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What if it were President Barack Obama who was the subject of the Senate impeachment trial? How would we feel then?

Cass Sunstein, a professor at Harvard Law School, suggests a question along those lines in his book Impeachment: A Citizens Guide. Its one of several thought experiments that I suggest in order to step back from the hurly-burly in the Senate and interrogate our own principles and motivations.

The first approach, as Sunstein puts it, is this:

Suppose that a president engages in certain actions that seem to you very, very bad. Suppose that you are tempted to think that he should be impeached. You should immediately ask yourself: Would I think the same thing if I loved the presidents policies, and thought that he was otherwise doing a splendid job?

Alternatively, if you oppose impeachment and removal, Sunstein suggests you ask yourself: Would I think the same thing if I abhorred the presidents policies, and thought that he was otherwise doing a horrific job?

In practical terms, this amounts to: What if it were Obama who had been caught in this Ukraine scandal?

My guess is that if it were Obama, Republicans would be demanding witnesses (as they did in the 1999 trial of Bill Clinton). Given how aggressively Republican members of Congress pursued the Benghazi events multiple investigations, eventually finding no evidence of wrongdoing by either Obama or then-Secretary of State Hillary Clinton Im confident that the G.O.P. would be insisting that Obama be removed, with frequent chants of lock him up.

Yet I suspect that many Democrats would also switch sides, finding it easier to excuse misconduct by someone they admired and seeing it as more important in that situation to preserve executive privilege and leave it to voters to decide the matter in the fall. Thats why we owe it to ourselves, as a matter of intellectual honesty, to think through how we would react if it were the other guy on trial.

(Progressives may be scoffing that this exercise is unrealistic: Obama was meticulous in avoiding scandal and ethical conflicts. He checked with the Justice Department before accepting the Nobel Peace Prize, and for him a scandal was something like wearing a tan suit. The Ukraine mess would have been out of character for Obama, while it is entirely in character for Trump. But Republicans will see this differently.)

The second thought experiment comes from another distinguished lawyer, Neal Katyal, in his new book Impeach: The Case Against Donald Trump.

Imagine if it had worked, Katyal suggests. Imagine if our president had leveraged his role as commander in chief to convince a foreign power to open an investigation into his political opponent. Imagine if the presidents rival lost the primary because news broke that he was under investigation. Imagine if that meant the president faced a weaker candidate in November 2020 and won re-election as a result.

The foreign country could then blackmail our president by threatening to expose the corruption, gaining leverage over our foreign policy. Meanwhile, the president might abuse presidential power in other ways in the belief that impunity was complete. If all this eventually became public, and truth does have a way of trickling out, this would have devastating consequences for the legitimacy of American elections.

This thought experiment perhaps isnt so far-fetched. We know now that Trumps pressure on Ukraine caused alarm in the White House and the intelligence community, with National Security Adviser John Bolton likening it to a drug deal. Yet for all that uproar, it almost didnt become public. It was only because of a whistle-blower that the information began to emerge, and the military aid to Ukraine was released only after the White House became aware of the whistle-blower and was being pressured by Congress.

In short, Trumps plan almost succeeded and in any case, he will get away with it in the sense that he is sure to be acquitted by the Senate. When Republicans suggest that Trump did nothing wrong, what message does that impunity send to Trump and to future presidents?

The third thought experiment is simple: What if Trump werent president, but was like almost any other person in America?

What if he were a high school vice principal who ensured that a police detectives son would be accepted in advanced placement classes and then added, Id like you to do us a favor, though. The favor would be an investigation of the vice principals ex-wife before their upcoming child custody hearing, in hopes of tilting the outcome in his favor.

In that situation, the vice principal would be fired. We all recognize that no school official or other person in a government bureaucracy should use public power for private benefit.

So a last query: Shouldnt we have as high a standard for the president of the United States as for a school vice principal?

Read the original:
What if It Were Obama on Trial? - The New York Times