House Democrats are Taking Things Slow

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Politco reports that Nancy Pelosi, incoming Speaker of the House, is reining in impeachment efforts in order to give Special Counsel Robert Muller more time with his investigation. She is joined in this effort even by progressive Democrats who voted to start impeachment efforts last year, such as Rep. Pramila Jayapal. Though representatives, such as California Rep. Eric Swalwell, recognize that the campaign finance law violations, established by Michael Cohen when he confessed to paying hush money to models Stormy Daniels and Karen McDougal, do constitute impeachable offenses, they feel they do not alone justify impeachment. It has been suggested that this may be in part because they are reluctant to risk the blow-back that Republicans faced after the impeachment of President Clinton for the mild offenses brought incident to the Lewinsky scandal. They are however planning to start oversight hearings in January.

House Democrats are wise to wait. With new reports that Saudi Arabia, the United Arab Emirates, and Turkey may have had their hands in President Trump’s election, it is apparent that whatever conspiracy exists, it has many more as of yet not-established parts. Additionally, as Professor Bowman has written, the impeach-ability of Trump rests on the slue of missteps he has committed since before and during his presidency. It will take the whole of his crimes, well established by Mueller’s investigation, to justify impeachment efforts.

download (3).jpgChip Somodevilla/Getty Images

The Case for Impeachment of Donald Trump, Part 2 (Electoral corruption)

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By Frank Bowman

This is the second in a series laying out the case for and against impeachment of Donald Trump based on currently available information.  In the first installment, I observed that the case for impeachment rests not on any single event, but on a pattern of behavior that could be argued to fatally damage the personal or political legitimacy of the president and/or amount to subversion of the constitutional order broadly conceived.

Here I consider that portion of Mr. Trump’s conduct that relates to the American electoral process.

The political legitimacy of any president who ascends to the office by election, rather than operation of constitutional or statutory succession mechanisms, rests primarily on success in winning an election.  Even a vice president who succeeds to the office after the removal or death of a predecessor receives a slightly attenuated version of the same kind of democratic legitimacy by having run as the vice presidential partner of the predecessor.  More broadly, the entire federal government is legitimated by regular elections of both Congress and the president. In consequence, presidential misconduct of two types related to elections may constitute an impeachable offense.

The first type is any presidential behavior that casts doubt on the essential validity of the president’s own election. The Framers made a particular point of noting that misconduct of that type would be impeachable.  George Mason maintained that a president who “procured his appointment” by corrupting the “electors” must be impeachable.  2 The Records of the Federal Convention of 1787 65 (Max Farrand ed., 1911). Gouverneur Morris made the same point. Id. at 69. By “electors” they meant members of the Electoral College because that regrettable institution was envisioned by the Founders as a body of illustrious men selected by the states who would exercise their independent judgment in selecting a proper president for the nation.  As originally designed, the process of picking a president had no place for voting by the citizenry.  The “electors” made the choice.

To the Founders, the only obvious way of corrupting the presidential selection process was to corrupt the tiny circle of eligible voters – the electors.  Today, of course, electors exercise no independent judgment.  They merely transmit the preference of the voters of their state.  Presidential elections are now supposed to be essentially, if sometimes imperfectly, democratic exercises that reflect the will of the people. Therefore, practical modern electoral corruption (other than outright ballot box stuffing or its modern computerized equivalents) must take the form of distorting the judgment of the electorate, rather than the electors.

That sort of corruption, if of sufficient magnitude, might be impeachable — with this significant caveat:  The arts of voter persuasion inevitably have some aspects of flim-flam.   Political spinning, concealment of one’s own flaws, factually questionable slurs on an opponent’s record or character, appeals to emotion rather than logic — all could be said to distort reasoned voter choice.  But just being an ordinary politician cannot be an impeachable offense.  Even concealment of a disreputable fact about one’s past surely cannot alone be impeachable. Everybody has skeletons.  Impeachments on this ground would permit relitigation in Congress of every presidential election. Therefore an impeachment on grounds of corrupting the electorate would have to be based on behavior so far outside the elastic norms of modern political conduct that it both demonstrated the successful candidate’s contempt for the democratic process and put the fair operation of democracy at risk.

