SADOW: Kennedy Impeachment Intent Doctrine Fails

News show favorite Louisiana’s usually perspicacious Republican Sen. John Kennedy as always remained glib but missed the mark when he commented about the partisan impeachment circus currently in Washington, DC.

Appearing on a Sunday morning show, Kennedy argued that Republican Pres. Donald Trump’s conversation with Ukrainian Pres. Volodymyr Zelensky where Trump discussed that the Ukraine uphold treaty obligations in assisting on a corruption probe that included the son of Democrat former Vice Pres. Joe Biden – a potential challenger in 2020 – possibly could be an impeachable offense. During the call, Trump never mentioned military aid, which had been negotiated but not yet delivered. Zelensky didn’t even know the aid, which showed up three months later, as of the call had not arrived, nor did he feel like Trump was bargaining with him. In fact, the Ukraine has yet to pursue Trump’s request to provide any investigatory assistance.

Nonetheless, Democrats have declared the episode worthy of impeachment and conviction to remove Trump from office. Kennedy largely disagrees, with one exception:

“Here are the two possible scenarios. Number one, the president asked for an investigation of a political rival. Number two, the president asked for an investigation of possible corruption by someone who happens to be a political rival. The latter would be in the national interest. The former would be in the president’s parochial interests and would be over the line. I think this case is going to come down to the president’s intent — his motive. Did he have a culpable state of mind? For me … there are only two relevant questions that need to be answered. Why did the president ask for an investigation? And number two, and this is inextricably linked to the first question, what did Mr. Hunter Biden do for the money?”

Kennedy correctly noted that no tradeoff existed – unlike in the case of Biden, who suggested to the Ukraine under a previous administration in 2016 to fire the prosecutor looking into Hunter Biden’s affairs at the risk of losing aid, which happened, followed by the delivery of that aid. A Ukrainian prosecutor who took it upon himself to do this himself was fired earlier this month for reasons supposedly unrelated to that effort.

But at the same time, neither does his standard of “intent” pass intellectual muster. As a policy-maker, it doesn’t matter why you do what you do, it’s what you do that matters. Impeachment as a concept inserted into the Constitution by its framers they saw clearly as offenses tangibly committed in office, as actions taken. Thought crimes don’t count.

If that’s what this really is. Possible corrupt acts don’t get a pass when committed by a political rival. It may end up as a happy coincidence for a leader if he can use state resources to investigate a rival, but he is obligated nonetheless as chief executive to pursue that regardless of his relationship with the investigated. The only occasions lending themselves to questioning whether a figure upholds the duties of his office – perhaps then rising to the level of impeachment – is if he fails to carry out these on behalf of someone who is a political ally or goes after political enemies for no good reason.

Perhaps the latter is what Kennedy meant when he mentioned a “culpable mind.” Yet even in the unbelievable event that Trump had no clue that reasonable suspicion of corrupt activities existed, which plainly contradicts the facts, the fact is he carried out the duties of his office by seeking Ukrainian cooperation consistent with those facts. We must judge leaders by whether they uphold the Constitution through performing their duties, not by their motives that led to their ultimate behavior.

Under Kennedy’s broader formulation, Kennedy therefore must support the concept of hate crimes, which carry additional penalties to violent actions based upon the attitudes of the perpetrator concerning characteristics of the victim. His doctrine also works the other way: it could be used to excuse misbehavior by a policy-maker so long as he intended for it to and it did produce policy benefits for the polity.

“Intent” of a policy-maker has no place in a discussion of using impeachment power. Whether to try to remove an official only stands on whether he engaged in acts detrimental to the polity. If one side wishes to define what is “detrimental” in policy terms, as the case appears currently, it needs to make that case transparently without having fig leaves at its disposal. Kennedy’s conceptualization only invites needless obfuscation of this.

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