Senator Portman, What Would It Take to Remove the President from Office?
How different, in principle, would it be if the President had asked a foreign government to cyberattack the 2020 campaign?
Edward B. Foley
I write this analysis for my home-state Senator as one who had the privilege of serving Ohio as its State Solicitor in the office of Attorney General Betty Montgomery and who has continued to serve Ohio as a professor of constitutional law, as well as the director of the election law program, at the Ohio State University (though the views expressed here are solely my own and are not intended to represent the official position of the university or any of its departments or programs).
Senator Rob Portman articulates the correct standard when, discussing impeachment and potential removal of a president from office, he observes: “You’re talking about changing the results of an election of the United States. Pretty serious.”
He made this observation during the brief interval between the release of the quasi-transcript of President Trump’s phone call with his Ukrainian counterpart and the subsequent release of the whistle-blower’s letter, which detailed a pattern of presidential misconduct that went beyond the bare words of the quasi-transcript. As of that moment in this fast-evolving constitutional drama, Senator Portman apparently had not seen enough that in his judgment justified nullifying the result of the 2016 presidential election by prematurely terminating Trump’s tenure in office before the expiration of his four-year term.
In light of the significantly more serious allegations contained in the whistle-blower’s complaint, one is tempted to ask whether, if true, these would suffice in Senator Portman’s mind to warrant Trump’s impeachment and removal from office (although not necessarily Trump’s disqualification from running again, for reasons I have previously addressed). But given the obvious rejoinder that what the whistle-blower writes remains merely allegations unless and until proven by separate testimony or documentation, it is more profitable to consider the proper application of Senator Portman’s standard in the abstract, with respect to hypothetical circumstances, as law professors are wont to devise in order to test where it makes sense to draw the line between sanctionable and unsanctionable conduct.
It seems clear from the way Senator Portman appropriately articulates his standard that he necessarily acknowledges that there are some forms of presidential misconduct that would require overturning “the results of an election of the United States” even while recognizing how “serious” it would be to do so. One can imagine hypothetically, for example, a president asking as a “favor” that the leader of another country order its security services to undertake a cyberwarfare operation designed to disrupt America’s 2020 election. That cyberattack might take a variety of forms: perhaps an attempt to hack our nation’s voting technology, either to alter the counting of votes so that the reported result is incorrect, or infiltration of voter registration databases so that chaos at the polls prevents properly registered voters from casting valid ballots. Or, perhaps instead, the presidentially requested cyberattack might take the form of an orchestrated disinformation campaign on social media, similar to what Russia perpetrated in 2016. If an incumbent president of the United States asked a foreign leader to undertake a cyberattack against America’s 2020 election in any of these forms, there is no doubt whatsoever that Senator Portman would consider this gross abuse of presidential power to warrant undoing the results of the 2016 election by removing the perpetrator of this heinous crime from the Oval Office.
But how exactly do the facts as alleged in the whistle-blower complaint differ from a presidential request that a foreign government engage in an orchestrated disinformation campaign designed to disrupt the 2020 election for the incumbent president’s benefit?
Consider, in this regard, another hypothetical: suppose an incumbent president in a telephone conversation with a foreign counterpart asks as a “favor” that foreign leader to use his country’s cyberwarfare assets to produce even just a single “deepfake” of his leading potential opponent in his upcoming reelection campaign. The president tells his foreign counterpart that he’d really like the “deepfake” to show his opponent appearing to betray America’s national interests. And the president makes this request knowing that the “deepfake” would be a complete fabrication, a falsehood produced solely for the purpose of wrongfully destroying the opponent’s reputation so as to cripple this challenger’s capacity to threaten the incumbent’s reelection. If we want to make this hypothetical even more vivid for purposes of illustrating the point, imagine President Trump in a phone call to Mohammad bin Salman of Saudi Arabia asking that the Saudi government produce a “deepfake” purporting to show Joe Biden, when Vice President, assuring the Foreign Minister of Iran that the United States had no objection to Iran developing a nuclear weapon as long as this acquiescence remained secret and subject to plausible deniability. The “deepfake” would be a total fabrication, with no basis in reality, but it would be designed to effectively undermine Biden’s potential as an opposing candidate.
