The Unmaking of the President 2016

by Lanny J. Davis

  These are presidential lies, to be sure, but lies that are not harmful to the American people and interest—indeed, to the contrary, their purpose is to advance the nation’s interest. Thus, they are not “material” to the issue of impeachment. And certainly, these lies were not motivated by a desire to protect the president from criminal investigation or culpability.

  Even if a lie is intentional and self-serving, that does not make it impeachable. It must, as the precedents and historical and legal analyses prove, constitute a danger to the state and to the public and to the nation. Lying about and refusing to acknowledge the undeniable truth that Russia, led by its autocratic president, Vladimir Putin, engaged in a systematic campaign to interfere in the election of a president of the United States is a serious material lie. The evidence is substantial that this is what President Donald Trump did repeatedly after his inauguration.

  Undermining Faith in the Constitution—First Amendment Freedoms

  The First Amendment to the Constitution states that “Congress shall make no law . . . abridging the freedom . . . of the press. . . .”

  Thomas Jefferson considered the First Amendment’s protection of the freedom of the press one of the most fundamental protections of the American democracy, and he said so repeatedly. For example, he famously wrote, “The basis of our governments being the opinion of the people, the very first object should be to keep that right; and were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter. But I should mean that every man should receive those papers and be capable of reading them. . . .”22

  And James Madison, the author of the First Amendment, emphasized that even more important is to protect unfettered freedom of the press even when—especially when—it is wrong, even “abusive”: “Some degree of abuse is inseparable from the proper use of every thing, and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits.”23

  So there can be no doubt that press freedoms are fundamental to our society and our system of government. Of course, that does not mean the media is not subject to criticism. A good part of the early chapters of this book criticize press coverage of the Hillary Clinton emails issue. (And it should be noted that freedom of the press includes the freedom of one part of the press to criticize others, such as in the instance of this book.) But there is a difference between criticizing the media, which is fair game and which every president of the United States has done, and calling the press the “enemy of the American people.” A huge difference.

  Such an expression by a president of the United States demonizes the media generally and, thus, uses the immense power of the presidency to undermine the freedom of the press that Jefferson, Madison, and so many others considered crucial to our nation. A president using his bully pulpit not only to depict the media as the “enemy” but also, as we have seen, enabling if not encouraging his supporters to take violence against reporters is against the law (in some cases a felony). Conceivably, his inflammatory depiction of the free press as the “enemy” constitutes an abuse of presidential power that should be the basis of an impeachment investigation.

  If it is unfair to attribute the excesses of Trump’s supporters to him, then at the very least we should acknowledge that Trump has done little to discourage such violence and denounce it. To the contrary. On July 2, 2017, Trump posted a tweet that portrayed himself, albeit in an altered WWE video clip, in a violent take-down of a wrestler with the label “CNN” on his head.

  As reported by the Washington Post:

  A day after defending his use of social media as befitting a “modern day” president, President Trump appeared to promote violence against CNN in a tweet.

  Trump, who is on vacation at his Bedminster golf resort, posted on Twitter an old video clip of him performing in a WWE professional wrestling match, but with a CNN logo superimposed on the head of his opponent. In the clip, Trump is shown slamming the CNN avatar to the ground and pounding him with simulated punches and elbows to the head. Trump added the hashtags #FraudNewsCNN and #FNN, for “fraud news network.”

  The video clip apparently had been posted days earlier on Reddit, a popular social media message board. The president’s tweet was the latest escalation in his beef with CNN over its coverage of him and his administration. . . .

  In a statement tweeted out by CNN media reporter Brian Stelter, CNN called it “a sad day when the President of the United States encourages violence against reporters.” The network cited Trump’s “juvenile behavior far below the dignity of his office. We will keep doing our jobs. He should start doing his.”24

  In sum: It cannot be an impeachable offense for Trump to be very critical, and outspokenly so, of the media. But at the least, a full compilation of all of President Trump’s words and actions suggesting not just criticism but such generalized hostility and demonization of a free press is necessary to determine whether an impeachable offense has occurred.

  Betrayal of Trust to the United States in Favor of Russia

  As indicated, James Madison stated at the 1787 Constitutional Convention that an impeachable offense would occur if the president were to “betray his trust to foreign powers.”

