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How to Talk about Impeachment: Preventing Harm to the Country

In the Atlantic, Yoni Appelbaum has a very long article making the case that the House should start the process of impeaching Donald Trump as a way to start reining in his abuses. At its core, the article argues that impeachment serves as a check on abusive Executive power, whether or not it succeeds. It describes five benefits of starting an impeachment proceeding.

In these five ways—shifting the public’s attention to the president’s debilities, tipping the balance of power away from him, skimming off the froth of conspiratorial thinking, moving the fight to a rule-bound forum, and dealing lasting damage to his political prospects—the impeachment process has succeeded in the past. In fact, it’s the very efficacy of these past efforts that should give Congress pause; it’s a process that should be triggered only when a president’s betrayal of his basic duties requires it. But Trump’s conduct clearly meets that threshold. The only question is whether Congress will act.

I don’t agree with everything in the article. I’ll also note that it dismisses the possibility Trump will be charged with bribery, with virtually no real consideration of the issue.

 The Constitution offers a short, cryptic list of the offenses that merit the impeachment and removal of federal officials: “Treason, Bribery, or other high Crimes and Misdemeanors.” The first two items are comparatively straightforward. The Constitution elsewhere specifies that treason against the United States consists “only in levying War” against the country or in giving the country’s enemies “Aid and Comfort.” As proof, it requires either the testimony of two witnesses or confession in open court. Despite the appalling looseness with which the charge of treason has been bandied about by members of Congress past and present, no federal official—much less a president—has ever been impeached for it. (Even the darkest theories of Trump’s alleged collusion with Russia seem unlikely to meet the Constitution’s strict definition of that crime.) Bribery, similarly, has been alleged only once, and against a judge, not a president.

I’ve argued there’s a good deal of evidence Trump did enter in a quid pro quo agreement — Trump Tower and dirt on Hillary for sanction relief and help with Syria and Ukraine — that would meet even the narrowed standards of bribery laid out in John Roberts’ McDonnell decision.

In any case, the Atlantic piece is very worthwhile. And it serves as welcome background for what I was initially trying to write when I wrote that bribery post.

First, there are more reasons than just Trump’s compromise by Russia to pursue impeachment. Rashida Tlaib laid out the following in the op-ed that preceded her “motherfucker” comment.

We already have overwhelming evidence that the president has committed impeachable offenses, including, just to name a few: obstructing justice; violating the emoluments clause; abusing the pardon power; directing or seeking to direct law enforcement to prosecute political adversaries for improper purposes; advocating illegal violence and undermining equal protection of the laws; ordering the cruel and unconstitutional imprisonment of children and their families at the southern border; and conspiring to illegally influence the 2016 election through a series of hush money payments.

David Leonhardt laid out the reasons this way:

He has repeatedly put his own interests above those of the country. He has used the presidency to promote his businesses. He has accepted financial gifts from foreign countries. He has lied to the American people about his relationship with a hostile foreign government. He has tolerated cabinet officials who use their position to enrich themselves.

Appelbaum describes all the ways Trump violated his oath of office this way:

The oath of office is a president’s promise to subordinate his private desires to the public interest, to serve the nation as a whole rather than any faction within it. Trump displays no evidence that he understands these obligations. To the contrary, he has routinely privileged his self-interest above the responsibilities of the presidency. He has failed to disclose or divest himself from his extensive financial interests, instead using the platform of the presidency to promote them. This has encouraged a wide array of actors, domestic and foreign, to seek to influence his decisions by funneling cash to properties such as Mar-a-Lago (the “Winter White House,” as Trump has branded it) and his hotel on Pennsylvania Avenue. Courts are now considering whether some of those payments violate the Constitution.

More troubling still, Trump has demanded that public officials put their loyalty to him ahead of their duty to the public. On his first full day in office, he ordered his press secretary to lie about the size of his inaugural crowd. He never forgave his first attorney general for failing to shut down investigations into possible collusion between the Trump campaign and Russia, and ultimately forced his resignation. “I need loyalty. I expect loyalty,” Trump told his first FBI director, and then fired him when he refused to pledge it.

Trump has evinced little respect for the rule of law, attempting to have the Department of Justice launch criminal probes into his critics and political adversaries. He has repeatedly attacked both Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller. His efforts to mislead, impede, and shut down Mueller’s investigation have now led the special counsel to consider whether the president obstructed justice.

