Other High Crimes and Misdemeanors
Partisanship in national politics has grown dramatically in the past three decades. Setting out to limit a President to one term (as Senate Republicans did with respect to President Obama) no longer seems sufficient. Ever since Donald Trump’s election there has been continuous calls for his impeachment. In fact, every President, beginning with President Clinton, has been the subject of similar demands. This level of partisanship not only tends to paralyze Congressional action, but also severely hamstrings the executive branch of our government. While our nation’s founding fathers were concerned about the possibility that voters might select a tyrannical chief executive, it is difficult to accept that they envisioned that every President would be hounded by continuous demands for his or her removal from office. Thus, effective governance seemingly requires that reasonable limitations be placed on the conditions for impeaching a President.
Article I, Section 3 of the U.S. Constitution provides that “The President . . . shall be removed from office on Impeachment for, and conviction of, Treason, Bribery or other high Crimes and Misdemeanors.” It goes on to provide that the trial of the charges shall take place in the Senate. While this language is vague, it is clear that the impeachment process, which takes place in the Congress, and not the courts, was intended to be political in nature, with both Houses of Congress having substantial flexibility in making their determinations. Thus, in order to curb irresponsible and disruptive threats, Congressional leaders should try to set reasonable bounds for invoking the impeachment process.
Ideally, such restrictions should be embodied in an amendment to the Constitutional; however, the process for adopting Constitutional amendments is both long and arduous. More importantly, Congressional legislation could serve equally well and would be much easier to achieve. Equally important, a President faced with impeachment is not likely to sign legislation lowering the threshold for impeachment which means that any such effort would require a strong bi-partisan vote to override a Presidential veto which, in itself, would mean that impeachment would be highly warranted.
Since President Nixon’s impeachment the Department of Justice has been operating under a guideline which prohibits it from instituting a criminal proceeding against a sitting President. Underlying this guideline is the belief that the appropriate remedy for a President’s transgressions is impeachment. It is also premised on two other considerations: (1) causing a President to defend a criminal proceeding will undoubtedly distract him or her from performing the duties of the President; and (2) it would be politically awkward, at best, for the Attorney General to prosecute the person at whose pleasure he or she serves. Elliott Richardson, William Ruckelshaus and Archibald Cox would undoubtedly attest to this latter consideration. Moreover, if a sitting President cannot be prosecuted by the Department of Justice, it is also equally awkward for the President to be investigated by the Department of Justice. Rod Rosenstein and Jeff Sessions would likely attest to that.
On the other hand, the recitations in the preamble of the Declaration of Independence make it abundantly clear that the founding fathers did not wish to be led by someone who was not subject to the law of the land. This means that a path must be found to allow Presidents to carry out their duties while nevertheless being subject to the law. The Justice Department’s policy seems sound and should be formally enacted into law. This should be coupled with a provision tolling the statute of limitations on all U.S. Government actions (both criminal and civil) during the President’s tenure in office.
President Trump has proclaimed that he has the power to pardon himself, a position which may only be held by the President himself as that would indeed place the President above the law. One commentator has suggested that President Trump might resign prior to the end of his term and have Vice President Pence grant him a pardon, similar to what President Ford did for President Nixon. Thus, any legislation which shields a President from litigation while in office should also preclude any President who was not elected as President by a majority of the votes cast in a Presidential election from granting a pardon to his or her predecessor without a majority vote of both the House and the Senate. While such a provision probably could not withstand a Constitutional challenge, it would have a substantial deterring effect.
While both houses of Congress, through their respective Governmental Oversight Committees, have the power to investigate a President’s suspected impeachable offenses, the 115th Congress, by failing to take any action action against President Trump, has certainly shown that there are weaknesses in relying too heavily on Congressional oversight. Besides, Congressmen and Senators are not necessarily skilled in conducting serious investigations and generally have many other competing responsibilities. Accordingly, what is needed is an independent (from the Executive Branch) counsel that could be appointed by the U.S. House of Representatives acting alone. In this way, a remedy to a President’s transgressions would never be more than two years away.
In addition to being impeached by the House of Representatives, President Clinton was also the subject of a number of private legal actions. If the President should be shielded from harassing governmental legal proceedings, it stands to reason that he or she should also have similar protection with respect to private legal proceedings. All such actions in progress when the President takes office should be stayed and the statute of limitations with respect to all unasserted claims should be tolled. While one can argue that “justice delayed is justice denied”, the delay could also benefit a would-be plaintiff who would be able to take advantage of discoveries made by news organizations investigating the President’s actions. In any event, protecting a President from legal distractions would seemingly be a high public priority.
