Nice summary of the section titled: D. Presidential Pretexts Need Not Be Accepted at Face Value
Because courts assess motive all the time, they have identified warning signs that an explanation may be untrustworthy. Those red flags include the following:
First, lack of fit between conduct and explanation. This exists when someone claims they were trying to achieve a specific goal but then engaged in conduct poorly tailored to achieving it. For instance, imagine the President claims that he wants to solve a particular problem—but then he ignores many clear examples of that problem, weakens rules meant to stop it from occurring, acts in ways unlikely to address it, and seeks to punish only two alleged violators (both of whom happen to be his competitors). The lack of fit between his punitive conduct and his explanation for it strongly suggests that the explanation is false, and that he invented it as a pretext for corruptly targeting his competitors.
Second, arbitrary discrimination. When someone claims they were acting for a particular reason, look to see if they treated similarly-situated individuals the same. For example, if a President says that people doing business abroad should not engage in specific practices, does he punish everyone who breaks that rule, or does he pick and choose? If he picks and chooses, is there a good reason why he targets some people and not others, or does he appear to be targeting people for reasons unrelated to his stated motive? Where similarly-situated people are treated differently, the President should be able to explain why; if no such explanation exists, it follows that hidden motives are in play.
Third, shifting explanations. When someone repeatedly changes their story, it makes sense to infer that they began with a lie and may still be lying. That is true in daily life and it is true in impeachments. The House may therefore doubt the President’s account of his motives when he first denies that something occurred; then admits that it occurred but denies key facts; then admits those facts and tries to explain them away; and then changes his explanation as more evidence comes to light. Simply stated, the House is “not required to exhibit a naiveté from which ordinary citizens are free.”
Fourth, irregular decisionmaking. When someone breaks from the normal method of making decisions, and instead acts covertly or strangely, there is cause for suspicion. As the Supreme Court has reasoned, “[t]he specific sequence of events leading up the challenged decision” may “shed some light on the decisionmaker’s purposes”—and “[d]epartures from the normal procedural sequence” might “afford evidence that improper purposes are playing a role.” There are many personnel and procedures in place to ensure sound decisionmaking in the Executive Branch. When they are ignored, or replaced by secretive irregular channels, the House must closely scrutinize Presidential conduct.
Finally, explanations based on falsehoods. Where someone explains why they acted a certain way, but the explanation depends on demonstrably false facts, then their explanation is suspect. For example, if a President publicly states that he withheld funds from a foreign nation due to its failure to meet certain conditions, but the federal agencies responsible for monitoring those conditions certify that they were satisfied, the House may conclude that the President’s explanation is only a distraction from the truth.
When one or more of these red flags is present, there is reason to doubt that the President’s account of his motives is accurate. When they are all present simultaneously, that conclusion is virtually unavoidable. Thus, in examining the President’s motives as part of an impeachment inquiry, the House must test his story against the evidence to see if it holds water. If it does not, the House may find that he acted with corrupt motives—and that he has made false statements as part of an effort to stymie the impeachment inquiry.