The Case for Impeaching Trump

by Elizabeth Holtzman

  According to Cass Sunstein, the wording was adopted so that impeachment would be directed at “serious criminality or the abuse or misuse of the responsibilities of high office” (emphasis mine). “High” is not a quantitative but a qualitative adjective. It does not mean “very bad.” It means the sort of misdeeds committed by holders of high offices, not by ordinary people.

  It is also important to recall how and why impeachment was inserted into the Constitution. As noted above, as the framers approached the end of the debate about impeachment, treason and bribery were the only grounds specified. Mason’s protest that treason “will not reach many great and dangerous offenses” and that “[a]ttempts to subvert the Constitution may not be Treason” prompted the adoption of “high crimes and misdemeanors.” The phrase attempts to subvert the Constitution is what “high crimes and misdemeanors” was partially intended to cover, and it is obvious that these attempts will not necessarily be criminal in nature. Efforts to subvert could involve abuses of power that are not criminal. Indeed, it’s not even clear that the term great and dangerous offenses refers exclusively to crimes, either.

  Overall, the historical record of the debate at the Constitutional Convention in Philadelphia shows that the impeachment provision was not meant to require a crime. After drafting, the Constitution was sent to the states for ratification, and again, the historical record is clear: in the state debates, as Professor Sunstein points out, impeachment was understood as a way of addressing “an egregious violation of the public trust while in office.” Hamilton, one of the most respected commentators on the proposed Constitution, explained that impeachment involves “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust” (Federalist paper No. 65). Again, no reference to the requirement of a crime.

  “In short, the debates at the Constitutional Convention show at least that impeachable offenses were not limited to indictable offenses,” writes UNC–Chapel Hill law professor Michael J. Gerhardt, author of The Federal Impeachment Process. He finds the same to be true of the various state debates on ratification.

  Congressional precedent is another factor to be considered. At the beginning of the House Judiciary Committee’s impeachment inquiry into President Nixon, committee members were given a staff memorandum on the meaning of “high crimes and misdemeanors.” The memo’s conclusion was that impeachment did not require the commission of a crime. That issue was vigorously debated, and most committee members, including a number of Republicans, were persuaded that the memo was correct. (Excerpts from the memorandum can be found in Appendix I.)

  None of the three articles of impeachment the Judiciary Committee adopted during Watergate explicitly charged Nixon with a crime, tracked the criminal code, or rested on any premise that Nixon had committed a crime. The first article dealt with Nixon’s cover-up of the Watergate break-in. While using the phrase obstructed … justice (Nixon “prevented, obstructed and impeded the administration of justice”), the article neither spelled out the elements of the crime of obstruction of justice nor stated that Nixon had committed obstruction of justice or, in fact, any other crime. There is simply no claim that Nixon violated any criminal statute, only that he violated his oath of office and “his constitutional duty to take care that the laws be faithfully executed.” Neither violation is a crime, nor can either violation be committed by an ordinary person. These are “political crimes” against the government committed by persons of high office in that government. That is why the article charged President Nixon with “high crimes and misdemeanors.” The second article of impeachment dealt with Nixon’s abuse of power, such as ordering the IRS to audit his political enemies. That order was not a crime.

  The impeachment of President Bill Clinton also supports the position that impeachment is not synonymous with criminal behavior or conviction of a crime. The two articles of impeachment approved by the House of Representatives were grounded in criminal law matters, to be sure: assertions that the president had lied under oath and had obstructed justice. But as the leaders of the House impeachment inquiry put it in their memorandum to the Senate, “The ultimate issue is whether the President’s course of conduct is such as to affect adversely the Office of the President and also upon the administration of justice, and whether he has acted in a manner contrary to his trust as President and subversive to the Rule of Law and Constitutional government.” I believe that the Clinton impeachment was an abuse of power by the House of Representatives and that his behavior did not rise to the level set by the House leaders or the Constitution. Also, President Clinton did not use the powers of his office to engage in the misconduct with which he was charged.

  It should also be noted that the impeachment of President Andrew Johnson centered on his disregarding a statute that required him to obtain Senate approval before he could remove a Senate-confirmed cabinet officer from office. There was no violation of the criminal law involved in that impeachment, which, perhaps because of its highly partisan character, failed in the Senate.

  Other highly regarded scholars of impeachment who have studied the issue in depth find no requirement of a crime. Yale Law School professor Charles L. Black Jr., in his iconic Impeachment: A Handbook, defines “high crimes and misdemeanors” as follows:

  I think we can say that high Crimes and Misdemeanors, in the constitutional sense, ought to be held to be those offenses which are rather obviously wrong, whether or not “criminal,” and which so seriously threaten the order of political society as to make pestilent and dangerous the continuation in power of their perpetrator.

  Harvard law professor Raoul Berger, in his authoritative work Impeachment: The Constitutional Problems, tracks the development in Britain of the term “high crimes and misdemeanors” from the fourteenth century and argues persuasively that it did not refer to ordinary crimes but rather to acts against the state or government.

