Impeachment

Floor Speech

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Mr. DURBIN. Mr. President, Benjamin Franklin knew the strength of our Constitution, but he also knew its vulnerability. His words, oft repeated on this floor--``a republic, if you can keep it''--were a stark warning. Franklin believed every generation could face the challenge of protecting and defending our Nation's liberty-affirming document.

We know this personally. Before we can legally serve as Senators, we must publicly swear an oath to support and defend the Constitution of the United States. A trial of impeachment, more than any other Senate assignment, tests the oath each one of us takes before the people of this Nation.

The President's legal team warns us of the danger of impeachment and conviction. They tell us to think carefully about what the removal of a duly elected President could mean for our democracy. But if we should have our eyes wide open to the danger of conviction, we also cannot ignore the danger of acquittal. The facts of this impeachment are well known, and many Republicans concede that they are likely true. They believe as I do, that President Trump pressured the Ukrainian President by withholding vital military aid and a prized White House visit in return for the announcement of an investigation of the Bidens and the Russian-concocted CrowdStrike fantasy.

Some of these same Republicans acknowledge that what the President did was ``inappropriate.'' At least one has used the word ``impeachable.'' But many say they are still going to vote to acquit him regardless. So let's open our eyes to the morning after a judgment of acquittal. Facing a well-established election siege by Russia and other enemies of the United States, we, the Senate, will have absolved a President who continues to brazenly invite foreign interference in our elections. Expect more of the same.

A majority of this body will have voted for the President's argument that inviting interference by a foreign government is not impeachable if it serves the President's personal political interests.

We will also have found for the first time in the history of this Nation that an impeachment proceeding in the Senate can be conducted without any direct witnesses or evidence presented on either side of the case and that a President facing impeachment can ignore subpoenas to produce documents or witnesses to Congress.

Alexander Hamilton described the Senate as the very best venue for an impeachment trial because it is ``independent and dignified,'' in his words. When the Senate voted 51 to 49 against witnesses and evidence, those 51 raised into question any claim to independence or dignity.

In addition, an acquittal will leave the extreme views stated by the President's defense counsel Alan Dershowitz unchallenged: first, that abuse of power is not an impeachable offense; second, that the impeachment charges against the President were constitutionally insufficient; and, third, his most dangerous theory, that unless the President has committed an actual crime, his conduct cannot be corrupt or impeachable as long as he believes it was necessary for his reelection.

By this logic, Professor Dershowitz would have excused Richard Nixon's ordering of IRS audits of his political enemies. Mr. Dershowitz has created an escape clause to impeachment, which is breathtaking in its impact and unfounded in our legal history. We have all received a letter signed by nearly 300 constitutional law scholars flatly rejecting the arguments offered by the President's defense team.

To the United States Senate: The signatories of this letter are professors of law and scholars of the American constitution who write to clarify that impeachment does not require proof of crime, that abuse of power is an impeachable offense, and that a president may not abuse the powers of his office to secure re-election, whatever he may believe about how beneficial his continuance in power is to the country. Impeachable conduct does not require proof of any crime

Impeachment for ``high Crimes and Misdemeanors'' under Article II of the U.S. Constitution does not require proof that a president violated any criminal law. The phrase ``high Crimes and Misdemeanors'' is a term of art consciously adopted by the drafters of the American constitution from Great Britain. Beginning in 1386, the term was frequently used by Parliament to describe the wide variety of conduct, much of it non-criminal abuses of official power, for which British officials were impeached.

The phrase ``high crimes and misdemeanors'' was introduced into the American constitution by George Mason, who explained the necessity for expanding impeachment beyond ``treason and bribery'' by drawing his colleagues' attention to the ongoing parliamentary impeachment trial of Warren Hastings. Hastings was charged with a long list of abuses of power that his articles of impeachment labeled ``high crimes and misdemeanors,'' but which even his chief prosecutor, Edmund Burke, admitted were not prosecutable crimes. On George Mason's motion, the Philadelphia convention wrote into our constitution the same phrase Parliament used to describe Hastings' non-criminal misconduct.

No convention delegate ever suggested that impeachment be limited to violations of criminal law. Multiple founders emphasized the need for impeachment to extend to plainly non- criminal conduct. For example, James Madison and George Nicholas said that abuses of the pardon power should be impeachable. Edmund Randolph believed that violation of the foreign emoluments clause would be.