This raises the question of just what actions by a President should be appropriate grounds for an impeachment proceeding.
Pre-Election Activities
With each passing day it is becoming clearer that President Trump’s behavior prior to his election was both distasteful and, in many respects, criminal. He was forced to settle a case brought by the New York Attorney General for having defrauded hundreds of individuals who had enrolled in Trump University. On several occasions while debating the other Republican Presidential candidates he stated that he had made political contributions to both Republican and Democratic government officials in order to obtain favorable treatment with respect to his business ventures. It was also brought out that he made political contributions to obtain favorable action with respect to his legal transgressions. In fact, he made sizable political campaign contributions to two state attorney generals who were considering joining the Trump University action.
Over the past ten years he had numerous overseas building projects and it is highly likely that he engaged in that same practice in violation of the Foreign Corrupt Practices Act. In this connection, he is reported to have offered a $50 million apartment to Vladimir Putin to secure Putin’s approval of a Trump Tower in Moscow. It also appears that President Trump over the past twenty years has engaged in money laundering by selling scores of high-priced apartments to Russian Oligarchs seeking to hide their ill-gotten gains.
Special Counsel Mueller’s investigation has further uncovered payments in violation of the Campaign Financing laws to two women to prevent them from disclosing extramarital relations with the President. Similarly, during his campaign he intimidated several other women claiming similar affairs with threats of legal action. In addition, over the years he has been named as a defendant countless lawsuits by suppliers and tradesmen who were systematically short-changed by him. His standard practice was to claim that their merchandize or workmanship was not up to agreed-upon standards and to defy the disappointed vendors to engage him in a costly legal action if they did not wish to accept a diminished payment. He has also been accused of cheating on his taxes by understating the value of some of his properties. For someone that has admittedly overstated the number of floors in his Fifth Avenue Tower, this accusation seems readily believable. Also considering his propensity to prevaricate and engage in underhanded activity, it is a good bet that these are only a few of his prior transgressions.
In short, if only a few of these accusations are true, our President seems to have well-earned the title of “Donald the Dishonest.” This would only be poetic justice for someone who takes such joy in labeling his political opponents and others who offend him with denigrating titles.
Yet, even if true, should these allegations of prior illegal and discreditable acts be appropriate bases for an impeachment proceeding? While many will undoubtedly differ, this author believes that Impeachment should not be triggered by most acts which occurred prior to the President’s assuming office. The President’s election should be taken as an affirmation that the electorate wishes him or her to serve as their leader despite prior missteps. This should generally be true irrespective of whether or not such acts were widely known at the time of the election, placing the burden on the President’s opposition to have unearthed and publicized those missteps in the course of the election campaign. If this seems to place an unfair burden on the opposition candidate (or party), Congress can always mandate certain disclosures by Presidential candidates, such as tax returns, employment histories and business relationships, months in advance of the election, and deem material misstatements and omissions in such mandated disclosures presumptive impeachable offenses.
President Trump, however, is currently being investigated for conspiring with the Russian government to affect the outcome of the 2016 election. To be sure, there are laws prohibiting foreign governments from interfering in our elections; and conspiring with any such effort is also a crime. It might also be considered treason in some circumstances. Unfortunately, misinformation and disinformation have long been a part of our political process and should not delegitimize an election simply because a foreign government has had a hand in that process. Sadly, our CIA has been accused of such actions with respect to elections held in foreign countries. The very fact that members of the electorate choose to believe false information would seem to support the view that conspiring with a foreign government to so violate our election laws should not be deemed an impeachable offense, although such actions should be subject to prosecution following the President’s tenure in office.
A more difficult question is posed if the illegal act by the candidate or any other person or government with whom the candidate conspires is not in the realm of misinformation, but rather in the form of a manipulation of actual voting results. Such acts go beyond affecting the will of the electorate and actually subvert the will of the electorate. Accordingly, they should represent an impeachable act if, and only if, they are found to have affected the actual outcome of the election.
Actions Taken While in Office
This means that impeachable offenses should normally be limited to actions taken by the President while in office. Even so, not every criminal act by a sitting President should be an impeachable offense. For example, lying about an extra-marital affair, even if done under oath, should not be the basis of an impeachment proceeding. President Clinton was not removed from office for doing so and the electorate seems largely unfazed by President Trumps incessant prevarications. To be sure, lying is not a commendable quality and lying under oath is a crime. The question should not be whether the act is wrong or even illegal, but rather whether it has a material detrimental effect on the conduct of the U.S. Government.