  This standard means that any president who refuses to publicly repudiate a foreign power that has engaged in hostile acts against America and publicly disparages the unanimous findings of the U.S. Intelligence Community about those hostile acts would presumptively appear to be betraying the trust he owes to America and favoring a foreign power that has interfered in the democratic process of our country. If proved, this would seem to be an impeachable offense.§

  Several instances of President Trump’s words and conduct suggest such a betrayal of trust. One example is his failure to act after Deputy Attorney General Sally Yates twice visited the White House counsel at the end of January 2017 to warn him and, thus, to warn the president, that Michael Flynn was “compromised” with the Russians by his lies to Vice President Mike Pence and “underlying conduct” (which she would not define during her public hearings before the Senate Intelligence Committee). President Trump has never explained why, given that knowledge, he kept Flynn on as his national security adviser for another eighteen days and allowed him to be briefed on the most sensitive intelligence information that the president receives and to attend meetings involving such information.25

  Further, Trump did not hesitate to repudiate the heads of the Intelligence Community on Russian leaders. A former senior government official and national security expert told me that he was “surprised and disappointed” to hear Trump deny that the Russians meddled and to label the report a “hoax.” The official was offended when Trump criticized the Intel Community for allowing this “fake news” to leak out, and asked, “Are we living in Nazi Germany?”

  For this reason it is worth exploring what President Trump did and was willing to say when he invited top Russian officials, including a reported top Russian spy in Washington, to the Oval Office on May 10, 2017. Trump’s statements and conduct that day occurred during a meeting with Sergey V. Lavrov, the Russian foreign minister, and Sergey I. Kislyak, Moscow’s ambassador to the United States, said to be one of Russia’s top spies.

  A shocking aspect of that meeting, which suggests a Madisonian betrayal of trust and a pro-Russia bias, is that Trump barred the U.S. media while allowing Russian media, including photographers, to attend with no Secret Service or FBI monitoring or restrictions. Nor, apparently, were there any precautions to prevent the planting of bugs while Trump or his aides weren’t watching. (American photographers were allowed for only a few minutes at the end of the meeting.)

  According to the New York Times, “Colin H. Kahl, the former national security adviser to Vice Pres
ident Joseph R. Biden Jr., took to Twitter to pose what he called a ‘deadly serious’ question: ‘Was it a good idea to let a Russian gov photographer & all their equipment into the Oval Office?’ David S. Cohen, the former deputy director of the C.I.A. during the Obama administration, responded: ‘No, it was not.’ ”26

  The meeting took place on May 10, the day after Trump fired James Comey because of the “Russia thing.” Yet the president was willing to tell the top Russian officials that firing the FBI director, had relieved “great pressure” on him, according to a document summarizing the meeting.

  President Trump also revealed highly classified and sensitive information to the Russians, including their spy, concerning ISIS, which the Russians and others inferred (correctly) was from Israel. According to Vox, “When Donald Trump revealed highly sensitive information to Russian Foreign Minister Sergei [sic] Lavrov in the Oval Office, he directly endangered the life of an Israeli spy living under deep cover in ISIS territory. . . . ‘The real risk is not just this source,’ Matt Olsen, the former director of the National Counterterrorism Center, [said,] ‘but future sources of information about plots against us.’ ”27

  Even though none of this is legally treasonous, for the reasons stated above, from an impeachment standard perspective many journalists and ordinary Americans may sense that something close to the concept of treason occurred, however unwittingly, by President Trump.

  Remember that James Madison used the phrase “betrayal of trust to foreign powers” as a basis for impeaching a president. That must have been an important one for him. Madison described the debates in his diary every day, and it is clear that he was very reluctant to oust a president using impeachment unless there was a gross danger to the integrity of the government, similar to Alexander Hamilton’s impeachment offense standard of an offense to the society itself governed by our Constitution.

  Also, as explained above, the word “trust” has the inherent meaning of a trustee with a fiduciary duty—in this context, a duty first and exclusively to the American people and not to any foreign power, much less a foreign power such as Russia whose policies have been adverse, at times downright hostile, to the American people.

  We know without doubt that as of the fall of 2017, Russia had engaged in what many have described as an act of war: a direct and intentional attack on our democracy and our democratic processes, specifically with the aim of corrupting the most important election in our nation—the election of a president. We know from the email received by Donald Trump Jr. that on June 9, 2016, the Russian government had offered, through someone identified in the email as its attorney, to provide critical information about Hillary Clinton to assist Donald Trump in his presidential campaign. Donald Jr. insists that he did not inform his father of this, but it nevertheless is the basis for a congressional investigation. If Trump knew about this or subsequent offers by Russia to assist him and harm Clinton and welcomed either, that would surely constitute the level of “betrayal of trust to foreign powers” that would meet Madison’s standard—at the least, a threshold crossed to initiate an impeachment investigation.

  Violations of the Domestic and Foreign Emoluments Prohibitions

  There are two provisions of the Constitution that might provide the basis for impeachable offenses if violated by the president.

