--Published by Truthdig, December 6, 2016
Donald Trump has yet to be inaugurated, but talk of impeachment has been in the air since the day after the election. It’s been promoted by an array of influential commentators, both progressive and conservative—from filmmaker Michael Moore on the left to New York Times columnist David Brooks on the right.
Even American University political historian Allan Lichtman, who defied the polls and confidently predicted that Trump would triumph on Nov. 8, has gotten in on the act, forecasting that Trump won’t finish his first term in the Oval Office.
As much as I’d like to agree with Moore, Brooks and Lichtman—the names, after all, have the collective ring of an authoritative blue-chip law firm—I have to demur. Talk of impeachment is premature, born of the proverbial first stage of grief—denial—over the improbable election of a narcissistic, ill-prepared neofascist as our 45th head of state.
I’m skeptical about a quick Trump exit, not because he hasn’t committed or won’t soon commit acts that could meet the constitutional standard of “high crimes and misdemeanors” as grounds for impeachment. To the contrary, I think a convincing list of such infractions could be drafted in an hour. (More on that below.)
I’m skeptical because the impeachment process isn’t a legal proceeding in the ordinary sense. It’s not something that injured parties—say, for example, victims of police abuse—can initiate with the filing of a well-reasoned complaint lodged at the downtown courthouse. Rather, it’s a hybrid of law and politics that operates only at the highest levels of government pursuant to a unique set of procedures.
In Trump’s case, the political conditions for impeachment just aren’t present, and aren’t likely to be any time soon. The Republican Party establishment, its public pre-election misgivings and hand-wringing to the contrary, has fallen in love with Trump. The GOP leadership will overlook any transgressions to keep him in office for one simple reason—he’s their ticket to power, and power is all that matters.
Of course, Republican leaders won’t openly admit to such cravenness. Instead, you’re hearing people like House Majority Leader Kevin McCarthy of California admonishing Democrats to “chill” about the conflict of interests between Trump’s private business holdings and his responsibilities as the incoming president. And we’re also told, by serious analysts such as Forbes magazine contributor Robert Anello, that it’s “unclear” whether presidents can be impeached for conduct that occurred before they took office.
I explored exactly that question in this column back in February, ironically, addressing Republican threats to impeach Hillary Clinton, then the odds-on favorite to win the presidency, over her use of a private email server during her tenure as secretary of state.
One of my purposes in writing the earlier column—which now has direct relevance to Trump—was to respond to the claim put forward by Clinton backers, such as reporter Philip Bump of The Washington Post’s The Fix blog, that federal officials can’t be impeached for past acts.
Bump expressed his views in a widely cited October 2015 post, in which he invoked the House’s 1873 impeachment investigation of Vice President Schuyler Colfax, who was accused of taking kickbacks in cash and discounted stock from the Union Pacific Railroad’s Crédit Mobilier subsidiary in exchange for votes while serving in the House during the 1860s. As Bump noted, the House Judiciary Committee dropped its impeachment probe mainly because Colfax’s improprieties occurred before his ascendancy to the executive branch.
The Colfax case, however, is but one episode in the tangled and often contradictory history of impeachment in America. It by no means stands as a binding precedent.
Historically, impeachment proceedings have not been limited to offenses committed after accused officials have been elected or appointed to their current offices. To cite just two examples, both of which are discussed in the 2015 study “Impeachment and Removal,” prepared by the nonpartisan Congressional Research Service (CRS):
- In 1912, Judge Robert Archbald was impeached and convicted while serving on the 3rd Circuit Court of Appeals and the short-lived United States Commerce Court (which was disbanded in 1913) in part because he had accepted gifts from litigants and lawyers and committed other corrupt practices while working previously as a federal district court judge.
- More recently and even more on point, federal Judge G. Thomas Porteous was convicted in 2010 by a Senate vote of 96-0 on four articles of impeachment, two of which concerned financial corruption that began while he was a state court judge in Louisiana in the 1980s, and a third that alleged he had made false statements to the Senate and the FBI in connection with his appointment to the federal bench.
