A Constitutional Guide to Emergency Powers

Federal leadership is crucial, but there are measures only states have the authority to take.

By David B. Rivkin Jr. and Charles Stimson

March 19, 2020, in the Wall Street Journal

The Covid-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel. It’s possible that “social distancing” will last for months rather than weeks.

All this goes against the grain in America, whose people treasure freedom and constitutional rights. But the government has ample constitutional and legal authority to impose such emergency steps.

Some state officials, such as New York Gov. Andrew Cuomo, have urged the White House to take charge. But this isn’t a task for Washington alone. While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.

States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.

“The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.

Federal leadership is crucial. Washington has wider access to data about the virus, its migration and trends. It is prudent for states to follow federal guidance on matters like quarantine and travel restrictions. But because Washington lacks states’ police power, compulsion is not always an option. The Constitution forbids federal officials from coercing the states or commandeering state resources or civilian personnel. While Washington may withhold some federal funds from states that refuse to follow federal law, it may do so only in ways that are tailored to advance the federal interests at stake and don’t amount to a “gun to the head,” as Chief Justice John Roberts put it in the 2012 ObamaCare case.

The federal government has the authority to order regional or nationwide containment and quarantine measures. The Public Health Service Act enables the surgeon general, with the approval of the secretary of health and human services, “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” President Trump listed the Covid-19 virus for this purpose in January. The act authorizes the federal government to apprehend, detain and conditionally release individuals to prevent the spread of infection, and to detain anyone who enters from a foreign country or who would spread the disease across state borders.

The act can be read to allow for the general quarantine of all people from a particular state or states, including those who are asymptomatic or even have tested negative. But an attempt to do so would certainly result in litigation. Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.

To enforce such measures, the president can deploy civilian and military resources. He could federalize the National Guard over the governor’s objection. The Constitution allows Congress to authorize the use of the militia as well as regular armed forces for a variety of purposes, including suppression of insurrections, defense against invasions, and execution of laws.

Congress has placed significant constraints on the domestic use of the U.S. military. The Posse Comitatus Act of 1878 generally prohibits the use of U.S. armed forces for “performing domesti law enforcement activities” and features criminal penalties for noncompliance. But lawmakers have enacted important exceptions that allow the use, in certain specified circumstances, of the military to enforce federal laws. One is the Insurrection Act, originally dating to 1807, which allows the president to use the military when dealing with domestic rebellions. Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.

Containing the Covid-19 epidemic will require citizens, states, private companies and the federal government to work together. One may hope the steps that have been taken so far will suffice. But emphasizing the sound constitutional and legal basis of these measures is important in reassuring the public that government can do what is necessary to secure the general welfare.

Mr. Rivkin is a constitutional lawyer who has served in the Justice and Energy Departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Stimson is a senior legal fellow at the Heritage Foundation.

Source: https://www.wsj.com/articles/a-constitutional-guide-to-emergency-powers-11584659429

Election Mirage: Why Claims of Russian Meddling Should Be Questioned

The winner in this deepening struggle between the White House and the intelligence world is not yet clear. But the loser is already evident: American national security.

By David B. Rivkin, Jr., and George Beebe

28 February 2020 in The National Interest

What does one do when the country’s intelligence leadership is acting, well, not very intelligently? That is the inescapable question prompted by last week’s reports that a senior representative of the Office of the Director of National Intelligence (ODNI) told members of the House Permanent Select Committee on Intelligence (HPSCI) in an official briefing that Russia is interfering in the 2020 U.S. presidential election and hopes to see President Donald Trump re-elected.

According to the New York Times account, Trump learned of this briefing only after the fact. And if press reports are accurate, the briefer cited no direct evidence of meddling on Trump’s behalf or of Russia’s broader intentions regarding U.S. presidential elections. Rather, the case was apparently based on inferences from such inherently ambiguous evidence as Russian hacking of the Ukrainian energy firm Burisma, supposedly done to help Trump dig up dirt on Hunter Biden. Such inferences were evidently reinforced by an assessment, lacking in analytical merit but redolent with politics, that the Kremlin would somehow naturally favor Trump over other 2020 presidential candidates.

Republican HPSCI members reportedly erupted in response. They disputed the plausibility of an assessment that Russia would prefer a president who has built up the U.S. military, proved willing to use force in the Middle East, greatly stiffened sanctions on Moscow, fought Russia’s Nord Stream 2 gas pipeline project, and toughened other policies affecting Russia. Why would Russians not favor Democrats who would cut the U.S. defense budget, balk at using military force, and impose a ban on fracking that would drive up global oil and gas prices and benefit Russia’s energy export earnings? Trump, in turn, called the allegation of Russian support a “hoax.”

