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The New York Times asked me to write an op-ed about President Trump’s trial brief. In the limited space provided, I only covered the first Article of Impeachment based on “abuse of power.” I did not have enough room to write about the second Article of Impeachment Based on “obstruction of congress.” Nor did I have space to discuss the GAO decision (which I wrote about here).

Here is the introduction:

The way things look, President Trump will almost certainly not be removed from office. The precedents set by the articles of impeachment, however, will endure far longer. And regrettably, the House of Representatives has transformed presidential impeachment from a constitutional parachute — an emergency measure to save the Republic in free-fall — into a parliamentary vote of “no confidence.”

The House seeks to expel Mr. Trump because he acted “for his personal political benefit rather than for a legitimate policy purpose.” Mr. Trump’s lawyers responded, “elected officials almost always consider the effect that their conduct might have on the next election.” The president’s lawyers are right. And that behavior does not amount to an abuse of power.

Politicians pursue public policy, as they see it, coupled with a concern about their own political future. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable “abuse of power.” The House’s shortsighted standard will fail to knock out Mr. Trump but, if taken seriously, threatens to put virtually every elected official in peril. The voters, and not Congress, should decide whether to reward or punish this self-serving feature of our political order.

And an excerpt from the middle:

Mr. Trump is not the first president to consider his political future while executing the office. In 1864, during the height of the Civil War, President Lincoln encouraged Gen. William Sherman to allow soldiers in the field to return to Indiana to vote. What was Lincoln’s primary motivation? He wanted to make sure that the government of Indiana remained in the hands of Republican loyalists who would continue the war until victory. Lincoln’s request risked undercutting the military effort by depleting the ranks. Moreover, during this time, soldiers from the remaining states faced greater risks than did the returning Hoosiers.

Lincoln had dueling motives. Privately, he sought to secure a victory for his party. But the president, as a party leader and commander in chief, made a decision with life-or-death consequences. Lincoln’s personal interests should not impugn his public motive: win the war and secure the nation.

And the conclusion:

An impeachable offense need not be criminal. But our Constitution does not allow Congress to take a vote of “no confidence” for a president who pursues legal policies that members of the opposition party deem insufficiently publicly spirited. Presidents who take such actions with an eye toward the ballot box should be judged by the voters at the ballot box.

The first article impeachment turns on conceptions of what is, and is not in the national interest.

The Wall Street Journal house editorial was on a similar wavelength. (I wrote mine a few days earlier–the review and fact checking process takes some time):

House Democrats are going much further and declaring that Mr. Trump’s acts are impeachable because he did them for “personal political benefit.” He isn’t accused of corruption per se. His Ukraine interventions are said to be corrupt because he intended them to help him win re-election this year. In other words, his actions were impeachable only because his motives were self-serving.

Mark Tushnet flagged a related point at Balkin:

Here’s the version from the House: “Overwhelming evidence shows that President Trump solicited these two investigations in order to obtain a personal political benefit, not because the investigations served the national interest.” The contrast between “the national interest” and “personal political benefit” is explicit.

And here’s the nagging concern: Suppose Trump believes, as I’m sure he does, that his reelection after a campaign against any rival is in the national interest. Or, to put it in the House’s terms, the national interest coincides with a “personal” — but really “political” — benefit to Trump. So, why is it impeachable to act to ensure a re-election that is in the national interest? ….

Otherwise, maybe the argument supporting the House’s formulation is simply that the equation of personal political benefit with the national interest, which I’m imputing to Trump, is simply wrong. Here the formulation probably should be that it’s fine for Trump to think that his reelection would be better for the nation than the election of any rival, but that the increment of national benefit isn’t great enough to justify irregular and secret actions to defeat rivals. And finally, in my view that may be the best way to understand the use of the phrase “abuse of power.”

I am grateful for co-blogger Ilya Somin’s recent post. He cogently crystalized our disagreement:

Unlike unjust deprivation of life, liberty, or property, removal from power doesn’t violate anyone’s human rights. When real human rights are at stake, it may make sense to allow ten guilty people to go free, in order to save even one innocent from conviction. When it comes to positions of power, almost the opposite is true: Removing ten “normal” politicians is more than justified if that is the only way to get rid of one who engages in grave abuses of power. It’s not as if we suffer from a shortage of ambitious politicians who would be happy to take the places of those who get removed.

