Impeachment- a Citizen's Guide

by Cass R Sunstein

  Also on June 13, 2017, the President ‘s personal counsel contacted the Special Counsel’s Office and raised concerns about possible conflicts. The President’s counsel cited Mueller ‘s previous partnership in his law firm, his interview for the FBI Director position, and an asserted personal relationship he had with Comey. That same day, Rosenstein had testified publicly before Congress and said he saw no evidence of good cause to terminate the Special Counsel, including for conflicts of interest. Two days later, on June 15, 2017, the Special Counsel’s Office informed the Acting Attorney General’s office about the areas of concern raised by the President’s counsel and told the President’s counsel that their concerns had been communicated to Rosenstein so that the Department of Justice could take any appropriate action.

  3. The Press Reports that the President is Being Investigated for Obstruction of Justice and the President Directs the White House Counsel to Have the Special Counsel Removed

  On the evening of June 14, 2017, the Washington Post published an article stating that the Special Counsel was investigating whether the President had attempted to obstruct justice. This was the first public report that the President himself was under investigation by the Special Counsel’s Office, and cable news networks quickly picked up on the report. The Post story stated that the Special Counsel was interviewing intelligence community leaders, including Coats and Rogers, about what the President had asked them to do in response to Comey’s March 20, 2017, testimony; that the inquiry into obstruction marked “a major turning point” in the investigation; and that while “Trump had received private assurances from then-FBI Director James B. Comey starting in January that he was not personally under investigation,” “[o]fficials say that changed shortly after Comey’s firing.” That evening, at approximately 10:31 p.m., the President called McGahn on McGahn’s personal cell phone and they spoke for about 15 minutes. McGahn did not have a clear memory of the call but thought they might have discussed the stories reporting that the President was under investigation.

  Beginning early the next day, June 15, 2017, the President issued a series of tweets acknowledging the existence of the obstruction investigation and criticizing it. He wrote: “They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice”; “You are witnessing the single greatest WITCH HUNT in American political history—led by some very bad and conflicted people!”; and “Crooked H destroyed phones w/ hammer, ‘bleached’ emails, & had husband meet w/AG days before she was cleared—& they talk about obstruction?” The next day, June 16, 2017, the President wrote additional tweets criticizing the investigation: “After 7 months of investigations & committee hearings about my ‘collusion with the Russians,’ nobody has been able to show any proof. Sad!”; and “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director! Witch Hunt.”

  On Saturday, June 17, 2017, the President called McGahn and directed him to have the Special Counsel removed. McGahn was at home and the President was at Camp David. In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.

  On the first call, McGahn recalled that the President said something like, “You gotta do this. You gotta call Rod.” McGahn said he told the President that he would see what he could do. McGahn was perturbed by the call and did not intend to act on the request. He and other advisors believed the asserted conflicts were “silly” and “not real,” and they had previously communicated that view to the President. McGahn also had made clear to the President that the White House Counsel’s Office should not be involved in any effort to press the issue of conflicts. McGahn was concerned about having any role in asking the Acting Attorney General to fire the Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge Robert Bork and not “Saturday Night Massacre Bork.” McGahn considered the President’s request to be an inflection point and he wanted to hit the brakes.

  When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” McGahn recalled the President telling him “Mueller has to go” and “Call me back when you do it.” McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein. To end the conversation with the President, McGahn left the President with the impression that McGahn would call Rosenstein. McGahn recalled that he had already said no to the President’s request and he was worn down, so he just wanted to get off the phone.

  McGahn recalled feeling trapped because he did not plan to follow the President’s directive but did not know what he would say the next time the President called. McGahn decided he had to resign. He called his personal lawyer and then called his chief of staff, Annie Donaldson, to inform her of his decision. He then drove to the office to pack his belongings and submit his resignation letter. Donaldson recalled that McGahn told her the President had called and demanded he contact the Department of Justice and that the President wanted him to do something that McGahn did not want to do. McGahn told Donaldson that the President had called at least twice and in one of the calls asked “have you done it?” McGahn did not tell Donaldson the specifics of the President’s request because he was consciously trying not to involve her in the investigation, but Donaldson inferred that the President’s directive was related to the Russia investigation. Donaldson prepared to resign along with McGahn.

