The Case for Impeaching Trump

by Elizabeth Holtzman

  The president may have committed treason by colluding with Russia to get elected;

  The president may have abused the power of his office by approving the separation of several thousand children from their parents after they crossed the US-Mexico border, in violation of their constitutional rights; and

  The president may have won his election corruptly by allegedly conspiring to conceal his extramarital affairs from the voters through payments of hush money and other possible violations of campaign finance laws.

  I do not believe that the evidence of treason/collusion is sufficient for impeachment at this time. I do think that the president’s decision to separate children from their parents at the border may well be impeachable. And while new facts are constantly emerging about the cover-up of the president’s alleged affairs and related possible violations of campaign finance laws, I feel that the standard for impeachment has not yet been met for this particular set of offenses.

  Collusion or Conspiracy with Russia to Subvert an Election: Treason or High Crime and Misdemeanor?

  President Trump and Vladimir Putin in Helsinki

  President Trump’s extremely troubling responses to Russia’s election interference and his campaign’s multiple contacts with agents of that country’s government are well known and detailed in Chapters 3 and 4. While “treason” was rarely used to describe them, that word cropped up often after President Trump’s astonishing statements during a press conference following his two-hour closed-door meeting with Russian president Vladimir Putin in Helsinki on July 16, 2018. This is what he said:

  My people came to me. Dan Coats came to me and some others. They said they think it’s Russia. I have President Putin; he just said it’s not Russia. I will say this: I don’t see any reason why it would be. … I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today.

  The statement left many Americans aghast. Three days earlier, a federal grand jury had indicted twelve Russian military intelligence officers for attacking the 2016 presidential election. Five months earlier, a different federal indictment had charged thirteen other Russian individuals and three companies with using social media to foment unrest in an effort to influence the election. And in January 2017, US intelligence agency heads briefed President-elect Trump that the Russian government, at Putin’s direction, had interfered in the election to help him and hurt Hillary Clinton. They had reiterated their position in congressional testimony throughout 2017 and well into 2018. Social media companies conducted their own investigations and concurred. Congressional committees, too, had found independently that Russia had assaulted the US election system and manipulated public opinion.

  Although President Trump has denied any collusion with Russia’s election interference and denigrated Mueller’s investigation of it often and forcefully, after publicly (and meekly) siding with Putin in Helsinki, he faced a barrage of charges of treason. Former CIA director John Brennan tweeted that the president’s performance in Helsinki “rises to and exceeds the threshold of ‘high crimes and misdemeanors.’ It was nothing short of treasonous. Not only were Trump’s comments imbecilic, he is wholly in the pocket of Putin.” Others in Washington and around the country echoed Brennan. “OPEN TREASON,” read the New York Daily News headline.

  Helsinki raises two related questions: Does Trump’s capitulation to Putin at Helsinki constitute treason? And does Putin have something on President Trump? When asked at Helsinki whether he had compromising information about President Trump, Putin smiled—one media outlet said “snickered”—but did not deny that he had such information. He said instead that he didn’t even know that Trump was in Moscow when he was there in 2013 for the Miss Universe pageant and asked: “Do you think we try to collect compromising information on each and every” visiting American businessperson?

  Putin’s answer by avoidance—his dangling the possibility that he has compromising information on President Trump—poses a serious question of national security. If Putin has compromising information on President Trump or even if he doesn’t and Trump believes he does, we are faced with the specter of an American president who may be subject to blackmail by a hostile foreign power and/or beholden to that power. In these circumstances, would President Trump compromise US interests to protect himself? Where would his allegiance lie?

  The Constitution and Treason

  Treason is an explosive charge and should not be made lightly. A betrayal of one’s own country, it carries the severest of penalties. In the United States, it is both an impeachable offense and a capital crime. The first impeachable offense listed in the Constitution, it is also the only offense to be defined in it: “Treason against the United States shall consist only in levying War against them or in adhering to their Enemies, giving them Aid and Comfort.”

  Obviously President Trump has not levied war against the United States, but has he satisfied the second prong of the treason test—has he given “aid and comfort to enemies of the United States”?

  Though the Constitution does not define “Enemies,” the term is generally taken to mean “subjects of a foreign power in a state of open hostility with us.” Is Russia an enemy? Russia and the United States are not at war, nor are the two countries in a state of open hostility. On the other hand, isn’t a country that has hacked into and attacked our electoral machinery and manipulated social media fighting a twenty-first-century form of war against the United States? Or does the Constitution lock us into the meaning of enemies or war that existed in an era of muskets? There is no clear answer.

  President Trump recently gave his opinion on the “enemy” issue at Helsinki. In response to a question, he said that Putin was not an adversary, adding: “I called him a competitor and a good competitor he is. I think the word ‘competitor’ is a compliment.” This is a remarkable assessment of the leader of a country that interfered in our 2016 elections—particularly given that Dan Coats, President Trump’s own appointee as director of the Office of National Intelligence, testified that the United States was “under attack” from Russia. The president’s opinion, which is not objective, should be disregarded.