Thus, Alexander Hamilton's famous observation in Federalist 65 that impeachable offenses ``are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself'' was not merely an advocate's rhetorical flourish, but a well- informed description of the shared understanding of those who wrote and ratified the Constitution.

Since ratification, one senator and multiple judges have been impeached for non-criminal behavior. The first federal official impeached, convicted, and removed for ``high crimes and misdemeanors'' was Judge John Pickering, whose offenses were making bad legal rulings, being drunk on the bench, and taking the name of the Supreme Being in vain.

Among presidents, the tenth and eleventh articles of impeachment against President Andrew Johnson charged non- criminal misconduct. The first and second articles of impeachment against President Richard Nixon approved by the House Judiciary Committee allege both criminal and non- criminal conduct, and the third alleges non-criminal obstruction of Congress. Indeed, the Nixon House Judiciary Committee issued a report in which it specifically rejected the contention that impeachable conduct must be criminal.

The consensus of scholarly opinion is that impeachable conduct does not require proof of crime.

abuse of power is an impeachable high crime and misdemeanor

It has been suggested that abuse of power is not an impeachable high crime and misdemeanor. The reverse is true. The British Parliament invented impeachment as a legislative counterweight to abuses of power by the Crown and its ministers. The American Framers inserted impeachment into our constitution primarily out of concern about presidential abuse of power. They inserted the phrase ``high crimes and misdemeanors'' into the definition of impeachable conduct in order to cover non-criminal abuses of power of the type charged against Warren Hastings.

As Edmund Randolph observed at the Constitutional Convention, ``the propriety of impeachments was a favorite principle with him'' because ``[t]he Executive will have great opportunities of abusing his power.'' In Federalist 65, Hamilton defined ``high crimes and misdemeanors'' as ``those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.''

This understanding has often been expressed in the ensuing centuries. For example, in 1926, the House voted to impeach U.S. District Judge George English. The Judiciary Committee report on the matter reviewed the authorities and concluded:

Thus, an official may be impeached for offenses of a political character and for gross betrayal of public interests. Also, for abuses or betrayals of trusts, for inexcusable negligence of duty [or] for the tyrannical abuse of power.

Two of the three prior presidential impeachment crises have involved charges of abuse of power. The eleventh article of impeachment against President Andrew Johnson alleged that he abused his power by attempting to prevent implementation of reconstruction legislation passed by Congress in March 1867, and thus violated Article II, Section 3, of the constitution by failing to ``take care that the laws be faithfully executed.'' The second article of impeachment against Richard Nixon charged a litany of abuses of presidential power, including ``interfering with agencies of the Executive Branch.''

Even if no precedent existed, the constitutional logic of impeachment for abuse of presidential power is plain. The president is granted wide powers under the constitution. The framers recognized that a great many misuses of those powers might violate no law, but nonetheless pose immense danger to the constitutional order. They consciously rejected the idea that periodic elections were a sufficient protection against this danger and inserted impeachment as a remedy.

The consensus of scholarly opinion is that abuse of power is an impeachable ``high crime and misdemeanor.''

A PRESIDENT MAY NOT ABUSE HIS POWERS OF OFFICE TO SECURE HIS OWN RE- ELECTION

Finally, one of President Trump's attorneys has suggested that so long as a president believes his re-election is in the public interest, ``if a president did something that he believes will help get him elected, in the public interest, that cannot be the kind of quid pro quo that results in his impeachment.'' It is true that merely because a president makes a policy choice he believes will have beneficial political effects, that choice is not necessarily impeachable. However, if a President employs his powers in a way that cannot reasonably be explained except as a means of promoting his own reelection, the president's private conviction that his maintenance of power is for the greater good does not insulate him from impeachment. To accept such a view would be to give the president carte blanche to corrupt American electoral democracy.

Distinguishing between minor misuses of presidential authority and grave abuses requiring impeachment and removal is not an exact science. That is why the Constitution assigns the task, not to a court, but to Congress, relying upon its collective wisdom to assess whether a president has committed a ``high crime and misdemeanor'' requiring his conviction and removal. SIGNATORIES

Frank O. Bowman, III; Michael Gerhardt; Laurence H. Tribe; Brenda Wineapple; Timothy Naftali; Neal Kumar Katyal; Pamela S. Karlan; Noah Feldman; Jack M. Balkin; David A. Strauss; Martha Minow; Geoffrey R. Stone; Walter Dellinger; Charles Fried; Erwin Chemerinsky.

