President Donald Trump’s lawyers in his Senate trial, along with the usual enablers among elected Republicans, are hiding behind the argument that the president cannot be impeached for policy disagreements. Even Utah’s Sen. Mike Lee, who prides himself on his fidelity to the Constitution, is pitching softballs at Trump’s legal counsel about the president’s right to set policy.
If Trump were in the Senate dock for a policy dispute, Lee and others would be right — and I would be the first among the president’s critics to argue that he must be acquitted. But this is not a policy dispute, and if the president’s defenders win the day on this argument, then there will be no limit on what any president, ever, can do with the power of the office.
The “policy dispute” defense rests on the obvious truth that under Article II of the Constitution, the president of the United States has the right to set foreign policy. Subject to the restrictions of federal law, the Constitution and the power of the purse that is reserved for Congress in Article I, the president can choose to bring us closer to some countries, give the cold shoulder to others, and negotiate treaties and other international agreements as he or she chooses.
A secret plot run by shady figures
None of that is at issue in this impeachment. What Trump did was to state one policy in public — that is, the policy his subordinates and the executive departments of the United States were expected to follow — and then to run a second policy, a plot concocted in secret and executed by an unaccountable circle of conspirators.
This scheme (it is too misleading even to call it a “policy”) was a rogue operation against Ukraine’s new president, Volodymyr Zelensky, conducted by Trump’s personal lawyer Rudy Giuliani and a squad of shady characters, none of whom were answerable to anyone but Trump himself. (One wonders how Sen. Lee’s constitutionalism squares with foreign operations being conducted by the likes of Giuliani and Lev Parnas, out of sight of pesky members of Congress and their annoying questions.)
Official U.S. policy was to help Ukraine resist Russia as a sign of our commitment to international order, the rule of law and the indivisible security of the Atlantic community and the world itself.
Trump’s personal goal, however, was to hold Ukraine hostage and risk the lives of its people and soldiers until Zelensky would agree to stand in front of a television camera and lie for the benefit of one Donald J. Trump.
Trump and his apologists are playing a double game here, arguing that the president has the right to set policy, and then picking and choosing which policy civil servants and appointees were supposed to follow. This allows them to recast the objections of people like Ambassador to Ukraine William Taylor, National Security Council officials Fiona Hill and Army Lt. Col. Alexander Vindman, as well as former national security adviser John Bolton, as insubordination or disloyalty.
In reality, there was no way that anyone in the government could have served both the official U.S. policy and Trump’s hidden objectives at the same time, and we should be grateful that so many of them chose the Constitution over Trump.
In effect, the president’s defenders are arguing that whatever a president does — legal or illegal, constitutional or unconstitutional — is “policy” and therefore obligates every member of the government to follow it without question.
This is madness. If the outcome of this Senate trial is to accept that every act committed by a president is “policy,” we might as well delete impeachment from the Constitution and remove every last vestige of congressional oversight and control. We will instead have to accept that for his or her entire term of office, a president of the United States may engage in any misconduct he or she chooses so long as it is called a “policy.”
An extortion scheme is not ‘policy’
Sen. Lee and others should be ashamed of themselves even to feint at this argument. Our government functions because we trust every president to put the interest of the country above personal interest. We may not always agree on “the national interest,” but we know, or at least should know, the difference between careful stewardship over a policy of assistance to a friend at war with a common enemy, and an odious, scummy extortion plot hatched purely for the personal gain of one man.
When pressed, Trump’s people argue that President Barack Obama also refused to aid Ukraine, an argument so mendacious that it is almost beneath response. Obama and other presidents have negotiated with Congress over whether aid should be given to many countries, and Congress has regularly set conditions for the granting of such assistance. Obama had concerns about escalating the conflict in Ukraine, a policy with which I disagreed, but which he stated clearly as a foreign policy matter.
That’s not what happened here. Trump’s own executive departments certified that all conditions had been met. In theory, Congress and the White House were on the same page about helping Ukraine fight back against Russia. Trump and his minions worked to hold back the aid anyway, shaking down Zelensky while trying to keep the rest of the government in the dark. That’s not a “policy,” that’s a conspiracy.
President Trump has the right to set policy. He does not have the right to shake down our friends. He does not have the right literally to break the law and withhold aid duly authorized by the people of the United States, purely for his personal benefit.
Trump has demanded that he be acquitted, and the GOP’s terrified senators will obey his command. But let them at least stop the nonsense about how extortion is a “policy.” They’ve done enough damage without inflicting yet one more injury on the Constitution.
Tom Nichols is a professor at the Naval War College and a member of USA TODAY’s Board of Contributors. The views expressed here are solely his own. Follow him on Twitter: @RadioFreeTeam