Should Intelligence Assessments Be Taken with a Grain of Salt?

Should intelligence overseers in Congress, the White House, and media subject the judgments of professional analysts to tough scrutiny? History says yes. Formulating intelligence assessments is an inherently uncertain and difficult business. Even establishing basic facts is a challenge when dealing with adversaries, who attempt to shroud their capabilities in secrecy. Intelligence assessments of the Soviet nuclear forces buildup, for example, were plagued by both over- and under-estimations, leading first to erroneous American concerns about a “missile gap” under Khrushchev, and later to surprise when the Soviets tried to put missiles in Cuba and then pushed well past nuclear parity in the 1970s.

In fact, one of the key reasons for the consistent underestimations of the Soviet nuclear force posture circa 1970s–1980s, was not a failure of the U.S. technical collection capabilities, but the CIA’s failure to accept that Moscow’s key strategic goal was to be able to fight and win a nuclear war. Ironically, Moscow was not trying to hide its thinking on this issue, as numerous Soviet military officials laid out their nuclear war-fighting ethos in published books and articles. However, U.S. intelligence analysts discounted this evidence, believing that Moscow, whatever it might have been publicly saying and doing, somehow subscribed to a mutually assured destruction theory as the best way to both maximize deterrence and minimize the risks of nuclear war.

By contrast, in earlier years, the CIA greatly overestimated the then-existing Soviet nuclear capabilities. By the late 1950s, the Soviet Union was locked in a strategic arms competition with the United States, and it was losing badly. America enjoyed a considerable and growing advantage in both long- and intermediate-range nuclear forces. Yet, having embarked on an ambitious foreign policy designed to test American resolve, and possibly drive U.S. forces out of Berlin, Khrushchev was not prepared to curtail his aspirations.

To enhance his military capabilities vis-à-vis the United States, he could have deployed a number of costly, inaccurate and vulnerable first-generation ICBMs. Alternatively, he could have chosen to invest the USSR’s large, but not unlimited, resources in the development of more advanced land-based missiles (with deployment many years in the future) and other, more reliable, strategic delivery systems that might tip the nuclear balance in his favor.

Sensibly enough, he chose the latter course. However, to maintain the highest quality deterrence against the West and, even more to the point, to support the enhanced Soviet prestige necessary for an ambitious foreign policy, Khrushchev also engaged in an elaborate deception designed to make the West believe that Moscow had already fielded strategically meaningful numbers of advanced ICBMs. The Soviet leader’s public statements were supported by a carefully tailored intelligence disinformation campaign that not only tried to hide Moscow’s actual capabilities but also masked Soviet insecurities by suggesting Khrushchev wanted to challenge directly the United States in building up nuclear forces.

From Khrushchev’s perspective, the plan worked like a charm, at least temporarily. The alleged “missile gap” between the United States and the USSR was seized upon by a young Democratic Senator from Massachusetts, John F. Kennedy, to discredit the Eisenhower Administration and to defeat then-Vice President Richard M. Nixon in the 1960 presidential election. Not only did the Soviet Union avoid wasting billions of rubles, but Khrushchev concluded that he could outmaneuver the inexperienced Kennedy.

To be sure, Moscow’s gambit ultimately failed, as the U.S. eventually discovered that Moscow was not “cranking out missiles like sausages,” in Khrushchev’s oft-used expression, and blocked the Soviets from installing medium and intermediate-range missiles in Cuba. This did not, however, negate the fact that for a considerable period of time U.S. intelligence estimates about Soviet capabilities were profoundly wrong.

Divining Intentions Is Extra Hard

Discerning adversary capabilities is difficult enough, particularly when dealing with closed societies with strict government controls on information. But divining an adversary’s intentions is an even more challenging task. In part, this is because capabilities, even when ascertained with the utmost precision, often lend themselves to multiple explanations of intent. Americans accurately recognized that Japan would have enormous disadvantages in an extended war with the United States, but they did not imagine that Tokyo might nonetheless attempt a knock-out blow of the Pacific Fleet at Pearl Harbor. Israelis correctly understood that Egypt could not hope to defeat their forces on the battlefield, but they failed to consider that Sadat might still see some advantage in launching a surprise offensive in the 1973 Yom Kippur War.

