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Trump Didn’t Need to Commit a Crime to Be Kicked Out of Office Trump Doesn’t Need to Commit a Crime to Be Kicked Out of Office
(about 1 hour later)
An important line of defense for President Trump against the House decision to formalize impeachment proceedings is that he did not commit a crime. In this view, asking a foreign government to investigate your chief political rival is not a “thing of value” for purposes of campaign finance statutes, meaning that there was technically no violation of federal criminal law.An important line of defense for President Trump against the House decision to formalize impeachment proceedings is that he did not commit a crime. In this view, asking a foreign government to investigate your chief political rival is not a “thing of value” for purposes of campaign finance statutes, meaning that there was technically no violation of federal criminal law.
But the potential criminality of the president’s conduct is not the full picture. Our founders deliberately drafted the Constitution’s impeachment clause to ensure the potential grounds for impeachment would cover more than criminal activity.But the potential criminality of the president’s conduct is not the full picture. Our founders deliberately drafted the Constitution’s impeachment clause to ensure the potential grounds for impeachment would cover more than criminal activity.
The White House memo summarizing the president’s July 25 phone call with Ukraine’s new president (it’s not really a transcript) contains devastating facts. It shows that the president of Ukraine asked President Trump for help buying Javelins (an antitank weapon system) and that Mr. Trump’s next words were, “I would like you to do a favor, though,” after which he requested information about CrowdStrike (an American cybersecurity firm) and his leading 2020 opponent, Joe Biden.The White House memo summarizing the president’s July 25 phone call with Ukraine’s new president (it’s not really a transcript) contains devastating facts. It shows that the president of Ukraine asked President Trump for help buying Javelins (an antitank weapon system) and that Mr. Trump’s next words were, “I would like you to do a favor, though,” after which he requested information about CrowdStrike (an American cybersecurity firm) and his leading 2020 opponent, Joe Biden.
That is brazen conduct — and it took place the day after Robert Mueller testified in Congress, perhaps when Mr. Trump felt liberated from the shadow of the Russia investigation. It shows the president trying to outsource his political opposition research to a foreign government in exchange for enabling the purchase of weapons from the United States. Even Richard Nixon, who knew a thing or two about opposition research, never thought to outsource the Watergate break-in to a foreign government.That is brazen conduct — and it took place the day after Robert Mueller testified in Congress, perhaps when Mr. Trump felt liberated from the shadow of the Russia investigation. It shows the president trying to outsource his political opposition research to a foreign government in exchange for enabling the purchase of weapons from the United States. Even Richard Nixon, who knew a thing or two about opposition research, never thought to outsource the Watergate break-in to a foreign government.
To make matters worse, before the call record of that conversation was released on Wednesday, President Trump pointed to it as exculpatory evidence. It makes you wonder what will be revealed about other calls, contacts or additional forms of impropriety that informed a whistle-blower complaint that led to leaks to reporters about the phone call. Mr. Trump’s attempt to gain a personal political favor is not simply astoundingly bad judgment, it is antithetical to our democracy. If Americans cannot trust that their elections are immune from foreign interference, there will be a legitimacy crisis in American democracy itself. Furthermore, by doing this, Mr. Trump opened himself up to blackmail. He gave the Ukrainian government a weapon to wield over him — if he didn’t do their bidding, they could have gone public with what he had done.To make matters worse, before the call record of that conversation was released on Wednesday, President Trump pointed to it as exculpatory evidence. It makes you wonder what will be revealed about other calls, contacts or additional forms of impropriety that informed a whistle-blower complaint that led to leaks to reporters about the phone call. Mr. Trump’s attempt to gain a personal political favor is not simply astoundingly bad judgment, it is antithetical to our democracy. If Americans cannot trust that their elections are immune from foreign interference, there will be a legitimacy crisis in American democracy itself. Furthermore, by doing this, Mr. Trump opened himself up to blackmail. He gave the Ukrainian government a weapon to wield over him — if he didn’t do their bidding, they could have gone public with what he had done.
That’s why our founders wrote the impeachment clause to be broader than criminal activity. Many crimes are not impeachable (jaywalking, for example). Other activity isn’t necessarily criminal but is obviously a basis for impeachment (not defending the United States against a foreign attack).That’s why our founders wrote the impeachment clause to be broader than criminal activity. Many crimes are not impeachable (jaywalking, for example). Other activity isn’t necessarily criminal but is obviously a basis for impeachment (not defending the United States against a foreign attack).