  Even if we solve the problem of whether Russia is an enemy, has President Trump been “adhering” to Russia? There is no definition of adhering in the Constitution, and the most significant definition dates to 1861, when an Ohio district court judge found it “to have no special significance, as the substance is found in the words which follow—giving them aid and comfort.” So that takes us to aid and comfort—what does that entail?

  The case may be clearer here. President Trump appears to have tried to “deliver” for Russia in a number of ways. He tried to cut back on sanctions imposed by President Barack Obama for election interference and refused to enforce them until the first Mueller indictment. He has continually tried to minimize the seriousness of Russia’s interference and even deny its existence, thereby tamping down the likelihood of a much greater enmity to Russia in the public and in Congress. He has stymied implementation of legislation that would require his administration to develop a plan to counter Russia’s malign influence. He has given Putin comfort by his generally positive comments about him and by accepting the “sincerity” of Putin’s denials of interference when he has every reason to know that they are lies. And some of President Trump’s policies—attacking NATO, supporting Brexit, and complimenting the new pro-Russian government in Italy—suggest a disturbing willingness to align himself with Putin. Is this a matter of design or coincidence? Does President Trump’s indifference and opposition to election protection reforms meet one of the standards for aid and comfort set by legal scholar Charles Warren—“[a]cts which tend and are designed to defeat, obstruct, or weaken our own arms?” Again, there is no clear answer.

  On a different, more practical note, it is important to take account of Supreme Court Chief Justice Salmon Chase’s comment on the “odious” nature of treason. He said it poi
nts to a general reluctance to lodge the charge against anyone or find that it has been committed. Congress has enacted legislation that deals with treasonous acts, but uses other words and titles to describe them. Similarly, juries may have a disinclination to convict for it. Treason may be so toxic a term and provoke such a strong emotional response with respect to a presidential impeachment that the underlying acts may be less likely to receive the measured attention they deserve.

  Even though it might be theoretically possible to make a case for impeaching President Trump on the ground of treason—and much more information would be needed before such a determination were reached—it would be far wiser to forgo that option altogether. The Constitution’s treason language, which is based on an English statute dating from 1351 and its encrusted interpretations, makes it very difficult, as we have seen, to apply it to present circumstances.

  And there is no need to resort to a charge of treason to find a basis for impeaching President Trump. The constitutional ground of high crimes and misdemeanors should be sufficient to cover any serious, fact-based claim that the president collaborated, conspired, colluded, or worked with Russia to win the 2016 election. That is what we need to turn our attention to.

  Other Details regarding Collusion/Conspiracy with Russia

  It is important in this regard to consider the large assortment of Trump campaign aides and advisers who had a variety of interactions with the Russian government in connection with the 2016 election. The following review is not meant to be exhaustive, but it points to the possibility of conspiracy or collusion with the Russian government to win the presidency of the United States. If proven, such a conspiracy or such collusion would incontrovertibly be a high crime and misdemeanor, an impeachable offense.

  Even though the acts took place prior to Trump’s taking office, the debates on the Constitution show that fraud or corruption in securing the presidency would be impeachable. In talking about bribing presidential electors, George Mason posed its need in this regard precisely: “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”

  The Trump Tower Meeting, WikiLeaks, and “Russia, If You’re Listening”

  The Trump Tower meeting on June 9, 2016, included President Trump’s son Donald Trump Jr.; his son-in-law, Jared Kushner; his campaign manager, Paul Manafort; and five Russians or Russian-connected individuals, among them a lawyer who later admitted having close ties to a high-level Russian official. Although it was initially claimed that the meeting was about Russian adoptions, exposure of Donald Jr.’s emails revealed its true purpose—receipt from the Russians of “incriminating” information about Hillary Clinton. The meeting request specified that this “is part of Russia and its government’s support for Mr. Trump.” The statement later sent by Donald Jr. to the New York Times and putatively written by Donald Jr. suggested, as we have seen, that the president had no knowledge of the meeting.

  A central question in an investigation of collusion by President Trump is what he knew of the meeting. President Trump claims he knew nothing of it beforehand, but there are some indications he did know something. Three days prior, on June 6, Donald Jr. had a conversation with a Russian connected to the meeting; he then called a blocked number and later that evening called a blocked number again. He called a blocked number again several hours after the June 9 Trump Tower meeting. Though Donald Trump’s former campaign manager said that President Trump had a blocked number, Donald Jr., when asked whether his father had one, incredibly replied: “I don’t know.”

  A second indication came June 7, in a Trump announcement of a “major speech” he would be giving on “probably Monday,” June 13, four days after the scheduled meeting: “[W]e’re going to be discussing all of the things that have taken place with the Clintons. I think you are going to find it very informative and very, very interesting.” While a speech was given, it was not on the expected subject. Was it because the June 9 meeting failed to produce the “incriminating” information that had been promised?

  Although both father and son have repeatedly claimed that nothing resulted from the meeting, in an August 2018 tweet President Trump hedged, as we have seen, and in a statement to the Washington Post claimed that “to the best of my knowledge, nothing happened after the meeting concluded.”