It should also be remembered that the investigation that ultimately led to Bill Clinton’s impeachment started with an examination of the Whitewater real estate scandal that took place in Arkansas in the 1970s and ’80s. From there, the probe expanded to the former president’s sexual encounter with Paula Jones while he was governor of Arkansas, then to the deposition he gave while president in Jones’ civil lawsuit against him—in which he lied about his relations with White House intern Monica Lewinsky.
Thus, when contemplating a potential Trump impeachment, there would be no legal bar to removing the new president based on his vast canvas of pre-existing malfeasance. Setting politics aside for the moment, Trump would be fair game from day one at the White House.
As the CRS study explains, “The Constitution gives Congress the authority to impeach and remove the President, Vice President, and other federal ‘civil officers’ upon a determination that such officers have engaged in treason, bribery, or other high crimes and misdemeanors.”
To quote the study further: “First, a simple majority of the House impeaches—or formally approves allegations of wrongdoing amounting to an impeachable offense, known as articles of impeachment. The articles of impeachment are then forwarded to the Senate where the second proceeding takes place: an impeachment trial. If the Senate, by vote of a two-thirds majority, convicts the official of the alleged offenses, the result is removal from office. …”
Scores of federal officials have been the subject of impeachment deliberations since the nation’s founding, and the House has referred 19 individuals to the Senate for impeachment trials—15 federal judges (including Supreme Court Justice Samuel Chase in 1805), one senator, one Cabinet member and two presidents—Andrew Johnson and Clinton. The Senate has conducted 16 full impeachment trials (the other three referrals were dropped), convicting eight lower-court judges. All the rest—Chase, Johnson and Clinton among them—were acquitted.
Because of the plenary powers given to Congress, the impeachment process is largely insulated from judicial review. Past impeachment investigations aren’t binding on subsequent sessions of Congress in the way that past judicial rulings and precedents are binding on judges. In the words of Gerald Ford, who as House minority leader spearheaded an unsuccessful campaign to remove Supreme Court Justice William Douglas in 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
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Although the CRS study doesn’t contain Ford’s quip about Justice Douglas, it nonetheless supports Ford’s view that over the years the phrase has been given a broad and robust reading, suggesting that it pertains to conduct that results in serious violations of the “public trust.” Such conduct usually is criminal in nature, but need not be.
So what might become Trump’s impeachable offenses? Here are three significant categories, and they are by no means exhaustive:
Pending Civil Litigation: Trump was elected to serve as commander in chief, not litigator in chief. Yet even with the $25 million he paid to settle the three Trump University civil fraud and racketeering lawsuits filed in California and New York, he will take office with an estimated 75 additional legal actions pending against him.
These include a $4 million libel claim brought by a former associate in New York; a class-action consumer protection case in Chicago related to his campaign’s distribution of unsolicited cellphone text messages; an action brought by two celebrity chefs who allege nonpayment of fees related to their work at the newly opened Trump hotel in Washington, D.C.; a sexual harassment suit filed by a former employee of Trump’s golf course in Jupiter, Fla; and investigations opened by New York Attorney General Eric Schneiderman into the Trump Foundation’s practices of seeking donations without proper approval. In addition, Trump has threatened to take the offensive and sue a dozen women who accused him during the campaign of making unwanted sexual advances in the past, and he’s sworn to take The New York Times to court for running stories about their claims.
As the Supreme Court held in Paula Jones’ lawsuit against Clinton, sitting presidents are not immune from civil litigation arising out of events that transpired before they took office. The prospect of having the “leader of the free world” attend to dozens of private legal matters, sitting for lengthy and embarrassing depositions and answering interrogatories, should be enough to raise questions about Trump’s fitness for office. The prospect of a jury or judge rendering a verdict against him in any one of the pending cases only compounds the problem.
Conflicts of Interest and the Emoluments Clause: Although the president and vice president are exempt from some conflict of interest laws that apply to other executive branch officials, they are subject to the Ethics in Government Act of 1978, as well as Article I, section 9, of the Constitution, often referred to as the Emoluments Clause.