  Professor Sunstein, who recently addressed the issue, contends that impeachment does not require a criminal act. “Impeachment is available for egregious abuses of official authority. Some crimes do not count as such because they are essentially private (failing to pay taxes …) or because they are not sufficiently serious. Some offenses that are not crimes are nonetheless impeachable—punishing political enemies, trampling on liberty,” he notes. Noted constitutional expert Professor Laurence Tribe refutes the idea as well that impeachment requires criminal behavior, and in To End a Presidency, he and Joshua Matz define high crimes and misdemeanors as follows: “like treason and bribery, they involve corruption, betrayal, or an abuse of power that subvert core tenets of the US governmental system.”

  The simple truth is a president can be impeached both for things that are crimes and things that are not. Not all crimes are impeachable.

  After making his faulty claim that a president can be impeached only for a crime, Professor Dershowitz goes on to analyze the possible criminal claims against Trump. There, too, his argument is deficient. For example, he asserts that no “deal was made” by Trump or his campaign with the Russians in return for their providing dirt on Hillary Clinton. Perhaps that is so, but how does he know? Obviously, he can’t he sure. I argue later in this book that there is sufficient evidence, both circumstantial and direct, to raise a substantial concern about whether a “deal was made.” Either way, we cannot simply accept Professor Dershowitz’s unproven claim that there was no deal and then move on. The question whether such a bargain was made is so significant that it must be fully investigated.

  Professor Dershowitz raises another argument against impeachment: that a congressionally created commission such as the 9/11 Commission could investigate instead of a special counsel or prosecutor. He even goes so far as to say that special counsel Mueller should hold his investigation in abeyance while that happens. This is a convenient argument for a pro-Trump advocate. Since a president cannot be impeached until convicted of a crime, as Professor Dershowitz contends, shutting down a cri
minal investigation creates a very easy way to avoid impeachment altogether.

  And what are the reasons Professor Dershowitz offers for this interruption of Mueller’s investigation? The public is “losing faith” in Mueller, and a commission could be a better way of learning the “whole truth.” If the public is, in fact, losing faith in Mueller, it is a direct result of the baseless attacks by President Trump on his investigation—attacks that appear designed to impede and undermine the investigation and may themselves be a crime or impeachable abuse of power. No president should be able to avoid a criminal investigation—and criminal charges—simply by relentlessly attacking the prosecutor.

  Nor is it clear that a commission would be better able to get the whole truth. There is no reason to believe that President Trump would honor a commission’s subpoenas for his documents and testimony, and it is also unclear whether the Supreme Court would enforce them. In the Nixon tapes case, it was a grand jury subpoena the Supreme Court upheld, favoring the needs of the criminal justice system over presidential claims for nondisclosure.

  A commission promises a cathartic truth-seeking effort without the unpleasant need to hold people accountable, and impeachment, after all, is a harsh act. Without proper limits, without standards, and in the wrong hands in Congress, it is a dangerous tool. Not as dangerous, I would argue, as an unchecked, autocratic president. But, still, threatening.

  That said, an impeachment does not deprive anyone of liberty or life, which conviction of a crime potentially does. At worst, it deprives someone of a job through a vote by senators and representatives, and the process has two substantial safeguards as well: Each of the senators and representatives will have to stand for election before the people and defend his or her vote. And in a presidential impeachment, the vice president, duly elected, becomes president, which means that the party in power remains in power.

  But if a president were to subvert the constitution or commit great and dangerous offenses? Sometimes, it turns out, we just really need to be able to fire him or her.

  3

  Failure to Protect the Integrity of Our Federal Election Process

  Russia engaged in information warfare against the United States in 2016 in order to tamper with the presidential election. It does not matter why it did so or which candidate it supported (though it did in fact support Donald Trump). It does not matter whether its attacks actually affected the outcome, though many suspect they did. A hostile foreign nation attacked our nation’s vital election infrastructure and manipulated public attitudes about the candidates and influenced hot-button issues and even people’s decisions whether or not to vote. There are only two suitable responses: unequivocal condemnation and a vigorous defense. President Trump has done neither. His outright refusal to defend and protect us against these attacks is a potentially impeachable failure “to preserve, protect and defend the Constitution of the United States,” which rests above all else on the fair and honest election of a president, vice-president, and members of Congress.

  A president’s words and actions when our country is under attack are of the gravest importance. But President Trump has not condemned or even unambiguously acknowledged Russia’s sustained and sophisticated attack on the 2016 election, and he has failed to develop a comprehensive plan to counter ongoing and future attacks. He has been more than recalcitrant: he encouraged efforts to assault our democracy and has actively undermined viable efforts to protect our election system.