Paul Butler; Ralph G. Steinhardt; Dawn Johnsen; Sanford Levinson; John Mikhail; Michael C. Dorf; Julie R. O'Sullivan; Girardeau A. Spann; Richard Primus; Corey Brettschneider; Victoria Nourse; Robin West; Abbe Smith; James V. Feinerman; Jane M. Spinak, Esq.

Peter L. Strauss; Jeffrey Fagan; Ira C. Lupu; David C. Vladeck; Eric M. Freedman; Carol L. Chomsky; Jennifer Taub; Naomi R. Cahn; Stephen I. Vladeck; Jed Shugerman; Ilya Somin; Michael Diamond; Paul Litton; Charles G. Geyh; Prof. Joshua Schwartz.

Alan B. Morrison; Deborah Epstein; Dale A. Whitman; Rodney J. Uphoff; Barry Friedman; Greer Donley; Justin Levitt; Barbara A. Atwood; Daniel J. Steinbock; Samantha Buckingham; Maxwell Stearns; Lauren E. Willis; Kirsten Matoy Carlson; Steven Alan Childress; Liz Ryan Cole.

Florence Wagman Roisman; Margo Kaplan; Mark A. Graber; Sally Goldfarb; Carli N. Conklin; Kandice Johnson; Jeffrey O. Cooper; John Lande; Mary M. Beck; Benjamin G. Davis; Randy Diamond; Melanie DeRousse; Gerald S. Dickinson; Laura Rovner; J. Amy Dillard; Martha Albertson Fineman; Nancy Ota; Ann F. Thomas.

Prof. Dr. Jennifer A. Drobac; Cynthia Matson Adams; Denise Platfoot Lacey, Esq.; David A. Fischer; Ann E. Freedman; Michael A. Middleton; S. David Mitchell; Lance Gable; Julie Goldscheid; Stuart Green; Alan K. Chen; Christopher Hawthorne.

Joshua Aaron Jones, JD, LL.M.; David R. Katner; Nicole B. Godfrey; Stefan H. Krieger; Sarah Lamdan; Laurie L. Levenson; Ann E. Tweedy; Caroline Mala Corbin; Nicole K. McConlogue; David S. Cohen; Perry Dane; Stephen Meili.

James May; Nancy Ota; Catherine J. Ross; April Dawson; Professor Laura J. Hines; Jane C. Murphy; John T. Nockleby; Professor Nancy Levit; Jonathan Oberman; Michele Gilman; Katherine A. Perez; Stephen Loffredo; William D. Rich.

Joyce Saltalamachia; Dveera Segal; Liz Ryan Cole; Ann Shalleck; Kate Shaw; Earl Singleton; Keith Werhan; Mary B. Culbert; Robert Calhoun; Christine Minhee; Nancy Chi Cantalupo; Professor Steven Zeidman; Kathleen Kim; Professor Lisa Kelly; Alan Saltzman.

Prof. Karl Manheim; Jeffrey M. Feldman; Leah M Litman; Elliott Milstein; Prof. Deborah A Ramirez; Stacy Hawkins; Jeffrey T. Renz; Mary Crossley; Barbara S. Barron; Ira P. Robbins; Clark B. Lombardi, JD, PhD; Penny M. Venetis; Michael Lawrence; Joanna L. Grossman; Theo Liebmann.

Paul L. Tractenberg; Mikah K. Thompson; Professor Vernon Valentine Palmer; Barbara Stark; Anya Bernstein; Ruti Teitel; William D. Araiza; Lauren Gilbert, Esq.; Christopher E. Czerwonka; James May; Kimberly West-Faulcon; Natalie Gomez- Velez; Phyllis Goldfarb; Rachel Van Cleave; Arnold Rochvarg; Lindsey Webb.