Ilya thinks it is justified to remove “ten ‘normal'” Presidents to “get rid of one who engages in grave abuses of power.” In more than two centuries, we have had only 44 Presidents (45 if you count Cleveland twice). If Ilya’s standard is correct, then it would have been appropriate to remove nearly a quarter of American Presidents. Every generation would have at least one convicted President. To get Trump, would it be worth it to remove the prior nine presidents:  Johnson, Nixon, Ford, Carter, Reagan, Bush, Clinton, Bush, and Obama (well, exclude Nixon, and perhaps Clinton)? Ilya’s “n guilty men” standard may make more sense for lower-ranking officials. Their removals do not alter the arc of history. But the President cannot be considered a “‘normal’ politician.” Indeed, removing any one of these Presidents would have altered the Republic in ways I cannot fully articulate. I do not agree with Ilya that such an over-inclusive approach would be justified. Such avulsive changes would tear at the fabric of our country on a quadrennial basis.

I acknowledge one perverse consequence of my theory–it would be easier to remove lower-level officers, whose powers may be relatively insignificant, but harder to remove the President, who personally wields “the executive power.” I think that asymmetry must flow from how the President, and the Vice President, are selected: by a nationwide vote. “Officers of the United States” must be appointed pursuant to the Appointments Clause. The people had, at most, an indirect say in their selection. (I do not think members of Congress can be impeached.) I reject the argument that impeachments have the effect of “undoing” an election. But such frequent changes to our polity after elections would shake the faith the people place in the ballot box.

Moreover, frequent impeachments based on mere “abuses of power” would transform the impeachment process into the equivalent of a no-confidence vote. Many parliamentary countries around the world permit these types of proceedings. I offer no opinion on their strengths and weakness, but do not think they are consistent with our constitutional structure.

What then to do about a President who “engages in grave abuses of power” that do not rise to the level of impeachment? I find some solace for my position in the fact that members of Congress stand for election every two years. Midterm elections can allow new members to check the President’s authority, both through legislation and oversight. The 2010 and 2018 midterm elections serve as important examples of the opposition party regaining control of Congress.

Practically speaking, neither of these options is particularly useful. First, Congress has delegated so much power to the President, and courts are generally deferential to those delegations. Most Presidents can find a statute to do just about anything they want. Consider the travel ban, for example. (In the two years since Trump v. Hawaii, the House has not passed any bill to modify 8 U.S.C. 1182(f)). Second, oversight requests can be ignored, and the courts are very slow to litigate subpoena cases. And even when subpoenas are honored, probative information is seldom revealed. Presidents have aggrandized far too much power. Congress only complains when the President in power uses that power in ways Congress disagrees with.

Ultimately, I find more solace in the short term of the President’s tenure. Every four years, a President must stand for election. (Table for a moment objections to the Electoral College.) If the people decide to grant another term to the President, perhaps Congress is mistaken that he has “engage[d] in grave abuses of power.” One person’s “grave abuses of power” is another person’s policy decisions. I often disagree with President Trump’s actions, but I recognize that other people may reasonably draw different conclusions. I do not begrudge their choices. Such disagreements are part of any political give-and-take.

Four years may seem like an interminably long time. In the moment, absolutely. In hindsight, it moves with the blink of an eye. November 2020 will be here before you know it.

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The U.S. Supreme Court heard oral arguments Wednesday in its biggest school choice case in nearly two decades. Judging by the questions raised by the justices, the school choice side seems to have a good chance of emerging the winner.

At issue in Espinoza v. Montana Department of Revenue is a scholarship program the Montana legislature created in 2015 “to provide parental and student choice in education.” Individuals and businesses received a tax credit for donating to private, nonprofit scholarship organizations, which then used those donations to fund scholarships at private schools, both secular and religious.

The Montana Supreme Court killed the program in 2018, holding that it violated a provision of the state Constitution that bars the use of public funds “for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or denomination.”

The big question before the U.S. Supreme Court this week is whether the state court’s judgment conflicts with the U.S. Constitution and its protections against religious discrimination.