As for the liberties guaranteed by the Constitution, Trump has repeatedly trampled upon them. He pledged to ban entry to the United States on the basis of religion, and did his best to follow through. He has attacked the press as the “enemy of the people” and barred critical outlets and reporters from attending his events. He has assailed black protesters. He has called for his critics in private industry to be fired from their jobs. He has falsely alleged that America’s electoral system is subject to massive fraud, impugning election results with which he disagrees as irredeemably tainted. Elected officials of both parties have repeatedly condemned such statements, which has only spurred the president to repeat them.

These actions are, in sum, an attack on the very foundations of America’s constitutional democracy.

Russia is but one of the reasons why Trump should be impeached.

Indeed, in the last day two new pieces of evidence about the damage Trump has done with his conflicts of interest have come out. A CREW report cataloging all the conflicts of interest generated from the use of Trump properties to curry favor with him.

  • CREW has identified 12 foreign governments that have made payments to Trump properties during his first two years in office, each of which is likely a violation of the Constitution’s foreign emoluments clause. At least three foreign countries held events at Trump properties during his second year in office, and two of them did so after having held similar events elsewhere in previous years.
  • Instead of pushing back on President Trump’s refusal to divest from his business, allies in Congress have embraced the arrangement. 53 U.S. senators and representatives made more than 90 visits to Trump properties during his second year in office, up from 47 visits by 36 members the prior year, and similarly, at least 33 state-level government officials visited Trump properties, likely resulting in taxpayer funds going into Trump’s coffers.
  • More than 150 political committees, including campaigns and party committees, have spent nearly $5 million at Trump businesses since he became president. In Trump’s second year in office, CREW tracked 33 political events held at Trump properties—13 of which Trump himself attended, meeting and speaking with wealthy donors.
  • Special interests held at least 20 events at Trump properties during the president’s second year in office. Since Trump took office, at least 13 special interest groups have lobbied the White House, some for the first time, around the same time they patronized a Trump property, suggesting that making large payments to Trump’s businesses is viewed as a way to stay in his administration’s good graces.
  • Over the past year, President Trump made 118 visits to properties he still profits from in office, bringing his two-year total to 281 visits. CREW also identified 119 federal officials and employees who visited Trump properties over the past year, up from 70 the prior year.
  • In addition to making frequent visits to his properties, President Trump and other White House staff have promoted Trump businesses on at least 87 occasions. Trump himself mentioned or referred to his company 68 times during his second year in office, more than double the 33 times he did so the prior year.
  • Paying members at Trump’s resorts and clubs have received benefits beyond getting occasional face time with the President. Four Mar-a-Lago members have been considered for ambassadorships since his election, and three other members—with no federal government experience—acted as unelected, non-Senate-confirmed shadow officials in Trump’s Veterans Administration.

Yesterday, the Inspector General for the General Services Administration released a report showing that GSA recognized that Trump’s Old Post Office property might present a problem under the Emoluments Clause, but basically blew off reviewing what to do about it.

We found that GSA recognized that the President’s business interest in the OPO lease raised issues under the Constitution’s Emoluments Clauses that might cause a breach of the lease; however, GSA decided not to address those issues in connection with the management of the lease. We also found that the decision to exclude the emoluments issues from GSA’s consideration of the lease was improper because GSA, like all government agencies, has an obligation to uphold and enforce the Constitution; and because the lease, itself, requires that consideration. In addition, we found that GSA’s unwillingness to address the constitutional issues affected its analysis of Section 37.19 of the lease that led to GSA’s conclusion that Tenant’s business structure satisfied the terms and conditions of the lease. As a result, GSA foreclosed an early resolution of these issues, including a possible solution satisfactory to all parties; and the uncertainty over the lease remains unresolved.

Congress doesn’t have to wait for Mueller to begin reviewing Trump’s conflicts of interest. Indeed, it’d be a far better use of the Oversight Committee’s time to chase down these issues than to interview Michael Cohen and in the process endanger a witness central to the Mueller probe.

Importantly, by focusing on the other ways — other than potential Russian compromise — that Trump has placed his self-interest above the good of the country, an impeachment inquiry might step beyond the debate as it currently stands, where impeachment is considered a political question, to one where it becomes a question of preventing ongoing damage to the country (on top of the legal remedy provided by the Constitution, as I noted in my bribery post).

