Tag Archives: high crimes

Impeaching a President

A 1974 Congressional staff memorandum, entitled Report by the Staff of the Impeachment Inquiry, has resurfaced. The Report was prepared in connection with the potential impeachment of Richard Nixon. Hillary Clinton was a young attorney hired to help with the work, though her name does not appear on the list of contributors on the author page. The analysis element of the Report runs only 26 pages, but contains a compelling and unique assessment, given the circumstances of its creation, of the appropriate criteria for impeachment proceedings by the House of Representatives. The Republican enablers of Donald Trump notwithstanding, the Report is consistent with contemporary analyses of the reasons for and essential elements of impeachment, as intended by the framers, as well as the considerations that are not required criteria for impeachment under the Constitution.

The remaining pages of the Report in two appendices summarize the proceedings of the Constitutional Convention of 1787 regarding impeachment and various American impeachment cases going back to 1797, most of which relate to federal judges. As a reminder, impeachment by the House of Representatives is in the nature of a political indictment; it is a set of accusations. The trial of articles of impeachment is conducted by the Senate. Conviction requires a vote of two-thirds of the Senators present.

I will spare you the intricate legal details and summarize the key points. If you want to read the memo itself, it can be found at https://bit.ly/2lPNB6p

The Constitution states that impeachment may be brought for “Treason, Bribery, or other high Crimes and Misdemeanors,” a sequence of words that historically referred to “offenses … against the system of government.” Report at 5. Through several centuries, impeachment was determined to refer to “negligent discharge of duties and improprieties in office,” “abuse of official power or trust,” and “corruption in office.” Report at 6-7. Most significantly, while the commission of crimes in office may be included in an impeachment charge, violations of common law or criminal law are not prerequisites. Impeachment was intended as a broad remedial regime for “executive abuse and usurpation of power.” Report at 8.

The Report makes clear that violations of Constitutional mandates, such as the prohibition of emoluments from foreign powers are proper subjects for impeachment. Report at 13. And, in a discussion with direct implications for a current issue swirling around Donald Trump, the Report notes that Convention delegate George Mason stated that the use of the presidential pardon power to “pardon crimes which were advised by himself” or “to stop inquiry and prevent detection” are proper subjects of impeachment. Report at 13.

Of similar import in relation to Trump’s appointment of grifters to the Cabinet, the Report at 15 makes clear that the President may be impeached if he allows executive officers appointed by him or under his supervision to commit high crimes and misdemeanors or “neglects to superintend their conduct.”

It is worth repeating that impeachment does not require, though it certainly permits, allegations of conduct that would violate the criminal code.

Much more common in the articles are allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions. Recitals that a judge has brought his court or the judicial system into disrepute are commonplace. In the impeachment of President Johnson, nine of the articles allege that he acted “unmindful of the high duties of his office and of his oath of office,” and several specifically refer to his constitutional duty to take care that the laws be faithfully executed…. Impeachment is “intended to reach a broad variety of conduct by officers that is both serious and incompatible with the duties of the office. [Report at 21]

Finally, in its detailed rejection of the argument that an indictable crime must be alleged in an impeachment, the Report states that,

Unlike a criminal case, the, cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.

This understanding of impeachment bears directly on the conduct of Donald Trump in ways too numerous to mention in a one blog post. It is clear, however, that the Report provides a solid legal foundation for impeaching Trump if the Democrats controlling the House of Representatives have sufficient determination to use the tools available to fight the criminality and abuse of office that has characterized Trump’s conduct of the presidency since his inauguration.

The principal arguments against impeachment appear to be two: (1) political unpopularity — the people won’t approve of trying to remove Trump with the election just about a year away; and (2) the Senate will never convict because the Republican majority will never abandon Trump no matter what the evidence shows.

I doubt that the first reason is true except as to Trump’s loyal base who apparently will support him no matter what he does. But all available evidence points to the reality that the anti-Trump segment of the population outnumbers the Trumpers by a significant margin. There is no apparent reason for the House to concern itself with the Trumper sentiment that will never turn against Trump.

As to the second factor, given Republican intransigence, the smart move is to conduct a very slow impeachment process. Present the extensive evidence slowly in hearings throughout the next year but do not take a vote in the House and thus deny the Senate the chance to “exonerate” Trump following a show trial before the 2020 election.