Justice Elena Kagan, who repeatedly signaled her support for the Montana Supreme Court’s decision, saw no conflict at all. “I guess I am having trouble seeing where the harm in this case is at this point,” Kagan said. “Because of the [state] supreme court’s ruling, whether you go to a religious school or you go to a secular private school, you’re in the same boat at this point.” In other words, Kagan declared, “there is no discrimination at this point going on, is there?…The parents of both are affected in the exact same way.”

Justice Brett Kavanaugh offered a very different view of the case. “If you’re running a scholarship fund,” he said, “and there’s a group of people lining up for the scholarships, [and you say to them,] are you secular? OK, you can get it. Are you Catholic? No, you’re out because you’re Catholic.” How, Kavanaugh stressed, is that not a constitutional harm?

Chief Justice John Roberts, who likely holds the deciding fifth vote in the case, seemed to be on the same page as Kavanaugh. Let’s say the state legislature “built parks and pools,” Roberts said, “but if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program.” Wouldn’t such a state action be unconstitutional on its face? And if so, “how is that different than [shutting down a program based on] religion, which is also protected under—under the First Amendment?”

A decision in Espinoza v. Montana Department of Revenue is expected by June.

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The second day of the Senate impeachment trial of President Donald Trump concluded yesterday with calls for witnesses—and with tweets, so many tweets, from the commander-in-chief himself.

“More emails are going to come out. More witnesses are going to come forward. They’re going to have more relevant information to share. And the only question is, do you want to hear it now? Do you want to know the full truth?” said Rep. Adam Schiff (D–Calif.), one of the House impeachment managers, in a plea for allowing witnesses to testify in the Senate trial.

The Senate rules for the impeachment trial, approved by a party-line vote Tuesday, put off the question of whether witnesses will be called, or White House documents demanded, until after House impeachment managers have completed their 24 hours of opening statements and Senators have had a chance to ask them questions.

The possibility that we might get to hear what key administration figures—such as former National Security Advisor John Bolton and acting Chief of Staff Mick Mulvaney—knew about Trump’s Ukraine dealings offers one of the few chances that the ongoing Senate trial will produce new information.

Private talks about allowing Democrats’ requests for Bolton or Mulvaney to testify in exchange for allowing Republicans to call Hunter Biden as a witness have reportedly gotten nowhere. Senate Democrats are obviously concerned about giving GOP senators an opportunity to bloody Hunter’s father, former vice president and current Democratic presidential candidate Joe Biden.

Absent additional testimony, the ongoing Senate trial is a re-run of arguments congressional Democrats and Republicans have been making for months.

Democrats spent yesterday reiterating their case that President Donald Trump abused his power by withholding military aid to Ukraine until the country announced an investigation into Hunter Biden’s business dealings there. Republicans have stuck to their guns, pointing out that the aid was eventually released and arguing that Trump has every right to ask for investigations into possible corruption.

“Number one, temporarily delaying military aid is not illegal and it’s not an impeachable offense,” said Sen. Ted Cruz (R–Rexas) on his new daily Verdict podcast, where he gabs about the trial with Michael Knowles. “Number two, asking a foreign country to engage in an investigation is not illegal on its face and it’s not an impeachable offense.”

A party-line vote acquitting the president appears more likely by the day.

The president meanwhile spent yesterday setting social media records by tweeting a total of 131 times. Most of this consisted of retweeting Republican members of Congress either arguing against impeachment or praising Trump’s success on the economy.

So again, more of the same.

FREE MARKETS

Speaking of long-running political dramas that are drawing to a close, the British Parliament approved a Brexit deal Wednesday evening. The country will finally leave the E.U. by the end of the month.

“At times it felt like we would never cross the Brexit finish line, but we’ve done it. Now we can put the rancor and division of the past three years behind us and focus on delivering a bright, exciting future,” said British Prime Minister Boris Johnson.

The vote came after the House of Commons rejected a number of amendments to the Brexit deal offered by the House of Lords. The Wall Street Journal reports that European leaders are set to sign off on the deal by Friday.

The vote comes nearly four years after the contentious referendum in which Britain voted to leave the E.U.

ELECTION 2020

The Democratic presidential primary is starting to look like a two-man race between Joe Biden and Sen. Bernie Sanders (I–Vt.). A new survey of likely New Hampshire primary voters conducted by WBUR, Boston’s National Public Radio affiliate, put Sanders’ support at 29 percent in the state.