For our founders, the touchstone of presidential unfitness to serve was always abuse of the public trust. They viewed the president as having a fiduciary obligation to the American people — just like trustees — and if the president violated that duty, he should be impeached. The first Congress discussed as one of the obvious bases for impeachment the possibility that a president dismissed “meritorious officers.” Or as Charles Black, the greatest scholar of impeachment, once reasoned, if the president announced a policy that he would give pardons to every police officer who killed someone in Washington, D.C., that wouldn’t be criminal but would be obviously impeachable.For our founders, the touchstone of presidential unfitness to serve was always abuse of the public trust. They viewed the president as having a fiduciary obligation to the American people — just like trustees — and if the president violated that duty, he should be impeached. The first Congress discussed as one of the obvious bases for impeachment the possibility that a president dismissed “meritorious officers.” Or as Charles Black, the greatest scholar of impeachment, once reasoned, if the president announced a policy that he would give pardons to every police officer who killed someone in Washington, D.C., that wouldn’t be criminal but would be obviously impeachable.
Mr. Trump’s administration tried to hide the full whistle-blower complaint by attempting an end-around a federal law that requires that the full report be sent to Congress. His own Justice Department (once again) is working hard to clear him of wrongdoing. This time, the president’s appointees in that department did not even have the veneer of first allowing a special counsel investigation to proceed before trying to undermine its conclusions; they tried to stop the investigation before it even began.Mr. Trump’s administration tried to hide the full whistle-blower complaint by attempting an end-around a federal law that requires that the full report be sent to Congress. His own Justice Department (once again) is working hard to clear him of wrongdoing. This time, the president’s appointees in that department did not even have the veneer of first allowing a special counsel investigation to proceed before trying to undermine its conclusions; they tried to stop the investigation before it even began.
The Justice Department’s involvement in this affair is striking for another reason: It is the department’s official position that Mr. Trump cannot be indicted on a charge of obstruction of justice as a sitting president. Every responsible scholar who takes the view that a president cannot be indicted says that the remedy instead is to impeach the president. But the Justice Department is trying to interfere with that impeachment process as well, going so far as to take tendentious legal positions to try to avoid the information being turned over to Congress.The Justice Department’s involvement in this affair is striking for another reason: It is the department’s official position that Mr. Trump cannot be indicted on a charge of obstruction of justice as a sitting president. Every responsible scholar who takes the view that a president cannot be indicted says that the remedy instead is to impeach the president. But the Justice Department is trying to interfere with that impeachment process as well, going so far as to take tendentious legal positions to try to avoid the information being turned over to Congress.
To the department, the only remedy the American people have is the 2020 election — the very election that it appears Mr. Trump sought to skew by getting help from a foreign government. And if it were up to the Justice Department, the American people would have never even learned about any of this — because it issued what was a secret legal opinion to justify ignoring the Intelligence Community Whistleblower Protection Act, which requires the information to be turned over to Congress within days.To the department, the only remedy the American people have is the 2020 election — the very election that it appears Mr. Trump sought to skew by getting help from a foreign government. And if it were up to the Justice Department, the American people would have never even learned about any of this — because it issued what was a secret legal opinion to justify ignoring the Intelligence Community Whistleblower Protection Act, which requires the information to be turned over to Congress within days.
The American people need to know whether their president sought help — indeed, continues to seek help — from a foreign government to bolster his attempt to win an election. To say “wait until after the 2020 election” is to reward the problematic behavior; the whole point is that the president is trying to corrupt the democratic process by getting help from a foreign power. The president and his advisers were warned about this beginning in 2016 (remember all the fallout after his son’s “if it’s what you say, I love it, especially later in the summer”). He cannot plead ignorance. This looks like activity coldly calculated to undermine American democracy.The American people need to know whether their president sought help — indeed, continues to seek help — from a foreign government to bolster his attempt to win an election. To say “wait until after the 2020 election” is to reward the problematic behavior; the whole point is that the president is trying to corrupt the democratic process by getting help from a foreign power. The president and his advisers were warned about this beginning in 2016 (remember all the fallout after his son’s “if it’s what you say, I love it, especially later in the summer”). He cannot plead ignorance. This looks like activity coldly calculated to undermine American democracy.
Neal K. Katyal (@neal_katyal), an acting solicitor general under President Barack Obama, is a law professor at Georgetown.Neal K. Katyal (@neal_katyal), an acting solicitor general under President Barack Obama, is a law professor at Georgetown.
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