 

 

We’re Not Better Than This

Rep. Elijah Cummings wrapped up the day-long public hearing today with the repeated statement that “we are better than this.” I understand what he was trying to say but I have to say it is simply not true. Michael Cohen’s riveting and history-making testimony, supported by documents, showed conclusively that the sitting president of the United States engaged in fraudulent and criminal schemes to cover up payments that were directly related to the 2016 election, not to mention other matters related to tax fraud and other actions that were, even after Watergate, unimaginable for the highest officer in the federal government.

I have written elsewhere that I did not believe Cohen would lie in this testimony because he knows that Robert Mueller and the prosecutors in the Southern District of New York were watching. He also has seen what has happened to Paul Manafort whom Mueller has called to task for lying during his promised cooperation with the Special Prosecutor’s office. Cohen would have to be insane to testify falsely at this point. He may be many things, not much to admire, but I doubt he is insane.

For their part, the Republicans on the committee were unanimous in their relentless repetition of one theme: Cohen has lied before and can’t be trusted now. What is most compelling is that no Republican asked any questions about Trump’s conduct. Their entire “defense” was to attack, again and again, Cohen’s credibility while ignoring the documents Cohen produced to support his testimony. The best they could do was to place into the record articles written by various people about, again, Cohen’s credibility. The Republicans have, I suggest, essentially confessed that Cohen spoke the truth today. Their attempts to deflect were, I believe, a complete failure.

That is not to say that Trump’s political base won’t continue to talk the party line in support of Trump. They will likely see the “rat” claim that Trump made as more compelling and important than the president’s underlying criminal behavior. It will be very interesting to see whether any Republican in Congress, in either house, concludes that the president is no longer supportable. I seriously doubt it.

A final observation. I don’t pretend to understand all the political machinations or strategies that underlie the holding of a hearing such as occurred today, but I was extremely concerned at Chairman Cummings’ reluctance to control the hearing. This enabled Republicans to posture, to talk over the witness, to interrupt other committee members and generally to comport themselves as a bunch of hooligans. Cummings allowed the Republicans to make repeated scurrilous comments about his motives and leadership without response. This was very disappointing. He has more patience than I do. In a similar situation, I would have rigorously enforced proper order and the courtesies that the Republicans loudly bemoaned when, for example, Rep. Tlaib objected to the sordid display of Republicans bringing a black woman into the committee area to “bear witness” to Trump’s alleged non-racism. Cummings should have ruled Reps. Meadows and Jordan were out of order.

The Republicans disgraced the Congress and disgraced themselves today. They should be, but aren’t, ashamed.

The good news is that revelations made today will have legs. There will be more and deeper investigations as a result of Cohen’s testimony, including, very importantly, the names of witnesses who know even more about, and have documents that will show, Donald Trump’s high crimes and misdemeanors.

Most important Book You’re Not Going to Read This Year

I have just finished reading Can It Happen Here? Authoritarianism in America, edited by Cass Sunstein. Sunstein is the Robert Walmsley University Professor at Harvard University where he founded its Program on Behavioral Economics. He is the author of, among many others, Impeachment, A Citizen’s Guide, which you are also not going to read, but should.

The contributors of the essays in this stunning book are mostly distinguished law professors from Harvard, Yale, Chicago, Columbia, NYU and Duke. These people know whereof they speak.

And speak they do, sometimes a bit turgidly as law professors are wont to do, but also brilliantly and incisively addressing the sources of risk that the United States could lose its hold on democracy. It’s important to understand that this is not an anti-Trump screed, although, as you might expect, Trump’s conduct as president figures prominently in many of the essays. The reason is that his behavior is in the classical line of actions taken by political strong men who have undermined democracy in their countries. It’s also important to remember the United States has some blood on its own hands from past episodes of authoritarian behavior induced by crises such as the attack on Pearl Harbor and the 9/11 attacks on the World Trade Center.

The threats to American democratic institutions, free press, elections and other features of a free and open society in which we have grown up are real and immediate. While some of the essays are guardedly optimistic about the resiliency of our Constitution and institutions to resist the imposition of an authoritarian regime, you will find cold comfort in most of the essays. They are, along with other recent works like Elaine May’s Fortress America – How We Embraced Fear & Abandoned Democracy, compelling, history- and fact-based accounts of how democracy can fail, and may actually be failing, under the relentless pressures of an autocratic president supported by a single-party Congress. These are conditions not contemplated by the Founding Fathers whose Constitution, as brilliant as it is, may lack sufficient safeguards against one-party rule that does not respect the values on which that document was based.

If you are serious about understanding what is happening in American politics today, this book is a must-read.