South Bend Mayor Pete Buttigieg fell to second place with 17 percent. Biden dropped all the way down to third place in the WBUR poll, earning support from just 14 percent of respondents.

The RealClearPolitics poll averages still have Biden in first place nationally. He’s also top of the pack in the early voting states of Iowa, Nevada, and South Carolina. In each of those states except South Carolina, Sanders is coming in a close second place, making the idea of the Vermont socialist actually winning the nomination more plausible.

QUICK HITS

• A GQ writer declares that Monday’s Virginia gun right rally was really violent after all, even though the demonstrators were entirely peaceful.
• Rep. Tulsi Gabbard (D–Hawaii) offers some more thoughts on her defamation lawsuit against Hillary Clinton.

My statement on defamation lawsuit against Hillary Clinton. https://t.co/HJ4x6OqXCN #StandWithTulsi pic.twitter.com/WQChk5gLgy

— Tulsi Gabbard ???? (@TulsiGabbard) January 23, 2020

• The dating app Tinder plans to spice things up by adding a panic button that will let people call the cops on their date.
• Chinese authorities have locked down three more cities in an effort to contain the spread of a deadly coronavirus.
• A California bill that would legalize more housing development near transit stops and job centers suffered a setback yesterday when a number of “equity groups” announced their opposition to the bill.

As the deadline to advance #SB50 nears, there’s new opposition:
1. Sen. @HollyJMitchell told constituents over the weekend she was opposed.
2. A coalition of equity groups — @Western_Center, @All4Transit — that has been negotiating for more than year announced opposition today.

— Liam Dillon (@dillonliam) January 23, 2020

• One person is dead and seven others were injured following a shooting in downtown Seattle.

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It was May 30, 2013—the day of his graduation from Harvard University—and Damilare Sonoiki’s life was about to change forever. But not the way he expected.

Over the next six years, his career in finance hit a dead end, he pleaded guilty to insider training, and he was accused of sexual misconduct in the pages of The Wall Street Journal. He never received his Harvard degree, either.

Years earlier, the future looked much brighter. A native of Nigeria who had immigrated to the U.S. when he was 6 years old, Sonoiki was an American success story. He won numerous accolades at Harvard: He served as president of the university’s Black Men’s Forum, and was a recipient of the Association of Black Harvard Women’s Annual Senior Award. He was chosen as male orator for his graduating class, and gave a speech to his fellow students that is still available on Harvard’s YouTube channel. The next day, at his commencement, he walked across the stage just like everyone else.

But Sonoiki would never officially receive his Harvard degree. Unbeknownst to him, two female students had filed sexual misconduct complaints against him just hours before his graduation. According to a lawsuit Sonoiki has now filed against Harvard, these complaints were filed at the urging of administrator Sarah Rankin, who directed Harvard’s Office of Sexual Assault Prevention and Response. Months afterward—following an adjudicatory procedure that Sonoiki says violated basic principles of fairness—the school’s Administrative Board formally expelled him.

“I had these false notions in my head of some kind of fairness,” Sonoiki tells Reason. “It was Kafka-esque. It was just crazy.”

Six years later, Sonoiki is suing Harvard for breach of contract. His lawsuit, filed in October 2019, argues that the university’s sexual misconduct policy was “vague, over broad, and inherently unfair, and lacked basic definitions necessary for students to understand the elements of a policy violation.” Indeed, Sonoiki was barely allowed to participate in the process: He was not able to appear at the hearing or confront witnesses against him, according to his attorney, Susan Stone. And the matter was adjudicated under Harvard’s then-standard of evidence: “sufficiently persuaded,” a vague standard that is not clearly defined in the Harvard handbook.

Prior to graduation, Sonoiki had landed a job at Goldman Sachs, and went to work there afterward. As the investigation into his alleged sexual misconduct continued, he feared his employer would eventually discover that he had never actually received his diploma. His lack of a diploma caused him to lose out on a major financial opportunity: He was eventually offered a job at a different investment firm that came with a significant signing bonus, but the firm rescinded the offer after running a background check on Sonoiki.