Ethan J. Leib; Carlton F.W. Larson; Natalie M. Chin; Heidi K. Brown; Elizabeth McCormick; Bernard P. Perlmutter, Esq.; Robert St. Martin Westley; John Burkoff; David Rudenstine; Inge M. Van der Cruysse; James Levin; Babe Howell; Robert Knowles; Yvonne Lindgren; Mae Kuykendall.

Marie A. Failinger; Katherine Mattes; Rebecca L. Brown; David B. Cruz; Christoph Henkel; Jim Rowan; Elizabeth B. Cooper; Debra Bechtel; Cornell Clayton; Paul Barron; Allie Robbins; Wanda M. Temm; Jean C. Love; Rosemary Salomone; Rachel Vorspan; Beryl Blaustone.

Susan Etta Keller; Tom I. Romero, II J.D., Ph.D.; Prof. Dr. Frank Emmert, LL.M., FCIArb; Kiel Brennan-Marquez; Marcy Strauss; David A. Harris; Catherine M. Grosso; Lissa Griffin; Steven Mulroy; William W. Berry III; Richard D. Friedman; Anthony M. Dillof; Leslie Rose; Arthur B. Lafrance; Pamela R. Metzger.

Eric J. Miller; Marianne Wesson; Stephen F. Smith; Professor Mark A. Dotson; Donna Coker; Janet Dolgin; Lynda G. Dodd, J.D., Ph.D.; David B. Wexler; Prof. Deborah A Ramirez; Ric Simmons; Matthew R. Hall; Miriam R. Albert; Jennifer A. Gundlach; Michael M. O'Hear.

Robert Westley; Lolita Buckner Inniss; Margie Paris; Amy T. Campbell; Prof. Bruce A. Boyer; Fabio Arcila, Jr.; Michael L. Perlin, Esq.; Vincent M. Southerland; Robert M. Sanger; Cynthia Godsoe; Caren Morrison; Daniel JH Greenwood; Paula C. Johnson; Michael H. Hoffheimer.

Jenia I. Turner; Ben Trachtenberg; Catherine Powell; Ruth- Arlene W. Howe; Charisa Kiyo Smith, Esq.; Dana Alicia Thompson; Mark C. Modak-Truran, J.D., Ph.D.; Professor Irma S. Russell; Nicholas W. Allard; Sarah E. Ricks; Daniel Farber; M. Isabel Medina; Evan Caminker; Miguel Schor; Nina Chernoff.

Rashmi Goel; Barbara Ann White; Monica Eppinger; Jimmy Gurule; Odeana R. Neal; Gabriel J. Chin; Margaret Montoya, J.D.; Anil Kalhan; Rebecca K. Stewart; Anthony Paul Farley; Sahar Aziz; Jaya Ramji-Nogales; Amy Widman; Perry Dane; Maya Manian.

Amanda Leiter; Paula Galowitz; Jesse A. Goldner; Anthony Paul Farley; Elizabeth Nevins; Rick Wilson; Prof. Jonathan Askin; James R. Maxeiner; Genevieve Byrne; Daniel L. Hatcher; Fred B. Brown; Joseph Pileri; David Jaros; Mark N. Aaronson.

Sonia Gipson Rankin; Richard C. Reuben; Sam Erman; Katy Ramsey; Janet M. Calvo; R. Wilson Freyermuth; Sarah Helene Duggin; Danaya C. Wright; Charles S. Bobis; Kim D. Ricardo; James Gray Pope; Chuck Henson; George W. Conk, M.A., J.D.

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Mr. DURBIN. Yet a verdict of acquittal by the Senate blesses the professor's torturous reasoning. An acquittal verdict would also give President Trump's personal attorney Rudy Giuliani a pat on the back to continue his global escapades, harassing American Ambassadors whose service he distrusts, and lounging at European cigar bars with an entourage of post-Soviet amigos.

More than anything, a verdict of acquittal says a majority of the Senate believes this President is above the law and cannot be held accountable for conduct abusing the powers of his office. And make no mistake, this President believes that is true.

On July 23--2 days before his phone call with President Zelensky-- President Trump spoke to a group of young supporters and he said: ``I have an Article II, where I have the right to do whatever I want as president.''

This is the dangerous principle that President Trump and his lawyers are asking us, with a verdict of acquittal, to accept. Under the oath I have sworn, I cannot.