Sure. An impeachment inquiry may not get 20 Republican votes in the Senate to impeach. But it might. In his first post after laying out why impeachment is necessary, Leonhardt laid out numbers showing that Trump is actually weaker than a lot of people assume.

In the days after I revealed that I had shared information with the FBI, I met with a few Republicans — that was a big part of the reason why I did go public. Remember, I didn’t go to the FBI about Trump, I went about information about the election year attack; but I suspected — and indeed confirmed — that even key members of Congress did not understand the full scope of the attack. My goal in meeting with those Republicans was to point out the damage they were doing by running interference for Trump instead of making sure that the country mounted an adequate response to those aspects of the attack that were not public. I started one meeting with a key Republican member of Congress (we both agreed we would not reveal we had met) literally by saying I was taking a leap of faith in even meeting with him. We agree on literally nothing in politics, except that we love our country. As I left that meeting, that member of Congress told me we may agree on more than I knew.

But that conversation was not about Donald Trump. It was, instead, about how the focus on winning a political fight over Donald Trump was distracting from ensuring the well-being of the country.

We are almost four weeks into a government shutdown that serves just one purpose: to ensure that Donald Trump doesn’t have to face Ann Coulter’s criticism, and the ego damage, of admitting he failed to implement a campaign promise he never delivered over two years of two-house Republican rule. We’ve had stupid government shutdowns before. But never before have we failed to fund the government because one narcissistic man put his own ego above the good of the country.

Now, more than ever, it should be easy to talk impeachment not as a way for Democrats to win partisan advantage by taking down Donald Trump, but as a way to protect the country from the harm he is doing. For the same reason, Democrats should be especially careful about how they talk about impeachment (as this great Balkans Bohemia thread argues); because to actually prevent further damage, impeachment needs to be a sober, legitimate process. That’s what impeachment needs to be about: not a political question. But a question about how to protect the one thing we all share — this country.

Trump’s “Official Acts” to Pay Off a Russian Bribe Should Make Impeachment a Legal Issue, Not Just a Political One

The pearl clutchers screamed about Congresswoman Rashida Tlaib saying that we need to impeach the motherfucker, Donald Trump, demeaning the presidency.* While I’m glad that she has refused to back down from her beliefs in the face of the attacks, I think her more substantial argument about impeachment deserves further attention (which I hope to return to in a later post). More important, I think that the response to Tlaib’s comments has resulted in members of both parties retreating to a debate about Trump’s impeachment using the old formulation that it’s a political, not a legal question.

It is true that impeachment is political question insofar as, so long as there’s the political will, a president can be impeached for anything, even lying about a consensual blowjob immaterial to an investigation into financial scandal. But impeachment is also a legal question. Indeed, the Constitution mandates that the President be removed from office if he is impeached and convicted not just for the unenumerated grab bag of “high crimes and misdemeanors” — where Congress exercises the political will to decide whether a blowjob merits impeachment — but also the enumerated crimes of treason and bribery.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

In spite of Emmet Sullivan’s question — as one of the only people who has read sealed documents laying out what Trump’s transition team did — about whether Mueller’s investigators considered charging Mike Flynn with treason, there’s no chance that Trump will be named in a treason charge.

But there is very good chance he will be named in a conspiracy involving a quid pro quo trading dirt and real estate deals for sanctions relief and other policy considerations.

The other day, I realized something ironic: in precisely the same period Trump was entering in an apparent quid pro quo with Russians, John Roberts was authoring a unanimous Supreme Court decision that clarified the limits of quid pro quo bribery.

And while the Supreme Court believed that Governor Bob McDonnell had not accepted bribes for setting up meetings in exchange for gifts, the language Roberts wrote in the weeks after Trump’s son told some Russians they would revisit Magnitsky sanctions if his father won does not so narrow the definition of bribery as to make Trump’s actions legally excusable.

Roberts described an official act this way:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so.

Notably, the bribed public official doesn’t actually have to follow through on the official act he agreed to take, so it doesn’t help Trump that Congress has repeatedly prevented him from overturning sanctions on Russia.

Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so.

And there are a number of data points in the public record that suggest Trump did believe he had made a deal with the Russians and that Russia had what it believed was a commitment from Trump. For example, four of the people who attended the June 9 meeting testified (most under oath) that Don Jr said his father would revisit sanctions relief if he got elected.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

And Ike Kaveladze, in the call back to his boss to report on the meeting that witnesses observed, was happy with the outcome of the meeting.