Moreover, decisions made by heads of state can often surprise even their closest aides. Intelligence reporting can accurately convey information from highly-placed foreign officials, yet still miss the mark when it comes to portraying foreign intentions. This problem can arise either because the officials just do not know enough about the intentions of their superiors, or because their superiors changed their minds, or simply because their superiors chose to lie to them. Saddam Hussein, for example, deceived his own generals in leading them to believe that, despite the international sanctions imposed in the aftermath of the first Gulf War, Iraq retained operational weapons of mass destruction

The difficulty in grasping intentions is particularly acute when it comes to foreign influence operations. Often, media operations are aimed at little more than reinforcing a state’s diplomatic messaging. The BBC and Voice of America have long broadcast content into countries dominated by state-controlled media, hoping to provide audiences with alternative perspectives on events. But sometimes media campaigns are not intended to persuade, but to deceive and even subvert—to tear the social and political fabric of their target audiences and undermine government authority.

The objectives of such subversion, however, can be agonizingly difficult to ascertain with much confidence. Sometimes the goal of subversion can be to topple a foreign authority—to so damage the operations of a regime so that it can no longer function effectively and crumbles from within. In other instances, the aim is less ambitious and more pragmatic—to force the target leadership to do things it would rather not do, such as refrain from behavior perceived as threatening. And when creating controversial online content also happens to be the most effective way to attract views, generate clicks, and bolster advertising revenues, separating subversive intent from other more mundane motivations in digital media campaigns becomes even more challenging.

More generally, given the past record of intelligence failures—particularly when it came to the analysis of intentions of various hostile powers, and the fact that there are still ongoing debates about such key Cold War episodes as the real Soviet motivations that drove a series of Berlin crises, and the Cuban Missile Crisis—the notion that the judgments of the Intelligence Community about Russian intentions virtually delivered in real-time today should be accepted without skepticism is nothing short of risible.

What Does Moscow Want?

In view of such inherent challenges, what can we say about the renewed controversy over Russian electoral meddling? There is no doubt that Russians are continuing to post digital news and social media content aimed at American audiences. It is also clear that Russian hackers have targeted American electoral databases and vote-counting systems in the past. What is less clear are the motivations that lie behind this activity.

That it is aimed at securing the victory or defeat of any particular candidate or party is an unproven hypothesis at best. The Kremlin cannot fail to realize that any significant pro-Trump meddling would be exposed and would hurt rather than help his electoral prospects. This being the case, one might plausibly argue that the real reason Moscow might unveil some footprint of a pro-Trump campaign is because it would expect this to be discovered and actually harm Trump. In fact, such a scenario illustrates perfectly how difficult it is to ascertain Putin’s intentions, even if one had perfect evidence of what Moscow was actually doing in U.S. elections.

Source: https://nationalinterest.org/feature/election-mirage-why-claims-russian-meddling-should-be-questioned-127992

Shut up, they advised

By David B. Rivkin, Jr., and Andrew M. Grossman

4 February 2019 in the Wall Street Journal

At a time the First Amendment rights of free speech and association are under assault, it’s disheartening to see the judiciary getting in on the act. At issue are the judge-made rules governing judges themselves. A draft advisory opinion circulated last month by the Committee on Codes of Conduct of the U.S. Judicial Conference recommends new restrictions on the First Amendment rights of federal judges as well as their law clerks and staff attorneys. The opinion is unconstitutional, and a sloppy bit of judging to boot.

The committee, made up of 15 jurists, proposes to bar judges and their staffers from membership in the Federalist Society and the liberal American Constitution Society. The opinion reasons that a judge’s impartiality and independence could reasonably be called into question if he belongs to what the committee deems ideological “advocacy groups.” But the committee provides no clear guidance as to which other groups are forbidden. It says only that judges remain free to join the American Bar Association but must avoid the Federalist Society and the ACS.

Federal judges aren’t stripped of their constitutional rights before donning their robes. Yet the opinion takes no account of the First Amendment at all. If it did, its authors would have been obliged to subject their ruling to “heightened scrutiny”—which means, among other things, that the government may impose limits only to achieve a compelling interest. Safeguarding public confidence in the fairness and integrity of the judiciary qualifies—but that’s not the end of the test.

Inconsistent restrictions, as the Supreme Court has put it, invariably raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” And inconsistency abounds in the draft opinion.

The Committee gives a pass to the ABA even though it advocates positions that line up consistently with those of the Democratic Party through its official resolutions, lobbying, grass-roots advocacy and friend-of-the-court briefs.

