readers should add the “Pence Standard” to Katyal’s own “Yardstick Rule,” the author argues, when considering whether a president’s deeds merit impeachment and removal from office. Only then can citizens encourage their senators – in a real sense the only group whose opinions ultimately matter – to repeat the example of Kansas’ Edmund Ross at the close of the nation’s first impeachment trial. His selfless vote acquitted President Andrew Johnson in 1868, earning him the ire of his contemporaries but inclusion in John F. Kennedy’s famous litany of senatorial bravery in “Profiles in Courage.” Likewise, “throughout our history, at moments of great consequence,” Katyal observes, “partisans have been able to put aside their personal views for the good of the country.” Today’s legislators should “think about Senator Ross during President Johnson’s impeachment” when determining whether to support or oppose Trump’s removal.

There is one problem with this narrative, something you won’t find by reading this book or “Profiles in Courage.” Ross was bribed. History, nonetheless, recalls his vote approvingly. Only historians know or care about his motives. If senators today cannot be moved by the evidence Katyal provides or new information yet to come, this last, most critical group of potential undecideds might at least recall the lesson of that lonely Kansas senator: Years from now, people won’t judge or probably even recall your twisted rationales for reaching your decision, but will remember fondly only those who made the right one.

Engel is the founding director of the Center for Presidential History at Southern Methodist University and a co-author of “Impeachment: An American History.”

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