  The Russian assault on our election in 2016 was a cyber Pearl Harbor. If the Russians had aimed missiles at us instead of electronic pulses at our voting booths and social media, the demands for swift and decisive presidential action would be overwhelming. But the president has muted this reaction by a web of deceptions about Russia’s role and the damage it caused, leaving us vulnerable as a nation to further interference in the future.

  The Russian government thus continues to engage in cyberwarfare against the United States, following much the same playbook as in 2016: Our election systems are being tested by Russian intrusions. Government officials and candidates are being targeted for hacking. New social media campaigns to foment crisis are under way. More recently, the Russians have begun cyber incursions into our nation’s electrical and power grids.

  In his responses (or lack thereof), President Trump has:

  First, disregarded his responsibilities as commander in chief to repel and prevent attacks on our country, including cyberattacks;

  Second, shunned his constitutional responsibility in Article II, Section 3, of the Constitution to “take Care that the Laws be faithfully executed”;

  Third, impaired the basic constitutional right of Americans to fair and honest elections;

  Fourth, systematically made false and misleading public statements for the purpose of deceiving the American people about the identity of the attackers and his knowledge of the attacks; and

  Fifth, withheld relevant and material evidence, information, or assistance from the intelligence community, which was trying to block the Russian attacks in 2016.

  Taken together, these violations of constitutional duty are grounds for impeachment.

  Attacks on the 2016 Election

  Russia’s cyberattacks on the American election infrastructure and public opinion were sophisticated and serious, involving more than zeros and ones. Millions of dollars were spent. Hostile actors entered American territory and stole identities of American citizens. They infiltrated America’s political institutions. They broke numerous US laws.

  The attacks focused on three fronts:

  An effort to break into the nation’s election machinery;

  Theft and distribution of confidential information to hurt the Hillary Clinton campaign; and

  Use of social media, combined with Russia-funded and Russia-initiated events and rallies, to sow political discord, heighten racial tension, and influence the election outcome by depressing voter turnout for Clinton and increasing it for Trump.

  We know from three prominent sources that the Russian government assaulted the 2016 elections:

  American intelligence agencies investigated the attacks and are unanimous that they came from Russia.

  The Department of Justice (DOJ) has indicted twenty-six Russians (a subset of the thirty-four people in total whom Mueller indicted) and three companies for the attacks, laying out detailed evidence in support of its allegations.

  Three major social media companies—Facebook, Google, and Twitter—conducted their own investigations and concluded that Russian manipulation occurred.

  The Intelligence Community Conclusions

  On January 6, 2017, the Office of the Director of National Intelligence released a declassified report on the Russian assault. Reflecting the combined judgment of the DNI and the heads of the National Security Agency, the FBI, and the CIA, it found:

  Russian efforts to influence the 2016 US presidential election represent the most recent expression of Moscow’s longstanding desire to undermine the US-led liberal democratic order, but these activities demonstrated a significant escalation in directness, level of activity, and scope of effort compared to previous operations.

  … Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. …

  … Moscow will apply lessons learned from its Putin-ordered campaign aimed at the US presidential election to future influence efforts worldwide, including against US allies and their election processes.

  Since then, the heads of the major intelligence agencies—every single one appointed by President Trump—have concurred in the judgment and warned of ongoing efforts to strike at our democracy.

  In June 2017, the Trump-appointed then-director of the CIA, Mike Pompeo, said: “I am confident that the Russians meddled in this election, as is the entire intelligence community.”

  In May 2018, Trump-appointed secretary of homeland security Kirstjen Nielsen said: “We see [Russia] continuing to conduct foreign infl
uence campaigns.”

  In July 2018, Trump-appointed FBI director Christopher Wray said: “The intelligence community’s assessment has not changed. My view has not changed, which is that Russia attempted to interfere with the last election and that it continues to engage in malign influence operations to this day.”

  In August 2018, Trump-appointed director of national intelligence Dan Coats said: “We continue to see a pervasive messaging campaign by Russia to try to weaken and divide the United States.”

  From 2017 through 2018, the Senate Select Committee on Intelligence conducted an independent review of the intelligence community’s conclusions. Committee members held extensive hearings with the intelligence community heads and reviewed the documents that provided the foundation for the conclusion that Russia had assailed our election system in 2016. The committee is headed by a Republican senator from North Carolina, Richard Burr, and it determined that the findings contained in the January 2017 report were sound and that no political pressure was placed on any of the report’s authors.

  Finally, a March 2018 report issued by the House Permanent Select Committee on Intelligence also concluded that Russia engaged in a “multifaceted” attack on the United States and that Russia believes it is “engaged in an information war with the West.”

  The Department of Justice Indictments

  Federal grand juries convened by the DOJ have criminally charged twenty-six people and three companies relating to their actions in 2016 in three separate indictments. The indictments provide detailed evidence of how Russia manipulated social media during the 2016 election, broke into the computer systems of Democratic Party organizations, and used Maria Butina, a spy posing as a student, to infiltrate the American political system on behalf of Russian officials. The goals of these efforts—to destabilize American democracy—could not be clearer.