Similarly, the cable news media has focused on the payments made to Stormy Daniels and Karen McDougal as a basis of an impeachment proceeding because those payments appear to have been in violation of the remnants of the McCain-Feingold campaign financing law gutted by the Supreme Court. While likely illegal, these payments did not adversely impact the public, and it is highly doubtful that the disclosure of Trump’s extra-marital affairs would have had a significant impact on voting. After all, roughly a dozen other women had made similar allegation about affairs with candidate Trump in the lead-up to the election without seeming impact.
The Constitution expressly cites “treason” and “bribery” as appropriate bases for impeachment. Both of these crimes contemplate that the executive being targeted has acted in his or her own interest and contrary of the interests of those whom he or she serves. Of course, treason and bribery are not the only ways in which an elected official can betray the public’s trust. Recognizing this, the Constitution also includes the phrase “other high crimes and misdemeanors.” The important factors are materiality and breach of the public’s trust. For example, the President might agree to locate a military facility in a Congressman’s district to secure his or her vote on a bill which the President wants enacted. While this is a form of bribery and could even be material in scope, it would not necessarily involve a breach of the public’s trust. Nor would a similar act of bribery of a foreign government to obtain its support of an international endeavor constitute a breach of the public’s trust.
Conversely, accepting a bribe to take an action that is materially detrimental to the public’s interest should serve as an impeachable offense. This is the underlying premise of the “emoluments” clause which prohibits a President from accepting gifts from a foreign government. Unfortunately, such acts are all too common today and generally come in the form of campaign contributions. The U.S. Supreme Court made this problem much worse by holding most limitations on campaign contributions to be unconstitutional – a dubious decision, at best. Nevertheless, accepting bribes to take actions which are not in the public interest should be deemed appropriate grounds for impeachment.
For someone so fiercely protective of his own personal brand, President Trump in less than two years single-handedly has virtually destroyed the brand that this nation has painstakingly created over the previous two hundred and forty years; to wit:
“Give me your tired, your poor, your huddled masses yearning to breathe free” has given way to a policy of denying asylum to Central Americans fleeing persecution and separating immigrant children from their parents.
We were also a nation which prided itself that everyone would have an equal chance to succeed to one in which public schools are being diminished, health-care is being limited and affordable housing disappearing.
Pluralism is now dying a slow death. The right to vote is being restricted and the President concentrates on championing his base and turning his back on all others.
We were a nation that championed civil rights in all nations. Yet, the President has praised authoritarian leaders like China’s Xi Jinping, Turkey’s Recep Tayyip Erdogan, the Philippines’ Rodrigo Duterte and his latest close friend Kim Jung Un of North Korea while mocking democratic leaders like Canada’s Justin Trudeau, Germany’s Angela Merkel and Australia’s Malcolm Turnbull.
We were a nation that believed in working with other nations to make life better for all. Now, other nations have reason to doubt whether they can rely on our support because the President, with his America First policy, has insulted our allies, weakened the NATO Alliance, and withdrawn our nation from the Trans Pacific Partnership and the Iran nuclear agreement.
We were a leader among nations in scientific research, yet our President has rejected the findings of scientist all over the world that human activity is having a detrimental impact on the earth’s climate.
The destruction of our national image is easily the President’s most deplorable accomplishment, yet one would be hard-pressed to fit it into a legal interpretation of “high crimes and misdemeanors” because it is difficult to see how he has personally benefitted from these actions.
The President is a man who is quick to criticize others and their efforts (e.g. NAFTA and the TPP are the “worst trade agreements ever negotiated”; the Iran nuclear agreement is a “total disaster”, Representative Maxine Waters has a “low IQ”, Rex Tillerson is “dumb as a rock”, Hillary Clinton is a” crook,” James Comey is a “leaker and a liar”, etc.). He has also directed his verbal abuses toward important governmental institutions (such as the Department of Justice, the Courts, the FBI and the CIA) and most notably against the press. These verbal attacks are not without adverse impacts upon the nation as they erode public confidence in the very institutions which are designed to protect the public. Yet, as a nation that exalts the right of free speech, it is difficult to conceive that anyone would consider these irresponsible and despicable actions as impeachable offenses notwithstanding their highly detrimental effects.