Deeply frustrated—and in need of cash so that he could pursue a lawsuit against Harvard—Sonoiki made a very bad decision: He engaged in insider trading.

“I was reading about all these stories about students who had sued their school, and so I thought, okay, that’s what I’m going to do,” says Sonoiki. “But obviously those things cost $50,000, or $100,000, which I just didn’t have.”

In 2018, he pleaded guilty to tipping off the NFL player Mychal Kendricks about four corporate acquisitions, which earned the Cleveland Browns linebacker $1.2 million in profits. Kendricks, in turn, paid Sonoiki $10,000 in cash and other perks—Eagles tickets and an invitation to a music video set—according to The Wall Street Journal.

“It’s hard to explain the amount of anxiety and pressure that this stuff can put you under,” says Sonoiki. “But it was a really stupid idea, just very dumb to [engage in insider training]. I wish I hadn’t.”

Coverage of the insider training scandal brought Sonoiki additional troubles: a second Journal article mentioned the sexual misconduct allegations against him, thus making them public for the first time. “Until a few weeks ago, Mr. Sonoiki’s tale was that of an inspiring immigrant,” the publication noted.

—

There were three sexual misconduct accusations against Sonoiki stemming from his time at Harvard. The first was made by a woman identified as “Ann” in his lawsuit. They saw each other at a party in spring 2011, and had a sexual encounter afterward. Nine months later, Ann went to Harvard’s Office of Sexual Prevention and Response and told Rankin that she had blacked out that night and woke up having sex with Sonoiki. He disputes that she was blacked out during the encounter.

Importantly, Ann told Rankin she did not want to file a Title IX complaint, according to Sonoiki’s lawsuit.

The second woman, “Betty,” rented a New York City apartment with Sonoiki during summer 2012. The apartment had only one bed, which they shared. Their relationship became sexual, and they remained friends after the summer ended, according to Sonoiki.

The third woman, “Cindy,” was an acquaintance of Betty’s, and had intended to live with them in the apartment until her summer plans changed. Months later, in spring 2013, she encountered Sonoiki at a Harvard formal event. They had a sexual encounter that night, and the next morning, Cindy went to campus health services for emergency contraception. One of her doctors informed Rankin, who scheduled a meeting with Cindy.

Cindy declined a sexual assault examination, and told Rankin that she did not wish to file a Title IX complaint, according to Sonoiki.

But Rankin told Cindy that she “should file a Title IX complaint because [Sonoiki] had allegedly sexually assaulted another woman,” according to Sonoiki’s lawsuit. Jay Ellison, an associate dean and secretary of the Ad Board, which adjudicates students misconduct, also urged Cindy to file a complaint, the lawsuit claims.

Rankin, who is now a Title IX coordinator at Massachusetts Institute of Technology, did not respond to a request for comment.

On May 17—two weeks before Sonoiki’s graduation—Rankin called Ann and asked her to file a complaint as well, according to the lawsuit. Meanwhile, Ellison informed Sonoiki that there were informal sexual misconduct allegations against him, and if they were to become formal before commencement, it would impact his graduation prospects, Sonoiki told Reason.

At the time, Sonoiki expected that, at worst, it would simply take him longer to receive his degree.

“Stupidly, my biggest fear was like, my parents are coming in a week, do I have to tell them to cancel?” says Sonoiki. “They’re excited. They’re coming to see me graduate.”

According to the lawsuit, the administration’s efforts to persuade the women succeeded, and they filed complaints just in time to impact Sonoiki’s future. A few days later, Betty also filed a complaint, alleging that “anywhere between three to five of her sexual encounters with [Sonoiki] in June 2012 were non-consensual,” according to his lawsuit. For her part, Cindy “didn’t think much about” her experience with Sonoiki, but after Rankin informed her of the other two incidents, Cindy changed her mind and decided to report, according to the lawsuit.

The effect was that the three women—each of whom had not initially considered their experience with Sonoiki to constitute sexual assault, according to him—were corralled into making life-derailing accusations against Sonoiki by Harvard’s administration.

Harvard did not respond to a request for comment.

For the next several months, Sonoiki—who had moved to New York City—spoke with the Ad Board via Skype in an attempt to resolve the matter. He believed he was completely innocent of the charges, and looked forward to clearing his name. It soon became obvious to him that this would be impossible.