What does it say of this Congress and our Nation that in 3 years, we have become so anesthetized to outrage that, for a majority in this Senate, there is nothing--nothing--this President can do or say that rises to the level of blushworthy, let alone impeachable?

Nearly 6 years ago, I traveled to Ukraine with a bipartisan group of Senate colleagues led by John McCain. It was one of John's whirlwind visits where we crammed 5 days' worth of meetings into 48 hours. We arrived in Kyiv on March 14, 2014. It was bitterly cold. Ukrainians had just ousted a corrupt, Russian-backed leader who looted the national treasury and hollowed out their nation's military. They had done so by taking to the streets, risking their lives for democracy and a better future. More than 100 ordinary citizens in Kyiv had been killed by security forces of the old government simply because they were protesting for democracy.

Seeing Ukraine in a fragile democratic transition, Vladimir Putin pounced on them, ordered an invasion and occupied Crimea. Putin and his thinly disguised Russian thugs were on the verge of seizing Donetsk in the east.

I asked the Prime Minister what Ukraine needed to defend itself. He said:

Everything. We don't have anything that floats, flies or runs.

Many may not appreciate how devastating Russia's war on Ukraine has been to that struggling young democracy. Their costly battle with Russia was for a principle that is really basic to America's national security as well.

In a country with one-eighth of our population, more Ukrainian troops have died defending Ukraine from Russia than American troops have perished in Afghanistan.

During the months President Trump illegally withheld military aid, as many as two dozen Ukrainian soldiers were killed in battle. By withholding security aid from Ukraine for President Trump's personal political benefit, he endangered the security of a fragile democracy.

Can there be any deeper betrayal of a President's responsibility than to endanger our national security and the security of an ally for his own personal political gain?

And to those of my colleagues who describe the President's conduct as merely ``inappropriate,'' I disagree. Disparaging John McCain's service to our country is disgusting and inappropriate. What this President has done to Ukraine crosses that line. It is impeachable.

I will close by remembering two public servants who, like us, were called by history to judge a President. Tom Railsback passed away as this impeachment proceeding began. He was 2 days shy of his 88th birthday. I knew Tom. I considered him a friend.

In 1974, Tom was a Republican Congressman from Moline, IL, and a member of the House Judiciary Committee. He regarded President Nixon as a political friend. He believed that Richard Nixon had achieved much for America, including the opening of the door to China.

After studying the Watergate evidence closely, Congressman Railsback came to believe that Richard Nixon had violated the Constitution. When President Nixon refused to turn over records and recordings requested by Congress, Tom Railsback took to the House floor to say: ``If the Congress doesn't get the material we think we need and then votes to exonerate, we'll be regarded as a paper tiger.''

When he voted to impeach President Nixon, Tom believed it was probably the end of his career, but he was elected four more times. To his dying day, Tom Railsback was proud of his vote. He voted for his country above his party.

Bill Cohen--also a Republican--was a freshman Congressman at the time and a member of the House Judiciary Committee. He studied the evidence with Tom Railsback and then worked with him to draft Articles of Impeachment.

Bill Cohen received death threats, and he thought his votes to impeach President Nixon would be the end of his political career. But he went on to a distinguished career in the House, three terms in the Senate, and served as Secretary of Defense.

Listen to what Bill Cohen said recently of President's Trump's actions:

This is presidential conduct that you want to be ashamed of. He is corrupting institutions, politicizing the military, and acts like he is THE law.

And then Cohen added:

If [the President's conduct] is acceptable, we really don't have a Republic as we've known it any more.

May I respectfully say to my Senate colleagues, Ben Franklin warned us of this day.

I will vote guilty on both Articles of Impeachment against President Donald John Trump, on article I abuse of power and article II obstruction of Congress. But at this moment of high constitutional drama, I hope my last words can be a personal appeal to my Senate colleagues.

Last night, many of us attended a State of the Union Address which was as emotionally charged as any I have ever attended. As divided as our Nation may be and as divided as the Senate may be, we should remember America has weathered greater storms than this impeachment and our current political standoff.

It was Abraham Lincoln, in the darkness of our worst storm, who called on us ``to strive on to finish the work we are in, to work to bind the nation's wounds.''

After this vote and after this day, those of us who are entrusted with this high office must each do our part to work to bind the wounds of our divided nation. I hope we can leave this Chamber with that common resolve.

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