The basis for that approval appears to be that the ABA has a “judicial division,” whose members, its bylaws assert, “will not be deemed to endorse” the association’s “positions and policies.” Perhaps the Federalist Society or ACS could overcome the ban by creating a similar judicial division—though the committee doesn’t say. But that would be meaningless for the Federalist Society, which doesn’t lobby or take positions on policy or political candidates. Its purpose is to facilitate open debate, allowing voices and perspectives often shut out of legal academia to be heard. For the society to adopt a special disclaimer for judicial members would be tantamount to confessing falsely that it has been misrepresenting its true purpose.

The committee also asserts that the ABA “is concerned with the improvement of the law in general and advocacy for the legal profession as a whole,” while the Federalist Society and ACS are not. Such favoritism should raise a red flag. Decades of case law condemns viewpoint-based discrimination by the government that favors one group over others.

The Supreme Court stated the rule plainly in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

The rule’s application here is clear: The committee may not play favorites, approving organizations because it thinks their views foster “improvement.” To avoid viewpoint discrimination while banning the Federalist Society and ACS, the committee would have to paint with a much broader brush, proscribing not only the ABA but also state bar associations (membership in which is often mandatory for those practicing law), affinity bars like the National Association of Women Lawyers and the Hispanic National Bar Association, and perhaps even churches—all of which take positions on issues that come before federal judges.

That would be foolish as well as unconstitutional. The Judicial Code of Conduct recognizes that “a judge should not become isolated from the society in which the judge lives” and that blocking judges from participation in civil society “is neither possible nor wise,” given their “unique position to contribute to the law, the legal system, and the administration of justice.” A viewpoint-neutral ban would run afoul of First Amendment tailoring requirements, which demand that a restriction’s scope be the minimum required to fulfill the government’s stated interest. Requiring judges to be monks is a step too far.

The Committee’s speech- and association-censoring approach simply cannot be reconciled with the First Amendment. So why not stick with the status quo, which focuses on impartiality? Its virtues include neutrality, familiarity, and appropriate deference to a federal judiciary that has proven its integrity and good sense through its conduct and the esteem in which it is held.

Federalist Society members have served as federal judges and law clerks for nearly 40 years without a serious suggestion of ethical impropriety. During that period nothing has changed about the organization’s activities or its purpose. What has changed is that it now faces regular attacks from political actors seeking to achieve their own ends by spreading falsehoods about a public-spirited organization. It is dismaying enough to see a committee of federal judges accept those falsehoods. Their willingness to disregard basic constitutional principles in the process is a dereliction.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. They are members of the Federalist Society, and Mr. Grossman serves on its Free Speech and Election Law Executive Committee.

Source: https://www.wsj.com/articles/shut-up-they-advised-11580773557

Is the Democrats’ accusation of “obstruction of Congress” sensible?

In this clip from the Wall Street Journal’s “Journal Editorial Reports”, David Rivkin addresses the Constitutional question of whether a sitting president can credibly be accused of “obstructing Congress”. He concludes that there are severe legal deficiencies associated with this idea, and with the way the House Democrats have tried to advance their agenda.

Congress Declares War, but Only the President Can Make It

By David B. Rivkin, Jr., and Lee A. Casey

15 January 2020 in the Wall Street Journal

House Democrats, joined by a few Republicans, responded to the killing of Iran’s Maj. Gen. Qasem Soleimani by questioning the president’s authority to order that strike. But the resolution they passed last week makes a mockery of Congress’s own powers. It purportedly “directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military” unless Congress authorizes the use of force or an Iranian attack on the U.S. is “imminent.” But it’s styled as a nonbinding resolution. That means it doesn’t need Senate approval, but it also makes no pretense of having the force of law.

Which is just as well. Congress cannot limit the president’s constitutional authority to wage war in the way it pretends to here.

The resolution purports to restrict the president’s power to an even greater extent than the 1973 War Powers Resolution. The latter was enacted over President Richard Nixon’s veto, and every president since has regarded it as unconstitutional. It demands that the White House notify Congress anytime U.S. forces are introduced into hostilities abroad, then either obtain congressional authorization or withdraw troops within 90 days. The new resolution applies to all forms of military power, including drones and missiles, and claims to prohibit them effective immediately.