  That evening, McGahn called both Priebus and Bannon and told them that he intended to resign. McGahn recalled that, after speaking with his attorney and given the nature of the President’s request, he decided not to share details of the President’s request with other White House staff. Priebus recalled that McGahn said that the President had asked him to “do crazy shit,” but he thought McGahn did not tell him the specifics of the President’s request because McGahn was trying to protect Priebus from what he did not need to know. Priebus and Bannon both urged McGahn not to quit, and McGahn ultimately returned to work that Monday and remained in his position. He had not told the President directly that he planned to resign, and when they next saw each other the President did not ask McGahn whether he had followed through with calling Rosenstein.

  Around the same time, Chris Christie recalled a telephone call with the President in which the President asked what Christie thought about the President firing the Special Counsel. Christie advised against doing so because there was no substantive basis for the President to fire the Special Counsel, and because the President would lose support from Republicans in Congress if he did so.

  Analysis

  In analyzing the President’s direction to McGahn to have the Special Counsel removed, the following evidence is relevant to the elements of obstruction of justice:

  a. Obstructive act. As with the President’s firing of Comey, the attempt to remove the Special Counsel would qualify as an obstructive act if it would naturally obstruct the investigation and any grand jury proceedings that might flow from the inquiry. Even if the removal of the lead prosecutor would not prevent the investigation from continuing under a new appointee, a factfinder would need to consider whether the act had the potential to delay further action in the investigation, chill the actions of any replacement Special Counsel, or otherwise impede the investigation.

  A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice’s attention.
See Volume II, Section II.I, infra. Some of the President’s specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.

  First, McGahn’s clear recollection was that the President directed him to tell Rosenstein not only that conflicts existed but also that “Mueller has to go.” McGahn is a credible witness with no motive to lie or exaggerate given the position he held in the White House. McGahn spoke with the President twice and understood the directive the same way both times, making it unlikely that he misheard or misinterpreted the President’s request. In response to that request, McGahn decided to quit because he did not want to participate in events that he described as akin to the Saturday Night Massacre. He called his lawyer, drove to the White House, packed up his office, prepared to submit a resignation letter with his chief of staff, told Priebus that the President had asked him to “do crazy shit,” and informed Priebus and Bannon that he was leaving. Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice.

  Second, in the days before the calls to McGahn, the President, through his counsel, had already brought the asserted conflicts to the attention of the Department of Justice. Accordingly, the President had no reason to have McGahn call Rosenstein that weekend to raise conflicts issues that already had been raised.

  Third, the President’s sense of urgency and repeated requests to McGahn to take immediate action on a weekend—“You gotta do this. You gotta call Rod.”—support McGahn’s recollection that the President wanted the Department of Justice to take action to remove the Special Counsel. Had the President instead sought only to have the Department of Justice re-examine asserted conflicts to evaluate whether they posed an ethical bar, it would have been unnecessary to set the process in motion on a Saturday and to make repeated calls to McGahn.

  Finally, the President had discussed “knocking out Mueller” and raised conflicts of interest in a May 23, 2017, call with McGahn, reflecting that the President connected the conflicts to a plan to remove the Special Counsel. And in the days leading up to June 17, 2017, the President made clear to Priebus and Bannon, who then told Ruddy, that the President was considering terminating the Special Counsel. Also during this time period, the President reached out to Christie to get his thoughts on firing the Special Counsel. This evidence shows that the President was not just seeking an examination of whether conflicts existed but instead was looking to use asserted conflicts as a way to terminate the Special Counsel.

  b. Nexus to an official proceeding. To satisfy the proceeding requirement, it would be necessary to establish a nexus between the President’s act of seeking to terminate the Special Counsel and a pending or foreseeable grand jury proceeding.

  Substantial evidence indicates that by June 17, 2017, the President knew his conduct was under investigation by a federal prosecutor who could present any evidence of federal crimes to a grand jury. On May 23, 2017, McGahn explicitly warned the President that his “biggest exposure” was not his act of firing Comey but his “other contacts” and “calls,” and his “ask re: Flynn.” By early June, it was widely reported in the media that federal prosecutors had issued grand jury subpoenas in the Flynn inquiry and that the Special Counsel had taken over the Flynn investigation. On June 9, 2017, the Special Counsel’s Office informed the White House that investigators would be interviewing intelligence agency officials who allegedly had been asked by the President to push back against the Russia investigation. On June 14, 2017, news outlets began reporting that the President was himself being investigated for obstruction of justice. Based on widespread reporting, the President knew that such an investigation could include his request for Comey’s loyalty; his request that Comey “let[] Flynn go”; his outreach to Coats and Rogers; and his termination of Comey and statement to the Russian Foreign Minister that the termination had relieved “great pressure” related to Russia. And on June 16, 2017, the day before he directed McGahn to have the Special Counsel removed, the President publicly acknowledged that his conduct was under investigation by a federal prosecutor, tweeting, “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!”

