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One method occasionally used to excuse or explain President Donald Trump’s behavior is an appeal to the president’s lack of formal political experience. After fired FBI chief James Comey testified back in 2017, for example, Paul Ryan, who was at the time the speaker of the House, said Trump is “new at this” and “not steeped in the ongoing protocols.” 

It is no doubt true that Trump’s background and temperament mean that he lacks a detailed understanding of the rules and protocols that govern the office he holds. Many of his actions can be viewed in that light. But in the case of Trump’s July call to Ukrainian President Volodymyr Zelensky, details of which have sparked a formal impeachment inquiry in the House, Trump and his defenders can’t reasonably claim he didn’t know that what he was doing would look bad.   

First, the call, in which the president repeatedly pressed Zelensky to investigate former Vice President Joe Biden and his son Hunter, came after nearly two years of investigation into allegations of Russian collusion during the 2016 campaign. The key question in that investigation was whether Trump worked with a foreign country in order to swing the election. If nothing else, Trump should have learned that attempting to work with a foreign nation in a way that could advance his own political fortunes would be problematic. 

Yet that is exactly what the whistleblower complaint about the Ukraine call says that Trump did. 

The complaint opens by alleging that the still-anonymous author, who worked in the U.S. intelligence community, has received “information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 election.” The report goes on to describe not only how Trump pressured Ukraine to investigate Biden, but how “multiple White House officials with direct knowledge of the call” were concerned that Trump used most of the call to “advance his personal interests.”

The president reportedly requested that Zelensky pursue the Biden investigation with the help of Trump’s personal attorney, Rudy Giuliani. According to the report, the White House officials who heard the call and relayed this information were “deeply disturbed by what transpired” and discussed what to do about the likelihood that “they had witnessed the President abuse his office for personal gain.” 

One might reasonably argue that this is all secondhand and anonymous and that it should be corroborated by those unnamed officials. But it also conforms to much of what we already know from other sources. A reconstruction of the phone call released by the White House this week confirms that Trump pressed the Biden issue during the conversation, following a request by Zelensky for Javelin missiles, implying an understood quid pro quo deal.  

And there should be no doubt that that Giuliani was pursuing a politically motivated investigation in Ukraine, because Giuliani has repeatedly admitted this himself. 

In May, for example, Giuliani denied that his actions were illegal but said this about his Ukraine dealings: “Somebody could say it’s improper. And this isn’t foreign policy—I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client, and may turn out to be helpful to my government.” 

This quote establishes that Giuliani—who, again, is not a government official, and thus not conducting ordinary diplomacy—was pursuing an investigation in Ukraine for the president’s personal benefit (“that information will be very, very helpful to my client”). 

It also offers another reason why Trump can’t claim innocence through inexperience: Even then, Giuliani, who was working closely on the Ukraine matter for Trump, understood that what he was doing could be viewed as improper. If the president’s lawyer and pointman on a project knows it’s shady, the president should too. 

If the whistleblower’s report is accurate, there is good reason to believe that loyalists within the Trump White House also understood that Trump’s behavior on the July call was improper, because they tried to shield it from scrutiny.

According to the report, White House officials were “‘directed’ by White House lawyers to remove the electronic transcript from the computer system in which such transcripts are typically stored” for sharing and other use within the administration. Instead, the records were to be stored in a more secretive and compartmentalized system designed for classified information. One White House official, the report says, described this as an “abuse” of the more secretive system, because the Ukraine call records did not belong there.  

The clear implication is that the call records were understood to be damaging, and thus were hidden from scrutiny. (Trump also personally ordered the delay of nearly $400 million in aid to Ukraine in advance of the call, possibly in violation of the constitutional separation of powers, and refused to provide an explanation.) 

Essentially, the report describes a cover-up. And you don’t cover up records of activity unless you understand that activity was wrong. 

The whistleblower’s account remains anonymous and uncorroborated. We need more firsthand, on-the-record information. But if the document is accurate, it strongly suggests that Trump knew that what he was doing was wrong and didn’t want others to find out. 

