There clearly are good reasons for members of Congress to contemplate impeachment of President Trump. He tried to secure assistance from Ukrainian President Zelensky to promote his reelection campaign, he has used his office to promote his personal financial interests, and he has tried to obstruct justice. Whether he has abused his position to the level of high crimes and misdemeanors can be determined through further investigation and proceedings.

But some members of Congress, as well as some political observers, have invoked arguments that go too far. As the House moves forward with its impeachment inquiry, it is important that it does so on solid ground—otherwise, it risks making the process look like it’s more about partisan disagreements than about high crimes and misdemeanors. Here are some misguided arguments that have been made.

  1. According to two prominent critics of President Trump, the paradigmatic case for impeachment is “if he used his powers to put his own interests above the nation’s.” It’s clearly a problem for presidents to put their personal interests above the national interest. On the other hand, presidents regularly exploit their power to promote their own interests over the national interest, as in the case of the multiple presidents who manipulated our policy toward Cuba in the run-up to their reelection bids or who directed federal funds to electoral swing states. For a variety of practical reasons, it’s not enough to simply claim that a president put personal interests first. Congress needs to carefully identify when favoring personal interest over the national interest is serious enough to justify impeachment. Some examples of  potential grounds for impeachment are included at the beginning of this post. This also takes us to a second claim.
  2. Many critics have condemned Trump for compromising our national security interests in the Ukraine to promote his personal interests. We have good reasons to support democratic change in the Ukraine and oppose Russian imperialism. And Russia clearly poses risks to our national security with its computer hacking. But Russia’s attacks on the sovereignty of the Ukraine do not threaten our national security. We’ve been down this road before, as with our wars in Vietnam and Iraq. We need to be much more careful when it comes to invoking national security interests. The problem with the Ukraine and Trump lies in his trying to secure Zelensky’s help for his reelection.
  3. Trump has been accused of violating election law with his payments to Stormy Daniels and Karen McDougal. This is the least credible argument. It requires a dubious reading of campaign finance law to say that it covers the paying of hush money to hide consensual intimate relationships with another adult. Voters need to know a lot of information about presidential candidates, but not about the candidates’ sex lives or whether they are spending personal funds to keep their sex lives private (absent allegations of sexual harassment or other abuse).

Impeachment is a critical tool for Congress to check presidential misconduct. But as we saw with the Clinton impeachment, it’s important that it not be used to promote partisan interests. Members of Congress need to be sure that when they police presidential failures to uphold the Constitution, they remain faithful to their own constitutional duties.

Photo of David Orentlicher David Orentlicher

David Orentlicher is the Cobeaga Law Firm Professor of Law at UNLV William S. Boyd School of Law. Nationally recognized for his expertise in constitutional law and health law, Dr. O has testified before Congress, had his scholarship cited by the U.S. Supreme…

David Orentlicher is the Cobeaga Law Firm Professor of Law at UNLV William S. Boyd School of Law. Nationally recognized for his expertise in constitutional law and health law, Dr. O has testified before Congress, had his scholarship cited by the U.S. Supreme Court, and has served on many national, state, and local commissions.

A graduate of Harvard Medical School and Harvard Law School, Dr. O is author of numerous books, articles, and essays on a wide range of topics, including presidential power, affirmative action, health care reform, physician aid in dying, and reproductive decisions. Dr. O’s work has appeared in leading professional journals, as well as in the New York TimesTimeUSA TodayCNN Opinion, the Chicago Tribune, and other major newspapers.

Between 2002 and 2008, Dr. O served in the Indiana House of Representatives, where he authored legislation to promote job creation, protect children from abuse and neglect, and make health care coverage more affordable. His most recent book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive, draws on his experience with partisan conflict as an elected official and his expertise in constitutional law to discuss reforms that would address the country’s high levels of political polarization.