  c. Intent. Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct—and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

  Before the President terminated Comey, the President considered it critically important that he was not under investigation and that the public not erroneously think he was being investigated. As described in Volume II, Section II.D, supra, advisors perceived the President, while he was drafting the Comey termination letter, to be concerned more than anything else about getting out that he was not personally under investigation. When the President learned of the appointment of the Special Counsel on May 17, 2017, he expressed further concern about the investigation, saying “[t]his is the end of my Presidency.” The President also faulted Sessions for recusing, saying “you were supposed to protect me.”

  On June 14, 20 I 7, when the Washington Post reported that the Special Counsel was investigating the President for obstruction of justice, the President was facing what he had wanted to avoid: a criminal investigation into his own conduct that was the subject of widespread media attention. The evidence indicates that news of the obstruction investigation prompted the President to call McGahn and seek to have the Special Counsel removed. By mid-June, the Department of Justice had already cleared the Special Counsel’s service and the President’s advisors had told him that the claimed conflicts of interest were “silly” and did not provide a basis to remove the Special Counsel. On June 13, 2017, the Acting Attorney General testified before Congress that no good cause for removing the Special Counsel existed, and the President dictated a press statement to Sanders saying he had no intention of firing the Special Counsel. But the next day, the media reported that the President was under investigation for obstruction of justice and the Special Counsel was interviewing witnesses about events related to possible obstruction—spurring the President to write critical tweets about the Special Counsel’s investigation. The President called McGahn at home that night and then called him on Saturday from Camp David. The evidence accordingly indicates that news that an obstruction investigation had been opened is what led the President to call McGahn to have the Special Counsel terminated.

  There also is evidence that the President knew that he should not have made those calls to McGahn. The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office—and McGahn himself—could not be involved in pressing conflicts claims and that the President should consult with his personal counsel if he wished to raise conflicts. Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President’s actions, he denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story, as discussed in Volume II, Section II.I, infra. Those denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.

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  BIBLIOGRAPHICAL NOTE

  The literature on impeachment is voluminous. An indispensable start is Raoul Berger, Impeachment: The Constitutional Problems (1974). Berger emphasizes the English antecedents, and he provides a treasure trove. A superb, detailed, and quietly inspiring counterpoint, stressing the homegrown nature of American traditions, is Peter Charles Hoffer and N. E. H. Hull, Impeachment in America, 1635–1805 (1984). Michael Gerhard
t, The Federal Impeachment Process: A Constitutional and Historical Analysis (1996), is profoundly illuminating, as is Charles Black, Impeachment: A Handbook (1970). Black’s short, terrific, vivid book is the closest to this one; it is more focused on mechanics and institutional prerequisites, and less on the constitutional backdrop.

  On the American Revolution, Gordon Wood, The Radicalism of the American Revolution (1991), is fiery, and though it says nothing about impeachment, it illuminates the impeachment question. On the Constitution itself, I have been particularly influenced by Gordon Wood, The Creation of the American Republic, 1776–1787 (1969), Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1997), and Michael J. Klarman, The Framers’ Coup (2016). On constitutional interpretation, a good introduction can be had by reading Antonin Scalia, A Matter of Interpretation (1998), Ronald Dworkin, Freedom’s Law (1997), and Stephen Breyer, Active Liberty (2006).

  ACKNOWLEDGMENTS

  This book is a love letter to the United States of America, and for that reason, it was a joy to write. It is also a joy to thank those who helped.

  Even though she is British, Sarah Chalfant, my agent, was kind enough to think that there was a book here, well before I did. Thomas LeBien, my editor at Harvard University Press and a true friend and patriot, provided terrific guidance. His support, wisdom, and generosity were invaluable. Julia Kirby did a superb and stunningly careful copyedit.

  Richard Fallon, John Goldberg, Martha Minow, John Manning, and Daphna Renan generously read the entire manuscript and provided terrific comments. Special, amazed thanks to Michael Klarman, a leading historian of the founding period, for an exceedingly careful reading at the final stage, which saved me from (gulp) dozens of errors. Madeleine Joseph, a partner throughout, provided wonderful research assistance at multiple stages, and valuable comments as well. Shams Haidari did helpful research on the Twenty-Fifth Amendment. My assistant, Ashley Nahlen, provided truly superb support, including helpful research on impeachment issues.