  Most people who have studied the emoluments issue are familiar with the “antiforeign” emoluments clause (Article I, Section 9, Clause 8), forbidding any U.S. government office holder to receive anything of value from a foreign power. The clause reads, in relevant part:

  No Person holding any [U.S. government] Office . . . shall, without the Consent of the Congress, accept of any present, Emolument . . . of any kind whatever, from any . . . foreign State.

  Less familiar is what is known as the anti-domestic emoluments clause (Article II, Section 1, Clause 7):

  The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

  An emolument is some form of advantage—a gift, or profit, or cash payment—due to one’s official position. Both articles have been interpreted by some constitutional experts as barring any elected or appointed U.S. government official, including the president, from accepting additional economic benefit “of any kind whatever” while holding office. (Other experts, a minority, don’t believe the foreign emoluments clause applies to the president.)

  The framers may have believed that allowing such emoluments makes the recipient vulnerable to foreign bribes and corruption. And they had reason to worry. So, near the end of the Constitutional Convention, Charles Pinckney “urged the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence.” That idea became the so-called foreign emoluments clause.**

  In addition, at the Constitutional Convention, Alexander Hamilton warned, “Foreign powers . . . will interpose, the confusion will increase, and a dissolution of the Union will ensue.” Hamilton also stated, in Federalist Paper No. 22, “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.” The delegate Elbridge Gerry said, “Foreign powers will intermeddle in our affairs, and spare no expense to influence them. . . . Every one knows the vast sums laid out in Europe for secret services.”28

  Has President Trump received emoluments? Three lawsuits have been filed in DC federal district court since January 2017, asserting that he has violated one or both of the Constitution’s emoluments provisions, foreign or domestic, by allowing himself to be economically benefited by foreign governments, such as when foreign diplomats stay in Trump hotels or he profits from foreign deals and decisions; or allowing his salary to be supplemented while serving as president through such continued ownership of U.S. hotels and assets. The first suit was filed in January by CREW, Citizens for Responsibility and Ethics in Washington, and amended in April to include local restaurants that claimed their economic interests were directly prejudiced by Trump’s continued ownership of the DC Trump International Hotel and restaurant.29 The second was filed in June by the attorneys general of Maryland and the District of Columbia, contending that the Trump International Hotel competed against Maryland’s and the District’s convention business while violating the emoluments clause of the Constitution.30

  The third suit was filed in June by 196 Democratic members of Congress. They assert that their constitutional role as provided in the foreign emoluments clause (where the “consent of Congress” is referenced before any foreign emolument may be accepted by a federal office holder) constitutes sufficient interest or “standing” to merit review of their suit by a federal court. Here are some of the factual allegations from the congressional suit that involve President Trump receiving foreign and domestic economic benefits31:

  • Management fees and other fees paid to Trump properties by foreign governments or by entities controlled by foreign governments.

  • Hotel accommodations, services, and goods purchased by foreign governments.

  • For The Apprentice, continued payments from broadcasters owned by foreign governments.

  • Trump International Hotel, Washington, DC, and leased from the General Services Administration (GSA) its BLT Prime restaurant (with President Trump personally standing to benefit economically from both) have served, and intentionally been marketed to serve, foreign diplomats and governments. For example, it was reported that Trump International Hotel officials pitched for business to approximately one hundred foreign diplomats, post-inauguration, including from Kuwait, Saudi Arabia, and Georgia.

  • The major tenant in Trump Tower in New York City is the Industrial and Commercial Bank of China, a majority-owned Chinese government entity. Negotiations for renewal of the lease will occur while Trump is still president. Trump also receives monthl
y management and other fees from foreign-government tenants, including Saudi Arabia, India, Afghanistan, and Qatar.

  • Possible use of presidential power for his own personal or his company’s economic benefit. For example, for more than ten years China had rejected Trump company applications to license exclusive use of the Trump brand for properties in China. Appeals to China’s highest courts had been unsuccessful prior to his election. After his election, Trump told the president of Taiwan that he might revisit the U.S. “One China” position, meaning he might consider recognizing Taiwan as an independent nation and not part of China. Then, after meeting with the Chinese president, Trump reaffirmed the “One China” policy. Five days later, China reversed its position and granted Trump companies the right to register the Trump trademark.

  The suit’s alleged domestic emoluments include:

  • Conflict of interest and economic benefit from the lease by General Services Administration (GSA) to the Trump International Hotel. On December 8, 2016, before Trump took office, the deputy director took the position that once Trump was in office the Trump Organization would be in breach of the lease contract. One week later a contracting officer said that GSA took no position on the issue. In any event, unless his widely criticized steps to insulate himself from his investments were effective, President Trump was in effect acting as the lessor and the lessee—a classic conflict of interest—as well as receiving even more financial benefits beyond his salary.