To give you a taste, the chapter entitled “Constitutional Rot” observes that “These four horsemen — polarization, loss of trust, economic inequality, and policy disaster — mutually reinforce each other.” Further, “In an oligarchical system, regardless of its formal legal characteristics, a relative small number of backers effective decide who stays in power.”

In the chapter entitled “Beyond Elections: Foreign Interference with American Democracy,” Samantha Power discusses how non-mediated social media opened the door to Russian influence in U.S. elections. The chapter “Paradoxes of the Deep State” addresses little-known history of the so-called “Deep State” with surprising observations about the “leaks” in the Trump administration. Then, the chapter “How We Lost Constitutional Democracy” sets out grave and chilling warnings about the erosion of democratic norms and the limits of the Constitution as an obstacle to the destruction of democracy as we know it.

As I said earlier, this book is serious stuff and not an easy read. Yet the issues analyzed in it are critical to a deep understanding of what is happening and the extent to which we can “count on the Constitution” as a defense against loss of freedom and democratic process.

When you are finished being frightened to death, I continue to urge everyone to read On Tyranny-Twenty Lessons from the Twentieth Century, by Timothy Snyder, a measly 126 pages. Finally, if you want to dig deeply into some of the mysteries of the behaviors of voters whose conduct you consider self-defeating and borderline insane. I commend to you two tomes that I guarantee will open your eyes to ideas you never dreamed of: Thinking, Fast & Slow, by Nobel Prize winner Daniel Kahneman, and Behave – the Biology of Humans at Our Best and Worst, by Robert Sapolsky [skip the details on endocrinology, unless you really dig that sort of stuff].

To conclude, for now, I believe the following to be more likely true than not:

1. Trump’s election was unlawfully procured through interference by, and his collusion with one or more foreign powers; the more he fumes and fulminates against this idea, the more likely it seems to be true;

2. Trump has violated Article II, Section 3 of the Constitution by failing to “take care that the laws be faithfully executed;”

3. Trump has violated the emoluments clause of the Constitution, Article I, Section 9;

4. Trump is guilty of obstruction of justice, which qualifies as a “high crime” or “misdemeanor” under the Constitution, Article 2, Section 4, and, in the specific circumstances, is guilty of treason as well;

5. Trump and members of his family and officials appointed by him, along with Republican members of Congress, have engaged in a conspiracy to conceal evidence of crimes by them and others and to prevent the full investigation and prosecution of such crimes by appropriate government authorities.

I also believe the following truths are now indisputable:

1. Democratic norms are under active siege by a president who neither understands nor cares about such norms;

2. While the prospect of indictment of the president as a result of Special Prosecutor Mueller’s investigation is highly appealing, there is little chance that such a move is going to occur soon and it will, in any case, provoke a lengthy constitutional crisis that will end up in the Supreme Court and therefore not afford a near-term solution to the governance crisis that confronts the nation;

3. The most immediate and most important defense against the oligarchical theocracy, or the theocratic oligarchy, if you prefer, that the president, vice president and Republican Congress want to establish, and to some degree have already established, is for the Democratic Party to take control of Congress in the 2018 elections;

4. Democratic control of both houses of Congress would immediately create an insurmountable bulwark against further destruction of democracy by the administration and lay the framework for removal and prosecution of the Trump gang and its enablers;

5. Trump’s sycophantic supporters are preparing to defend him with aggressive voter turnout and contributions of huge amounts of money. Nonetheless, Democrats must overwhelm them at the polls if we are to turn the tide against the fascist practices of this administration. If we fail, we will face two more years of entrenchment, destruction of the independence of the judiciary and undermining of the free press. The loss of those two elements of the Constitution’s system of checks and balances will make it very difficult, perhaps impossible, to turn back the tide. It’s 2018 or nothing.

6. Every American should view this situation as a grave threat to their well-being and the well-being of their families present and future. It is time for the Democratic Party leadership to start leading politically and for the personal ambitions and agendas of the old guard to yield the floor to the generations that will have the most to lose if the foundations of democracy are not restored. Remember that those who fail to heed the lessons of history are doomed to repeat it.

7. It is time for a game plan that does not repeat the same mistakes that led to the disastrous defeat in 2016. The Republicans know the same things we know about what happened. They have a keen understanding of their political base and how to stimulate it to action on behalf of their agenda. Trump’s base is uninterested in the truth about him or his policies; they have created their own truths in which they choose to believe and nothing is going to change most of them. It is therefore absolutely essential that every potential Democratic vote be cast in every district. There have been a few interim wins in replacement contests, but these are no laurels on which to rest. Democrats cannot afford to give up any seat that is potentially winnable. It’s now or never.