“I was trying to give my best recollection of events that were a year or two years ago,” said Sonoiki, referencing his conversations with Harvard’s investigators, “but I could also tell from their body language that if I said I didn’t remember, or if I changed what I had said slightly, they thought I was lying.”

Harvard’s process specifically prohibited lawyers from being involved in these meetings, according to the lawsuit. Sonoiki was permitted to consult a faculty adviser, but this adviser couldn’t be a lawyer, according to the university’s policy at the time.

Sonoiki’s lawsuit suggests that Harvard’s treatment of him might have been motivated by racial discrimination—a violation of the handbook’s guarantee that disciplinary procedures will be free of racial bias. He notes that not a single member of Harvard’s 30-person Ad Board was a black man.

None of the three women who accused Sonoiki were black, and two of them were white. As I’ve written previously in my coverage of various Title IX disputes, some evidence suggests that black and immigrant male students may be disproportionately likely to face sexual misconduct adjudication, often because of accusations made by white women. The Atlantic‘s Emily Yoffe has made note of this phenomenon as well—albeit cautiously, given the dearth of solid data—in a must-read piece:

Melissa Kagle is one of three people who brought the race-discrimination complaint about Colgate to OCR. Kagle is a former assistant professor of educational studies at the school who, over the course of her last three years at the university, became a prominent critic of Colgate’s handling of sexual misconduct. (She left after being denied tenure in 2016 and now works at an education nonprofit.) Her co-complainants were minority students who’d been accused of assault or harassment, and to whom Kagle had become an informal adviser. …

Kagle believes that men of color—and especially foreign men of color, students from Africa and Asia—were uniquely defenseless when charged with sexual assault, typically lacking financial resources, a network of support, and an understanding of their rights. She told me that university administrators, in their zeal to address an issue that was a top priority of federal regulators, had gone after rumors and third-party reports of assaults, pressuring some female students to pursue complaints. I spoke with two women who made harassment complaints against a Rwandan student who was later expelled. One said she hadn’t wanted to make a complaint, but was told that it would help another woman feel safer; neither believed expulsion was the right outcome.

These concerns are shared by some members of Harvard’s own law faculty.

“Case after Harvard case that has come to my attention, including several in which I have played some advocacy or adjudication role, has involved black male respondents, but the institution cannot ‘know’ this because it has not been thought important enough to monitor for racial bias,” wrote Janet Halley, a law professor at Harvard, in a 2015 article for The Harvard Law Review Forum. “The general social disadvantage that black men continue to carry in our culture can make it easier for everyone in the adjudicative process to put the blame on them.”

Sonoiki’s lawsuit also argues that even if the Ad Board was unbiased, it had no jurisdiction to investigate him because he had already graduated—and since the Ad Board had not yet issued a formal charge, withholding his degree was improper.

“The issuance of charges against a student required an affirmative action by the Ad Board,” Sonoiki’s attorneys argue in his lawsuit. “Mere complaints of wrongdoing did not constitute a charge.”

The lawsuit alleges four counts breach of contract and denial of fairness. Sonoiki is seeking $75,000 from Harvard on each count, an expungement of his disciplinary record, and his degree.

Harvard has filed a motion to dismiss the suit. Oral arguments will begin next month, on February 25.

—

Some people who read Sonoiki’s story will undoubtedly lose sympathy for him when they learn about his insider training conviction: Here was someone who had made it in the world and threw all that away. It occurs to Sonoiki that readers may come away with that impression. He understands. But he stressed that he felt trapped in his situation, knowing that it was only a matter of time before Harvard’s denial of his degree would become public and cost him everything.

“I didn’t have some rich uncle I could call to bail me out,” he tells Reason. “I was just in a really, really nervous, anxious, dark place.”

Just before the insider trading and sexual misconduct allegations became public, Sonoiki had left Goldman Sachs to become a TV writer, thanks to connections from his days at The Harvard Lampoon, a student-run humor publication. He had already earned writing credits on The Simpsons and Black-ish. These opportunities evaporated once his past came to light, though he hopes he can get a second chance if the lawsuit is settled in his favor.

“Obviously, we’ll see,” he says. “It’s an uphill thing.”

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