According to a statement released by Dr. Colleen Kraft, president of the American Academy of Pediatrics, which strongly opposed the child separation policy: “In fact, highly stressful experiences, like family separation, can cause irreparable harm, disrupting a child’s brain architecture and affecting his or her health. This type of prolonged exposure to serious stress—known as toxic stress—can carry lifelong consequences for children.” The statement is used as supporting evidence in a federal class-action lawsuit filed September 5, 2018, against the administration, seeking monetary damage for trauma inflicted. More harm was described by Dr. Kraft, who visited a detention facility for children. There she saw a girl, less than two years old, who was screaming; because shelter workers had been prohibited from touching or holding the child, the child could not be comforted.
Separating children from parents is a lawless policy. There is nothing in US immigration law that authorizes taking children from parents as a penalty for violation of immigration laws. In imposing such a penalty, therefore, President Trump abuses the power of his office in a most serious way. Taking children from parents (when done not to protect the child) is not just “horrible,” as he himself has said. It is cruel, depraved, merciless. Yet, without lawful authority, the president has directed and approved what amounts to the kidnapping and torture of thousands of children. No concern for family reunification was apparent at any stage in the policy’s implementation. The children and parents targeted, probably because of their Latin American origin, were not even viewed as human.
Furthermore, it appears that one of President Trump’s motives in creating this “horrible” program was to force the Democrats to accept his immigration policies, including building his wall. He all but admitted this on June 16, 2018: “Democrats can fix their forced family breakup at the Border by working with Republicans on new legislation.” A lawsuit filed by the state attorneys general against the administration decried this approach: “[F]amilies are intentionally being traumatized for political gain.” The separation of children from parents for political gain is a great and dangerous offense.
There are other serious constitutional issues involved in the policy. Significantly, it was put into effect only on the Southwest border, where most border crossers are Hispanic. President Trump’s hostility to Hispanics is well known. He characterized Mexicans as “rapists” during his campaign, called El Salvador a “shithole country,” and in May 2018 said of undocumented immigrants from Central America and Mexico: “You wouldn’t believe how bad these people are. These aren’t people. These are animals.” Imposing a program of separating children from parents on a racial or ethnic basis is an abuse of power, and it also violates the constitutional rights of the children and parents to equal protection of the law. Absent evidence that being together is harmful, it is also a violation of due process to separate children and parents without a court hearing of any kind.
President Trump’s indifference to basic legal norms and his willingness to abandon due process are deeply rooted. On June 21 and 24, 2018, the president proposed that immigrants who cross the border be sent back without an opportunity for court appearance. “When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came,” he tweeted on June 25.
A president who so deliberately, cruelly, and casually inflicted serious mental and psychological harm on thousands, manifestly on an ethnic basis, as a deterrent to others and as a political tool to get legislation passed without regard to the rights of the children and parents, has subverted the Constitution. He poses a direct and immediate threat to the rule of law. Watergate set the precedent for concluding that these acts could form grounds for impeachment.
President Nixon was charged with high crimes and misdemeanors because his acts were an egregious abuse of power and violated the constitutional rights of Americans. Two specific examples of this are the illegal break-in into Daniel Ellsberg’s psychiatrist’s office and the illegal wiretapping of journalists and White House staffers. The lawless policy of separating children at the border had thousands more victims and inflicted much more serious and possibly long-lasting mental harm on them. Because the policy is also subversive of the Constitution and is as serious an assault on constitutional rights as President Nixon committed, it may well be a high crime and misdemeanor and may form the basis of an article of impeachment against President Trump.
Campaign Finance Law Violations
Donald Trump and former Playboy model Karen McDougal allegedly had an affair in 2006 and 2007. McDougal was interested in publishing a story about that affair prior to the 2106 presidential election. In the summer of 2016, as a result of the efforts of Trump’s personal lawyer and fixer Michael Cohen, American Media, Inc. (AMI), the parent company of the National Enquirer, paid $150,000 to McDougal for rights to her story. AMI had no intention of publishing the story. Its object—and Michael Cohen’s—was to bury the story and make sure it never saw the light of day.
Donald Trump and Stephanie Clifford, better known by her adult film name Stormy Daniels, allegedly had an affair in 2006, four months after Trump’s wife Melania gave birth to their son. Shortly before the presidential election in November 2016, Daniels was paid $130,000 in hush money not to reveal the alleged Trump affair. Cohen was the intermediary. Trump later admitted reimbursing Cohen for the Daniels payment.
In January 2018, the Wall Street Journal broke the details of the Daniels payment, with a quote from Cohen that President-elect Trump “vehemently denies any such occurrence.” Less than two weeks later, a watchdog group filed a complaint with the Federal Election Commission and DOJ asking them to “determine whether the payment was made by the Trump Organization or some other corporation or individual, which would [make] it an illegal in-kind contribution to the campaign.” Corporations, under federal law, are not permitted to donate to candidates, and individual contributions, except by candidates to themselves, are capped at $2,700 for a general election.
