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Neal Katyal Lays Out Legal Argument For Trump Impeachment, Pointing To 'Core Bribery'

President Donald Trump walks to the Oval Office of the White House on Nov. 25.
Patrick Semansky
President Donald Trump walks to the Oval Office of the White House on Nov. 25.

In his new book Impeach: The Case Against Donald Trump, Neal Katyal, former acting solicitor general of the United States during the Obama administration, writes what he casts as the definitive legal argument about the impeachment inquiry.

Katyal, who is a lawyer and law professor at Georgetown University, argues that the circumstances that led to the impeachment inquiry of Trump are those that essentially led the Founding Fathers to include an impeachment clause in the Constitution.

"This is such a core impeachable offense — this is literally the president putting his personal interests over those of the American people," he tells Morning Edition host Rachel Martin. "This is what the clause is for."

At the heart of the inquiry is a phone call between Trump and Ukrainian President Volodymyr Zelenskiy in which Trump asked for Ukraine to open investigations, including one into a political rival. Impeachment inquiry witnesses have testified that the White House tied U.S.-Ukraine engagement, including a potential meeting with Trump, to the investigations. But Trump and his allies have denied that there was a "quid pro quo" exchange.

Trump's allies have also argued that he withheld congressionally approved military aid, another line of questioning in the inquiry, because of Ukraine's history of corruption, while Democrats allege it was part of the effort to get investigations. Multiple witnesses in the impeachment inquiry testified that they were not told why the aid was held up — or why it was ultimately released.

Interview Highlights

On why he thinks his book will change peoples' position on impeachment given that a recent poll by NPR/Marist/PBS showed that 65 percent of Americans said they can't imagine the inquiry changing their minds

I think we're very early into this. Two months ago the American people didn't even know the broadest outlines of this whole Ukraine story. Everything has been moving super-fast, and we're only in Chapter 1. And I wrote this book because Trump has a masterful ability to distract and to change the story and to confuse it and to throw up all sorts of chaff and make it so that Americans find it difficult to understand what the story is. ... So the book is just a simple, clear argument for why the president has to be impeached.

On the argument from Republicans, like Rep. Will Hurd of Texas, that the president pressuring Ukraine for investigations that would benefit his reelection bid is not appropriate but it's not an impeachable offense

Then I guess I'd want to ask Rep. Hurd what he thinks impeachment is for, because I am a constitutional historian. I went back to the Philadelphia [Constitutional Convention] of 1787 and asked that question: Why did our founders put impeachment in the document? And many of our founders, like Gouverneur Morris, were concerned [about having an impeachment clause] ... they said "Look, we'll have the election system, so the president will run for re-election and that's a way to check an abusive president." And then others, like James Madison, said "Well, wait a minute. What about if you have a president who gets help from a foreign government? What if you have a president who cheats and engages in self-dealing and puts his interests above the interests of the American people?" And then even Gouverneur Morris changes his mind and says, "Yeah, absolutely. We need an impeachment clause for those kinds of things."

So this is ... literally core impeachment. There's a debate about what is a high crime and misdemeanor. There isn't a debate about this because central — maybe the most important thing in our entire democracy — is our fair election system. And if you can allow a president or anyone, but particularly an incumbent president with all the powers of the commander in chief, to leverage those powers to guarantee or to help him in the re-election, we're not living in a democracy anymore, we're not living in a fair system in which our political system checks the abuse that we've known to expect in our lifetimes.

On what is an impeachable offense

Our founders put [high crimes and misdemeanors] in the Constitution [and] they were trying to figure out what it should mean, what should be an impeachable offense. There was an initial proposal that it should be for mal administration, for bad policies. That was rejected in favor of something much higher, what we call "high crimes and misdemeanors." The phrase is "treason, bribery or other high crimes and misdemeanors." And so bribery is one of the two offenses that our founders enumerated specifically in the Constitution. And as the book lays out in an entire chapter, there's no way, once you read the facts of what happened with Ukraine, to view this as anything but bribery, plain and simple. This is the president saying to another government, "Look, I'll give you some goodies but in exchange you've got to do a favor for me first though. And so I'll release the military aid, I'll give you a White House meeting, but the only way I'm going to do that is if you go and help me in my election campaign." That is core bribery. It'd be a criminal violation if a sitting president could be indicted. But it is certainly an impeachable offense.

On the so-called Pence standard

So the book starts at the beginning and asks "What is it that is a high crime and misdemeanor when you take it out of bribery and treason?" Because the phrase is "treason, bribery or other high crimes and misdemeanors." And helpfully, Vice President Pence, when he was in Congress in 2008, said that a high crime and misdemeanor is when the president puts his interests over the interests of the American people. Lawyers use fancy terms like "violation of fiduciary duties" and stuff like that. But Pence laid it out really clearly. He just said — Is the president acting in the nation's interest or is he acting in his personal interest? And here, when it comes to Ukraine, there's no way to look at this and think of it as anything else.

Heidi Glenn adapted this story for the Web.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Rachel Martin is a host of Morning Edition, as well as NPR's morning news podcast Up First.
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