The ethics act requires annual disclosures of financial assets, and is aimed at ensuring federal officials maintain undivided loyalty to the public interest. The Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept of [sic] any present, emolument, Office or Title, of any kind whatever, from any King, Prince, or foreign State.” In other words, the clause prohibits federal officials from receiving gifts or other financial benefits from foreign governments.
According to the financial disclosure form Trump filed in May with the Federal Election Commission, he has an ownership share in more than 500 closely held corporations. These include hotel, golf and real estate development projects across the United States, as well as resort and hotel properties in Dubai, Qatar, China, Azerbaijan, Brazil, Egypt, Georgia, India, Indonesia, Israel, the Philippines, South Africa and Turkey.
Given Trump’s international business network, there are genuine concerns under the Emoluments Clause that he may tailor American foreign policy to bolster his own profit margins, or that foreign governments might offer to approve Trump ventures, thereby enriching Trump and his family, in exchange for increased U.S. aid or other benefits.
Similar concerns abound regarding the president-elect’s domestic holdings. For example, his Trump International Hotel in Washington, D.C., which is housed in the Old Post Office Pavilion and leased from the General Services Administration (GSA), has come under close scrutiny because the contract on the property contains a provision barring elected federal officials (of whom Trump tops the list) from benefiting from the lease. Dozens of foreign diplomats have already booked rooms at the hotel, prompting some government ethics specialists to recommend voiding the GSA contract altogether.
The only sure way for Trump to resolve the conflict issues consistent with his responsibilities as president would be to place his entire financial empire into a qualified blind trust administered by an independent third party. Yet despite his recent promise to come up with an acceptable plan to divorce himself from his businesses, the sole proposal he’s floated to date involves turning the Trump brand over to his children.
Make no mistake: The conflict questions are huge. Failure to resolve them quickly and decisively threatens to plunge the country into a constitutional crisis, and turn the federal treasury into one big kleptocracy.
Assaults on Constitutional Rights: The highest responsibility of any president is to uphold the Constitution. Since the outset of his campaign, however, Trump has all but declared war on the seminal text.
He began by targeting Mexican immigrants, threatening to construct a wall along our southern border, institute mass deportations of the undocumented, end birthright citizenship under the 14th Amendment, ban the immigration of Muslims, and create a database of Muslims already living here. Shortly afterward, he pledged to work, if elected, to “open up” the nation’s libel laws to make it easier for public figures to sue the media for unfavorable news coverage. He also vowed to revive the most extreme forms of counterterrorist interrogations, including waterboarding, and said he would appoint Supreme Court justices committed to overturning Roe v. Wade.
More recently, he typed out a late-night tweet, calling for jail time or loss of citizenship for those caught burning the American flag. He has also sparked anxiety among privacy advocates that once in office, he will take measures to expand the surveillance powers of the FBI, CIA and National Security Agency.
In a press release issued Nov. 9, the American Civil Liberties Union described Trump’s verbal assaults on the Constitution as “not simply un-American and wrong-headed,” [but also as] “unlawful and unconstitutional. They violate the First, Fourth, Fifth, Eighth, and Fourteenth Amendments.”
ACLU executive director Anthony Romero declared in the release that if Trump “endeavored to make his campaign promises a reality,” he would face court challenges without end.
Normally, an incoming president, especially one with no prior government experience, might be expected to heed the ACLU’s warnings. But these are not normal times. Trump and the GOP have contempt for constitutional values and the prohibitions against self-dealing. That being so, even if some House Democrat with half a backbone were to introduce an impeachment resolution, the effort likely would go nowhere, at least in the short run.
Still, the effort would be worth it. As the Trump era unfolds and the mad tea party he’s assembled to staff his Cabinet grabs the reins of policy, his administration is certain to unleash a groundswell of opposition and resistance.
In the meantime, calls for Trump’s impeachment can serve as a rallying cry for the resistance and, as part of a larger struggle for democracy, an umbrella to bring together disparate groups, institutions and organizations his presidency will harm. Unless I’m very much mistaken, the long process is already underway.