On August 21, 2018, Cohen pleaded guilty in federal court to tax evasion and bank fraud. Most explosive were two counts involved violating campaign finance law. Cohen pleaded guilty to making an illegal, excessive campaign contribution to Daniels and to causing an unlawful corporate contribution during the 2016 election by helping AMI in connection with buying the McDougal story.
In court, Cohen described the two instances of election-law violations. In essence, he claimed that Trump had directed his actions to buy silence from McDougal and Daniels. With regard to McDougal, he admitted that “in coordination with, and at the direction of, a candidate for federal office [Donald Trump] I and the CEO of a media company [AMI] at the request of the candidate worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information.” The media company entered “into a contract with the individual under which she received compensation of $150,000.”
With respect to Daniels, he admitted that a shell company he had created two weeks earlier made the $130,000 payment “in coordination with and at the direction of [Donald Trump]. … The information would be harmful to the candidate and to the campaign” and the payment was made “to keep the individual from disclosing the information.” The actions were undertaken, Cohen’s plea specified, “for the principal purpose of influencing the election.”
Are These Impeachable Offenses?
The issue is whether candidate Trump’s actions amount to high crimes or misdemeanors. More information would be needed to make that determination. Do we know, for example, what candidate Trump’s motives were—to affect the election by concealing harmful information, or to protect his wife and his family from hurtful information? Does it matter if he had a mixed motive?
President Trump also denies that he directed Cohen’s actions, though Cohen’s claim that he did was made to a judge under penalty of perjury. Even if we assume that the alleged affairs happened, that candidate Trump knew all th
e facts beforehand, and that he directed Cohen to pay hush money and to coordinate with AMI, does this justify impeachment?
The payment of hush money has superficial resemblances to Watergate. There, Nixon used his personal lawyer, Herbert Kalmbach, to pay hush money to the Watergate burglars to ensure their silence before the election. The hush money was critical to President Nixon’s reelection, and President Nixon knew it would be—and the payment of hush money was one of the grounds for Nixon’s impeachment. Kalmbach was convicted of a crime in connection with the payoffs.
There is no question that Trump’s conduct is slimy and sleazy and may involve a possible criminal violation of election laws. As we know from Watergate, however, not every criminal violation of the law by a president is a high crime or misdemeanor—and even those that are do not necessarily warrant impeachment. Nixon’s tax issues, with the possibility of tax fraud, are good examples. The House Judiciary Committee did not vote for impeachment on that ground.
The seriousness of President Trump’s behavior relates to his effort to conceal his adulterous behavior from the American people right before an election. The campaign law violations kept the hush-money payments and Trump’s role in them secret. Trump also apparently has lied to the public about his involvement with these women in order to advance his candidacy.
At the present moment, it does not appear that the hush-money payments themselves are egregious enough or pose a sufficiently grave danger to the rule of law to warrant impeachment.
Unlike in Watergate, the hush payments here were not made to cover up a crime—a critical distinction, although crimes were committed in connection with making the payments. As with Watergate, however, the cover-up may have had a determinative effect on Trump’s election to the presidency. An impeachment inquiry may want to examine this in greater depth, particularly since some individuals related to the matter are being questioned by prosecutors, and more and different information damaging to the president or exonerative of him may emerge.
Conclusion
Donald Trump is a clear and present danger to our democracy. I have shown evidence of how he appears to have assaulted the rule of law in deep and serious ways. Whether it is his effort to impede and obstruct the investigations into Russian interference, his refusal to protect our election system from Russian manipulation, his open hand to payments his businesses receive from foreign governments and domestically, or his assault on the rights of thousands of children at the border, the president’s misdeeds cast a wide net. They are ongoing, with no end in sight. And he continues to spin a web of incessant and brazen falsehoods, deceptions, and lies to disguise and conceal the misdeeds.
In 1973, the country also faced a president run amok. Richard Nixon, whose campaign minions broke into the Watergate complex, orchestrated a vast, multipronged effort to stymie investigations into the burglary. Nixon engaged in other nefarious activities and abuses of power: he violated the rights of Americans though illegal wiretaps of journalists, an illegal break-in into a psychiatrist’s office for damaging information, an order for IRS audits of political opponents—the Enemies List—to name a few.
Nixon’s cover-up was effective: it got him reelected with one of the largest electoral margins in American history. Then, it began to unravel. Evidence harmful to him came to light, and, in a grandiose move of maximum presidential authority, he ordered the special prosecutor investigating him to be fired. That’s where the American people drew the line. They demanded that Congress take action, and it did. It started an inquiry, which resulted in a bipartisan vote for articles of impeachment, forcing Nixon to resign.