  But something did happen after the meeting. Russia promptly took steps to help the Trump campaign. Within five days of the meeting, WikiLeaks announced it was going to release a trove of anti-Clinton material—and made good on its promise about a month later. That material was extremely harmful and disruptive to Democrats, stirring up strong animosity between the Bernie Sanders and Clinton factions.

  President Trump has since justified the June 9 meeting repeatedly, stating both that anyone in politics would take a meeting like this to get opposition research and that it was legal. Campaigns do not “take meetings” with just anyone offering opposition research on their opponents, particularly not a foreign government, and generally do not involve the highest-level campaign people when they do. Meetings offering dirt on candidates can easily backfire, as has happened with the Trump Tower meeting. Furthermore, President Trump’s claim of legality is incorrect. Federal campaign finance law prohibits both solicitation and acceptance of campaign contributions or things of value from foreigners. “Incriminating” information on Clinton could have been something of value. Thus, if President Trump knew the purpose of the meeting beforehand and gave the go-ahead, or later approved it, he may well have violated federal law, with regard to both campaign finance and collusion.

  One further false statement is worth noting. Four months before news of the June 9 meeting broke in 2017, Trump Jr. denied participating in any meetings with Russians related to the campaign. He later had to retract that falsehood.

  A second example of possible collusion is Donald Trump’s July 27, 2016, press conference statement: “Russia, if you’re listening, I hope you’re able to find the 30,000 [Hillary Clinton] emails that are missing. … I think you will probably be rewarded mightily by our press.” Afterward, on that very day, Hillary Clinton’s campaign and personal office were subjected to a hacking attempt, the latter for the first time. Trump was publicly calling for illegal activity by a foreign government against his opponent, a former two-term senator and secretary of state. His later walk-back was ludicrous—he claimed he meant that the found emails should be turned over by Russia to the FBI. It is preposterous to think that he wanted Russia to commit computer-tampering crimes and then cooperate with the FBI. Was Russia’s hacking in response to Trump’s urging, or was it a coincidence?

  Candidate Trump also repeatedly saluted WikiLeaks for releasing the Podesta emails, thus likely encouraging and supporting criminal activity by a foreign government and its apparent agent. WikiLeaks, which “the American intelligence community believes was chosen by the Russian government to disseminate the information it had hacked,” according to the Atlantic, continued to release the Podesta information. Was that due to Trump’s encouragement, or was it a coincidence?

  The release of the Access Hollywood tape that records President Trump bragging about sexually assaulting women again raises a question of collusion. It threatened to bury the Trump campaign. An hour after the public began hearing the tape, WikiLeaks initiated a slow-motion release over several weeks of the John Podesta emails, diverting attention from what would otherwise have been an overwhelmingly negative story for Trump. Was this a result of savvy political instincts on the part of Russian military intelligence or WikiLeaks, was it a coincidence, or was it a result of coordination with the Trump campaign?

  If Russia’s actions were taken in response to requests from or in coordination with Trump or his campaign, a matter that would have to be established, then the possibility of a high crime or misdemeanor looms large.

  Connections Between Top Campaign Aides and Advisers and Russia

  Roger S
tone, a self-confessed “dirty trickster” who began his career in President Nixon’s 1972 reelection campaign and later partnered with Paul Manafort in a lobbying firm, had been advising Donald Trump to run for president since 1988 and was his top adviser during the first Republican presidential debates. He was dismissed in August 2015 but reportedly continued to be in communication with the candidate.

  Stone had a number of extremely problematic contacts during the campaign with Guccifer 2.0, the pseudonym, as we have seen, for one or more of Russia’s military intelligence officers. On August 8, 2016, at a speech in Florida, Stone answered a question about whether Julian Assange would produce an October Surprise to affect the election: “I actually have communicated with Assange. I believe the next tranche of his documents pertain to the Clinton Foundation, but there’s no telling what the October Surprise may be.” Guccifer 2.0, as we have seen, delivered the hacked DNC emails to WikiLeaks. Did Stone keep candidate Trump advised of his interactions with Guccifer and Assange?

  Three days before that speech, a Stone essay on Breitbart.com claimed Guccifer 2.0 as the lone hacker responsible for the DNC hack, not the Russians. When Twitter suspended Guccifer 2.0’s account for releasing personal information about Democrats in the House of Representatives, Stone called Twitter’s action “outrageous.” He declared Guccifer 2.0 a “HERO” in a tweet and later applauded Twitter’s restoration of Guccifer 2.0’s account: “Thank you Sweet Jesus. I’ve prayed for it.” Guccifer 2.0 responded to Stone, saying, “thanks that u believe in the real #Guccifer2.”

  Then Guccifer 2.0 showed gratitude by promoting a link to Roger Stone’s article about how the election might be rigged against Donald Trump. Guccifer 2.0 explained the action as “paying u back.” Stone and Guccifer 2.0, respectively a Trump adviser and Russian military intelligence officer(s), were helping and praising each other, communicating at some point directly through Twitter’s Direct Messages portal (although it is not clear that all the messages have been made public). Guccifer 2.0 at one point tweeted Stone: “I’m pleased to say that u r a great man. … please tell me if I can help u anyhow. It would be a great pleasure to me.”