The President’s major legislative achievement has been the passage of the “Tax Cuts and Jobs Act.” This legislation has greatly reduced the President’s personal tax burden. Indeed, certain of its provisions were specifically designed to benefit the President’s own business interests. While heralded as legislation that would spur economic growth, its long-term impact could well be otherwise. Contrary to the promises of the President and the Act’s other proponents, the legislation is already causing dramatic increases in the nation’s annual budget deficits. Together with rising interest rates, this will necessitate reductions in governmental spending and will likely precipitate an economic recession. Although the President undoubtedly has benefitted from his support of this legislation, even if it will ultimately work to the detriment of the vast majority of Americans, it is wholly inconceivable that the Congress would impeach a President for championing legislation which it has adopted.
Does this mean that Donald the Dishonest in reality is also Donald the Artful Dodger; and that none of his actions constitute a valid basis for his impeachment? Not necessarily. There are some actions which he has undertaken while President that could be the basis of an impeachment proceeding as they are both beneficial to him and detrimental to the public interest. Whether they are sufficiently material to sustain an impeachment proceeding, however, is unclear.
Always uppermost on the President’s mind is how he can enhance his personal wealth; and serving as President has opened a number of such opportunities to him. As noted above, while campaigning for President he frequently decried the practice of “Pay to Play” in which government officials receive benefits (either directly or indirectly) from those who do business with, or are regulated by, the government. In retrospect, it is not clear that he was actually criticizing this practice or merely announcing that in a Trump administration the “Pay-to-Play” window would be open 24/7 and that he would personally appoint the tellers at that window. The roughly $4 million that Michael Cohen garnered from Novartis, AT&T, Korea Aerospace and others would seem to indicate that he was among the President’s designated recipients for such payments. When these payments became known the President was uncharacteristically silent and when the President later chose to attack Cohen he never mentioned Cohen’s solicitations of these payments raising an inference that the President himself was an intended beneficiary of them. But that $4 million is minute in comparison to the roughly $107 million raised by the President’s Inaugural Committee even though the events at his inauguration were not as extensive as those accompanying the first inauguration of President Obama whose Inaugural Committee raised less than half that amount. One has to wonder into whose hands those funds fell.
The President has also made frequent trips to his facilities in Bedminster, New Jersey, Palm Beach, Florida and Turnberry, Scotland, taking with him scores of government employees who stay at facilities owned by the President at the government’s expense. Similarly, he caused the FBI to abandon its plan to sell its Washington, DC office building to a private developer which was planning to develop a luxury hotel that would compete with the President’s own hotel located a block away.
A more serious problem has been his dealings with governments of foreign countries with which the President has business dealings. The President’s business is highly dependent on its dealings with Russian oligarchs, and President Trump has not only reserved his highest praise for Russia’s President, but has resisted imposing sanctions upon Russia for its interference in the 2016 election and its offensive acts against Ukraine. Similarly, he has resisted taking punitive action against the Saudi Crown Prince for having orchestrated the assassination of Jamal Khashoggi, a Saudi journalist living in the United States, while justifying his actions on the fact that he personally does millions of dollars of business with Saudi Arabia. Both of these are serious situations in which the President has allowed his personal interests to alter the nation’s foreign policy. While the Constitution gives the President broad discretion in conducting the nation’s foreign policy, the abuse of that authority should be deemed an impeachable offense.
Clearly, the most likely basis of an impeachment proceeding against President Trump are his efforts to interfere with the FBI’s investigation into his campaign’s involvement in Russia’s efforts to influence the 2016 Presidential election. While, for the reasons set forth above, any conspiracy with the Russians’ efforts should not be deemed an impeachable offense, impeding an investigation in which he could be a target could well be one. Those actions include
Firing the FBI Director, citing his concern over the FBI’s investigation;
Seeking to influence the testimony of witnesses by seemingly offering Presidential pardons;
Denigrating those who have given testimony adverse to him and praising those who have refused to cooperate with the investigation;
Orchestrating attacks on the FBI and the Special Counsel conducting the investigation;
Making false statements about events being investigated such as the purpose of the Trump Tower meeting and the payments to Stormy Daniels and Karen McDougal;
Continually decrying the Special Prosecutor’s investigation as a “Witch Hunt”;
Criticizing Attorney General Sessions for recusing himself and not blocking that investigation;
Replacing the Attorney General with an individual who has openly criticized the investigation; and
Refusing to respond to the Special Counsel’s request for an in-person interview
Although Richard Nixon was impeached for similar actions, there remains a question as to the materiality of these efforts; and that may largely hinge on the strength of the evidence supporting the contention that the President’s campaign conspired with the Russians to influence the 2016 election and his personal involvement in any such conspiracy.