It’s true that the Constitution assigns Congress the power “to declare war.” Yet even in the 18th century, a declaration of war wasn’t required to create a state of armed conflict, governed by the laws of war. Today, such a declaration has to do with how citizens and property from belligerent and neutral states are treated, rather than the actual use of force. The last time Congress formally declared war was in 1942. Since World War II, lawmakers have approved U.S. military actions by other means, from the 1964 Gulf of Tonkin Resolution, which allowed President Lyndon B. Johnson to expand U.S. involvement in Vietnam, to the Authorization for Use of Military Force Against Iraq Resolution of 2002.

The power to declare war is different from the power to make war, which belongs to the president in his role as “commander in chief of the Army and Navy of the United States.” There are few constraints on that power when the president is defending Americans, civilian or military, against armed attack.

True, the Framers didn’t grant the president power to initiate hostilities at his pleasure. They gave Congress, not the president, the authority to raise and support armies, to create a navy, and to make rules and regulations for their governance. It’s also up to the legislative branch to define the legal framework for armed conflict: offenses against international and military law, the procedures for their prosecution, the treatment of captured enemy property and prisoners and so forth.

Congress also has the power “to provide for organizing, arming, and disciplining, the militia.” Military officers are subject to Senate confirmation. Congress can use its exclusive appropriation powers to limit or eliminate funding for a particular conflict—if lawmakers are prepared to take the resulting political risks. Inaction or nonbinding resolutions have no constitutional import.

Even if it passes legislation, Congress cannot dictate when and how the president exercises his power over the military forces it has provided—especially in selecting targets. Like any American, Speaker Nancy Pelosi is free to speak her mind. But her claim that the attack on Soleimani was “provocative and disproportionate” is preposterous.

Iran has been engaged in on-and-off armed conflict with the U.S. since “students” seized the embassy in Tehran in 1979. Soleimani was a uniformed member of the Iranian armed forces, and a critical player in Iran’s worldwide terror campaign. All that made him a legitimate target. The notion that Soleimani was too senior to be killed finds no support in the laws of armed conflict. Even the most senior military leaders can be targeted, as the U.S. did in 1943 when it shot down Adm. Isoroku Yamamoto’s plane in New Guinea.

Nor is it legally relevant, as some congressional Democrats have claimed, that killing such a high-ranking officer could heighten the danger of a wider war. Any military action has the potential to escalate hostilities, as do other exercises of presidential authority. President Franklin D. Roosevelt’s imposition of an oil embargo against Japan in August 1941 arguably prompted the attack on Pearl Harbor four months later.

Under Mrs. Pelosi’s logic, virtually every major foreign-policy decision would require congressional authorization. Imagine if President John F. Kennedy had to ask lawmakers for approval during the Cuban Missile Crisis of 1962 before subjecting Cuba to a “naval quarantine,” an act of war against Havana. The threat of Soviet missiles in Cuba was real, but it wasn’t “imminent” in the sense that Mr. Trump’s critics use that word today.

Kennedy acted to prevent a long-term, highly dangerous change in the nuclear balance of power that would have put Moscow in a position to launch a nuclear attack on the U.S. with virtually no warning. But there was no reason to think an attack was planned for the immediate future.

Kennedy decided that action, while risky, would enhance deterrence, as President Trump did when he ordered the killing of Soleimani. The president deserves credit for a decision that would, at any time until recently, have been considered a triumph by Democrats and Republicans alike.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

Source: https://www.wsj.com/articles/congress-declares-war-but-only-the-president-can-make-it-11579133486

The Senate Knows Enough to Acquit Trump

By David B. Rivkin, Jr., and Elizabeth Price Foley

5 January 2020 in the Wall Street Journal

Give Nancy Pelosi this: She has chutzpah. Senate Majority Leader Mitch McConnell responded Friday on the Senate floor to the House’s refusal to appoint managers and transmit its articles of impeachment against President Trump to the upper chamber. “For now,” Mr. McConnell said, “we are content to continue the ordinary business of the Senate while House Democrats continue to flounder. For now.”

Mrs. Pelosi’s response: “The GOP Senate must immediately proceed in a manner worthy of the Constitution.” Never mind that the hold-up is at her end.

Yet now that Mr. Trump has been impeached, the Senate is constitutionally obliged to address the matter. Neither Mrs. Pelosi’s intransigence nor Senate rules, dating from 1868, that peg the commencement of an impeachment trial to the House’s appointment of impeachment “managers” justify an indefinite delay.