It’s not just the Russians who seem to have acted on the meeting. Michael Cohen’s allocution seems to suggest that the meeting tied directly to the negotiations over a Trump Tower, because he took steps to travel to Russian on the day of the meeting.

From on or about June 9 to June 14, 2016, Individual 2 sent numerous messages to COHEN about the travel, including forms for COHEN to complete. However, on or about June 14 , 2016, COHEN met Individual 2 in the lobby of the Company’s headquarters to inform Individual 2 he would not be traveling at that time.

Remember: a “senior campaign official” was involved in discussions about trips to Russia. And had the President’s personal lawyer actually taken this trip to St. Petersburg, the plan was to meet Vladimir Putin (who did attend the forum that year).

While the dates provided in Cohen’s allocution also suggest the disclosure that Russia hacked the DNC halted Cohen’s plans “at that time,” we know that the plans did resume after that canceled trip into July.

The Russians certainly believed they had an agreement. They put in some effort to meet again after Trump won. While finding an appropriate communication channel failed for the Agalarovs, Flynn and Jared Kushner moved to establish a back channel via Sergey Kislyak. When Trump met with Preet Bharara and reportedly agreed to keep him on, Veselnitskaya panicked, and suggested Trump planned to keep him on so he could take him out.

In its indictment of Veselnitskaya, DOJ just established that she was actually working as part of the Russian government when she claimed to have fought to get an MLAT request in her Prevezon case. And Veselnitskaya believed that after Trump won the election, he would take out the prosecutor whom she was facing in court. Ultimately, Trump did take out Preet, firing all his US Attorneys in an effort to do so.

And details from Mike Flynn’s allocution provide one important piece of evidence that Russians believed they had received a commitment from Trump.

After Obama imposed sanctions on Russia partly in retaliation for the election year operation, Trump’s team panicked, both because they wanted to improve relations with Russia, but also because Russia’s role in his victory delegitimized the victory. That is, even those unlikely to be unaware of any quid pro quo recognized that the public accounting of Russia’s role in helping defeat Hillary would make it all the more difficult to deal with Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

Trump’s response, however, was to reach out to Russia and assure them they didn’t need to worry about Obama’s new policy. In response, the Russians made it very clear that Putin had decided not to respond based on the assurances that Flynn gave Kislyak.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

Mueller, of course, has the full transcript of what Flynn said to Kislyak that successfully placated Putin. It is highly likely the transcript provides explicit evidence of an official act to pay off his side of the deal, sanctions relief.

All of which is to say that Mueller may well be finalizing a conspiracy indictment of Don Jr and Trump Org laying out a quid pro quo in which Trump agreed to provide sanctions relief (and some other stuff) in exchange for Russia’s help winning the election.

That Mueller might be able to show all this is bribery may not affect Republican willingness to take the action laid out in the Constitution, to convict Trump in an impeachment inquiry. But given that the Constitution specifically envisions impeaching a President who has accepted a bribe, commentators should stop treating impeachment exclusively as a political issue.

Update: I posted this before I had read this analysis from Jack Goldsmith raising concerns about investigating the President for foreign policy decisions. While I think Goldsmith raises key points, he focuses on actions Trump took as President. But that’s one reason I think the transition activities are so important. If I’m right that the calls to Kislyak amount to an official act, then Trump took it to undermine the official policy of the government, not set it as President. Further, The Trump team had been asked — and at least one person had agreed — to not undermine Obama’s policies during the transition. There were several efforts to hide that they were doing so: the indications they couldn’t reengage on Magnitsky sanctions using the same channels as they used during the election, the request for a back channel, and the meeting with Mohammed bin Zayed al-Nahyan that Susan Rice discovered by unmasking the identities of those who met with him.

The actions Trump took that led to Flynn and Comey’s firings were part of an effort to hide these clandestine efforts during the transition. Yes, they were conducted while he was President. But they were conducted to cover up actions taken before he became President. This is why I keep harping on the remarkable lack of curiosity about why Trump really fired Flynn. The public story Trump is telling is assuredly false. The real reason almost certainly ties back to these transition period actions.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

*Full disclosure: I donated to Tlaib’s campaign.