Finally, even if ignorance ends up being part of Trump’s explanation, it’s damning in a different way. An ignorance defense at this juncture would amount to an admission that the best case for Trump is that after more than two years as president, he still has no idea what he’s doing. 

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Here is another preview of the 11-hour video library from our new book, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know. This post will focus on cases from the Warren Court.

Brown v. Board of Education (1954)

Bolling v. Sharpe (1954)

Williamson v. Lee Optical (1955)

Cooper v. Aaron (1958)

Sherbert v. Verner (1963)

New York Times v. Sullivan (1964)

Heart of Atlanta Motel v. U.S. (1964)

Katzenbach v. McClung (1964)

Griswold v. Connecticut (1965)

Loving v. Virginia (1967)

U.S. v. O’Brien (1968)

You can also download the E-Book or stream the videos.

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The Berkeley law professor John Yoo warns that impeaching Donald Trump over his alleged solicitation of re-election assistance from Ukrainian President Volodymyr Zelenskiy could undermine presidential powers to conduct foreign policy and protect national security. Given Yoo’s expansive understanding of those powers, that prospect may count as an argument in favor of impeachment.

“The Constitution vests the president with the authority to conduct foreign policy and the responsibility to protect the nation’s security,” Yoo writes in a New York Times op-ed piece. “A president, even one who is possibly engaging in wrongdoing, must have confidence in the confidentiality of his communications or he will be unable to perform his constitutional duties and our international relations will fall victim to government by committee.”

Yoo worries that “if Congress could regulate presidential discussions with foreign leaders, presidents and foreign leaders would speak less candidly or stop making the calls altogether.” If that happened, he says, “United States foreign policy—approved by the American people at each election—would be crippled.”

But is Congress trying to “regulate presidential discussions with foreign leaders,” or is it investigating a possible abuse of presidential power, including an illegal usurpation of the legislative branch’s spending authority? If Trump put a hold on congressionally approved military aid with the intent of pressuring the Ukrainian government to dig up politically useful dirt on former Vice President Joe Biden, George Mason law professor Ilya Somin notes, he violated the separation of powers.

It would not be the first time. Yoo himself has criticized Trump for overstepping his constitutional authority by trying to build a border wall that Congress has refused to fund, by suggesting he might pay for the wall by imposing tariffs on Mexico, and by threatening to unilaterally withdraw from the North American Free Trade Agreement.

“The framers believed that ‘high crimes and misdemeanors’ included a president who used his foreign affairs powers for personal or political gain,” Yoo concedes. To investigate whether Trump has done that, he says, “A special congressional committee could review classified information in secret and bring United States and foreign officials to testify under oath. The House could meet any stonewalling by cutting intelligence, military and diplomatic funding.”

And then what? If Congress confirms that Trump has in fact “used his foreign affairs powers for personal or political gain,” that would be an impeachable offense, according to Yoo. Yet he resists the logical conclusion that an impeachable offense should result in impeachment.

“The founders believed that impeachment should come only as a last resort,” Yoo says. But the quote he uses to back up that claim suggests nothing of the sort: “At the end of four years, the president may be turned out of his office, Gov. Edmund Randolph said in 1788 as Virginia weighed ratifying the Constitution. ‘If he misbehaves he may be impeached, and in this case he will never be re-elected.'” That hardly means Congress has to wait for the next election instead of trying to remove a president who has committed an impeachable offense.

“Democratic presidential candidates are calling for impeachment,” Yoo writes. “But they should realize that they themselves remain the framers’ primary remedy for presidential abuses of power. The Constitution trusts the American people, acting through the ballot box, to render judgment on President Trump. Democrats should trust the framers’ faith in the American people, too.”

While there may be sound political reasons to choose the course that Yoo recommends, there are also sound constitutional reasons not to simply let voters decide Trump’s fate. Even if an impeachment vote does not result in conviction by the Republican-controlled Senate (as seems pretty certain at this point), it would make a statement about limits on presidential power that even Yoo acknowledges. If the discovery of impeachable offenses is not a good reason to impeach a president, what is the point of the impeachment power?

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