As Mr. McConnell noted, the Constitution’s Framers emphasized the importance of a speedy trial in cases of impeachment. “The procrastinated determination of the charges,” Alexander Hamilton wrote in Federalist No. 65, would do “injury to the innocent,” work to “the advantage of the guilty,” and sometimes do “detriment to the state, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House.”

Mrs. Pelosi is holding the impeachment articles hostage, she says, to ensure that the Senate holds what she regards as a “fair” trial. Her central demand is that the Senate permit House managers to call witnesses the House didn’t hear from before impeaching the president. Putting aside the rank hypocrisy of this demand, the Constitution provides that “the Senate shall have the sole power to try all impeachments.” The House has no say in how the trial is conducted.

Mr. McConnell appears to believe it is to his advantage to let Mrs. Pelosi fumble about “for now.” But the Constitution obliges the Senate to act at some point. If the House does not relent, the Senate has two options. It could take the position that because the House bears the normal prosecutorial burden of production and persuasion, Mrs. Pelosi’s refusal to engage with the Senate requires the summary dismissal of the articles. Alternatively, the Senate could take a page from the judiciary’s handbook and appoint outside counsel as managers to make the House’s case against Mr. Trump.

If managers are appointed by either the House or the Senate, the Senate should not conduct a trial on the facts. Instead it should dismiss the articles as a matter of law. The House has alleged no impeachable offense, and therefore no evidence can convict Mr. Trump.

The first article charges the president with “abuse of power” in his dealings with Ukrainian President Volodymyr Zelensky. There are two ways a president can abuse power: by doing something that exceeds his constitutional authority (such as unilaterally imposing a tax) or by failing to carry out a constitutional obligation (refusing to enforce a law). Neither is applicable here.

Mr. Trump had ample constitutional authority to ask Mr. Zelensky to investigate Ukrainian involvement in the alleged Democratic National Committee server hack, the related genesis of the Russia collusion narrative, and Joe and Hunter Biden’s potentially corrupt dealings in Ukraine. The Supreme Court stated in U.S. v. Curtiss-Wright Export Corp. (1936) that the president is the “sole organ of the federal government in the field of international relations,” with exclusive authority to conduct diplomatic relations.

House Democrats don’t dispute this, or claim Mr. Trump’s actions were illegal in themselves. Rather, they allege that he had “corrupt motives” for doing them.

The “corrupt motives” theory is inherently corrosive of democracy. Motives are often mixed, difficult to discern and, like beauty, generally in the eyes of the beholder—which in this case sees through partisan lenses. To Democrats, the transcript of the Trump-Zelensky call demonstrate the desire to harm Democrats; to Republicans, a desire to root out corruption.

Any investigation involving governmental malfeasance can damage the president’s political rivals or benefit allies. But the president has a constitutional duty to “take care that the laws be faithfully executed,” even if his political opponents may be violating them. To bar investigations of the president’s political opponents would effectively hand them a get-out-of-jail-free card and traduce the rule of law. And virtually everything elected officials do serves political ends. If a president’s pursuit of his political interests is impeachable, every president is removable at Congress’s whim.

The House Democrats’ theory will encourage impeachment whenever a President exercises his constitutional authority in a manner offensive to the party controlling the House. The Framers vehemently opposed impeachment for policy disagreements, as legal scholar Michael Gerhardt noted during President Clinton’s impeachment inquiry in 1998. He told the House Judiciary Committee that “one of the most often repeated pronouncements of the framers” was “that impeachment is not designed to address policy differences or opinion.” He referred the committee an “excellent study” by Peter Hoffer and N.E.H. Hull, which warned that “impeachable offenses are not simply political acts obnoxious to the government’s ruling faction.”

The second impeachment article charges Mr. Trump with “obstruction of Congress” for asserting executive privilege in response to subpoenas. But impeachment doesn’t abolish the separation of powers The president has ample constitutional basis to resist congressional demands of documentary and testimonial evidence, particularly when it involves his White House advisers and sensitive national-security issues. This article is not only legally baseless but outrageous, since the House didn’t bother asking a judge to compel White House aides to testify. Instead, Mrs. Pelosi insists Mr. McConnell make it happen.

The Senate must stop the madness. If the House chooses not to pursue its case, the Senate has the authority and the duty to move forward and acquit the president without hearing additional evidence. Both with respect to the timing of the impeachment trial and the actual trial procedures, the Senate must fulfill its constitutional duty as the ultimate check on the House majority’s partisan passions and abuse of its impeachment power.

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Source: https://www.wsj.com/articles/the-senate-knows-enough-to-acquit-trump-11578262402