I have no doubt that Senator Portman would consider the president’s (again, hypothetical) solicitation of this “deepfake” from a foreign country to be an impeachable offense, justifying the president’s removal from office even though that removal would undo the results of the previous U.S. election. I have no doubt, moreover, that partisan affiliation would not cloud Senator Portman’s judgment on this point. It does not make a constitutional difference whether the solicitation of this kind of “deepfake” is done by President Trump or, instead, a Democratic president. Given the mendacity of Democrats who have held the Oval Office in the past (Lyndon Johnson blatantly lying to the American people about Vietnam, Bill Clinton blatantly lying to the American people about Monica Lewinsky), it is not inconceivable that a Democrat in the White House would be the one to try to get a foreign counterpart to produce a “deepfake” to destroy a potential Republican opponent. Either way, whether perpetrated by a Democrat or Republican, this kind of a presidential solicitation of a “deepfake” about a potential reelection challenger would be obvious grounds for impeachment and removal.
Now, to be sure, the quasi-transcript of Trump’s phone call with President Zelinsky of Ukraine does not indicate a solicitation having quite the character of asking for the production of a “deepfake” about Joe Biden. Instead, Trump asks for what Zelinsky terms the renewed “investigation” of Biden (and Biden’s son).
But if the whistle-blower’s complaint and media reports are to be believed, a renewed investigation of Joe Biden by Ukraine would uncover nothing, because as Vice-President Biden did nothing wrong in his official dealings with Ukraine (acting on behalf of the Obama administration and in concert with other Western allies). If that is true, then asking Ukraine to investigate Biden starts to look uncomfortably close to asking Ukraine to produce a fabricated lie about Biden, analogous to a “deepfake,” especially on the assumption that President Trump would be willing to peddle in falsehoods about Biden without any basis whatsoever for believing those falsehoods to have any relationship to reality. And, unfortunately, we know from Trump’s trafficking in the flagrantly fallacious “birther” calumnies about President Obama’s birth certificate (among other blatantly dishonest fabrications by Trump), that it is easily plausible that Trump would ask Ukraine to accuse Biden of wrongdoing even though there would be no basis in fact for doing so.
But there is no need to jump to conclusions prematurely. Presumably, now that the whistle-blower’s allegations are public, Congress will pursue them vigorously and thoroughly. And if it turns out that President Trump essentially asked Ukraine to fabricate falsehoods about Biden, much like asking Ukraine to produce a “deepfake” about him, then we would expect Senator Portman to treat President Trump’s misconduct as an equivalent abuse of office, similarly warranting impeachment and removal.
Moreover, there would be no need to prove a quid pro quo (as Senator Portman may mistakenly believe to be required). When the request by a U.S. president for a “favor” from a foreign power is to assassinate the character of a potential reelection opponent, by production of a “deepfake” or comparable intentional fabrication, it does not matter whether the request for the “favor” is made in exchange for some benefit that flowed the other way. The impeachable offense lies in the U.S. president’s effort to enlist the foreign government in the smearing of his potential reelection challenger. The existence, or not, of an extortionate threat tied to this “request” is superfluous, or irrelevant.
On this point as well, the partisan affiliation of the president makes no difference. If a Democrat in the White House, while not going quite so far as asking a foreign leader for the production of a “deepfake” about a political opponent, made a request that (once all the relevant evidence was examined) amounted to being close enough as essentially equivalent — and thus to warrant impeachment and removal — then one necessarily would expect Senator Portman to apply the same standard to a Republican in the White House who engaged in the same degree of misconduct.
I fully believe that Senator Portman wishes to hold himself to this impartial standard. He views himself as a man of principle and conscience. If the House of Representatives does impeach President Trump for conduct relating to a request of a “favor” from Ukraine regarding an “investigation” of Joe Biden without any basis, and only for the purpose of falsely injuring Biden’s reputation in order to damage him as a potential 2020 challenger, then Senator Portman will be required to consider whether the evidence supports the charge. And if he is indeed a man of principle and conscience, he will answer that question without regard to whether the president so charged happens to be a Republican or Democrat.