It was in response to obstruction that the articles of impeachment against Nixon were adopted. Their message? Presidents cannot block, tamper with, and destroy the machinery of justice that is aimed at them. If they do, it is at their peril. They face impeachment, removal from office, even imprisonment. But if we allow presidents to block, tamper with, and destroy the machinery of justice that is aimed at them, we do so at our peril. The rule of law will go up in smoke. We will enshrine two standards of justice, one for the powerful and one for everyone else. We will find ourselves on the road to tyranny.
It is a road that we’re dangerously close to traveling today.
Nixon worked mightily to stop the institutions of justice from closing in on him and his associates. So has President Trump. Not every aspect of Nixon’s impeachable offenses is replicated in President Trump’s behavior. Still, there are astonishing and troublesome parallels, particularly in the Russia investigation, including Trump’s firing the FBI director (Nixon had the special Watergate prosecutor fired); dangling pardon possibilities to those under investigation (Nixon did the same); making relentless and false attacks on the investigation and those conducting it (Nixon called for an end to the investigations and engaged in other attacks); and deceiving the public and Congress constantly and systematically (Nixon did that, too).
Watergate started with burglars who used burglars’ tools to break into the Democratic National Committee headquarters at the Watergate Hotel complex in Washington, DC. They were interfering in the 1972 presidential election. The investigation of Donald Trump started with the Russians’ using cyber tools to break into the DNC computer servers and interfere in the 2016 presidential election. We don’t know what the Watergate burglars were looking for. We don’t know what the Russians’ real objective was, or even the full impact of their interference. It may even have vaulted Donald Trump into the White House.
But we do know that Trump called for Russian help in winning the election. And we know that Russia gave him help.
Was the help coordinated with the Trump campaign or just coincidental? If coordinated, then Trump has committed a high crime and misdemeanor of the gravest kind—working with an unfriendly foreign power in violation of our campaign finance and other laws to get elected. It is imperative for Congress to ascertain the facts, and not leave us to speculate or with a secretly beholden president.
Trump’s effort to block the investigation into his possible collusion with the Russians over the 2016 election on the face of it warrants an impeachment inquiry. It may well be that a full examination of his behavior will exonerate him, but, given the record of his tweets and his public statements, not to mention his firing of FBI director James Comey, it is more likely that his actions have been prompted by the impermissible and impeachable objective of stopping the investigations before they find him out.
President Trump’s misconduct does not stop with his repeated attempts to impede the Russia investigations. He has steadfastly refused to protect our election system from further Russian attack, failing to fulfill his central obligation as president to take care that the laws be faithfully executed. This failure too is related to his effort to impede the Russia investigation. If the American people, including his “base,” fully understood the seriousness and scope of the Russian attacks, they would demand effective measures from the president to stop them, but they also might question why President Trump is calling the investigation a hoax when the Russians really attacked us, as our intelligence agencies, the Justice Department, and private social media companies have found.
The president has also defied and flouted the Constitution’s ban on emoluments on a very large scale, creating the appearance if not the reality of influence peddling at the highest level of our government. This is another assault on our democracy.
Finally, President Trump’s lawless and heartless separation of thousands of children from parents on the Southwest border is an action that violates our Constitution’s deepest promises of due process and equal protection. The willingness to assault the Constitution by harming so many threatens all of us.
President Trump’s misconduct continues and expands. He has relentlessly attacked the press, undermining public confidence in it and charging that it is an enemy of the people, despite its central importance to our democracy, which is enshrined in the first amendment to the Constitution. He has divi
ded the country, attacking women’s rights and the rights of African Americans and Hispanics, not to mention the rights of immigrants/refugees and others entering the United States, and fostered bigotry by mimicking a victim of sexual assault, calling for the firing of NFL players who have kneeled to protest the shooting of black young men in America, and equating neo-Nazis with civil rights activists. Not any of these acts is impeachable, but they illuminate a presidency without respect for diversity—whether of opinion, race, ethnicity, or gender.
Together, President Trump’s actions are indicative of a president who has established a different standard of justice for himself—exactly the kind that we declared impermissible in Nixon’s articles of impeachment. He has done so at the expense of democracy. And he’s done so at his own peril.
There is a remedy—and I participated in it and lived through it and saw it work. The solution is what Congress, the courts, and the press used in dealing with President Nixon in Watergate. It means imposing accountability and holding the president to the rule of law, as we did then.
In Watergate, there was a criminal investigation and there were congressional inquiries, including an impeachment process. All were thorough and fair; all won the respect of the public. And together they reestablished the public’s faith in the viability of our democracy and the Constitution.
No one, not even a president, is above the law. That is the lesson of Watergate, and it must continue to be the lesson today.
Now we face the same pivotal moment. If we tolerate a president who wants to smash the criminal justice system that is trying to hold him accountable and part ways with other legal norms, we are well on the path to seeing the precious, fragile constitutional system that was passed on to us pass through our fingers. We dare not let that happen.
The Case for Impeaching Trump Page 16