Something like this is among the subjects of Special Counsel Mueller’s Russia investigation.  There seems little doubt, for example, that members of Mr. Trump’s family and campaign apparatus sought negative information about Democratic nominee Hillary Clinton from representatives of the Russian government, most particularly at a meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort and various Russians at Trump Tower in July 2016.  Whether they received such information or, alternatively, encouraged Russian operatives to release it secretly through the WikiLeaks platform, remains to be seen.

The mere act of seeking negative information about a political opponent, even from a foreign source is neither criminal (contrary to some breathless suggestions in the media) nor in itself a violation of any democratic norm.  After all, if a candidate is informed that important, potentially election-changing, negative information about the opposition is held by some person or institution that happens to be “foreign,” it would hardly seem appropriate, or even constitutional, to prohibit that candidate from asking the foreign source to provide the information.  Depending on the nature of the information, one can argue that a failure to ask would itself be a dereliction.  Suppose, for example, that the foreign power was offering information that an opposing presidential candidate was herself a spy or active traitor.  Surely there could be nothing inherently wrong in pursuing a credible claim that such information existed (although doing so secretly and without the knowledge of official national security agencies would be, for reasons explained below, profoundly unwise) .

What makes Trump’s case especially questionable is that it would have been plain to his representatives (and to Trump himself if, as seems likely, he knew about the meeting) that any information would be coming from intelligence services of a hostile foreign state and, because the information was initially touted as Secretary Clinton’s emails, it would have to have been stolen or hacked by those services.  Thus, in accepting the information, the Trump campaign would have been benefiting from a crime of espionage.  Moreover, the source of such information would automatically raise serious questions about its accuracy, particularly given the known antipathy of the Russian government to Hillary Clinton.

Finally, and dispositively in my view, the mere effort to obtain tainted information from Russian sources necessarily creates precisely the situation that Mr. Trump now faces.  The fact of such contacts undertaken without coordination with U.S. intelligence agencies is, at least, politically discreditable.  It thus places Trump in his capacity as President at a disadvantage in any dealings with Russia because they have the power to disclose more about the contacts and thus do political damage to Trump.  This reality is not altered even if, in fact, nothing more happened than we now know.  Nothing  prevents the Russians from claiming that there was more, or fabricating evidence to that effect, or threatening Trump that they will do so unless he is compliant with Russian objectives.  By even entering into conversation with Russia about this subject, Trump gave a foreign adversary leverage over him in the event of his election.

A second issue relating to Russia and the 2016 election is the, by now undisputed, fact that Russia attempted to intervene in the election against Hillary Clinton and for Donald Trump.  Critically, it did so, not by open declarations of its government’s preferences (which is thought bad form in the international community, but is hardly illegal by any standard), but by surreptitious proliferation of anti-Clinton/pro-Trump social media content.  Whether this conduct is in any degree chargeable to Mr. Trump depends on whether he knew about and encouraged it.  He has obstinately denied that any Russian meddling occurred and denied with even greater vehemence that he knew about or encouraged whatever the Russians may have done.

As of this writing, it is plain that Mr. Trump was perfectly willing to accept secret electoral help from a traditionally hostile foreign power.  More cannot yet be said. Whether Trump’s behavior vis-a-vis the Russians was illegal or not, it was both far outside the historical norms of American democratic politics and an egregious betrayal of American foreign policy interests.

A third issue related to the 2016 election is the assertion by federal prosecutors that Mr. Trump guided the payment by his former lawyer Michael Cohen of hush money to two women with whom he had had extramarital affairs, and that these payments were criminal violations of federal election law because they amounted to illegal, unreported campaign contributions.  Mr. Trump’s responses to these allegations have varied so frequently that tracing them is pointless.  The key issues here are three: First, the prosecution alleges and Cohen admits that the purpose of the payments was to deceive voters.  Second, proving that Trump’s purpose in authorizing the payments was primarily political rather than personal (a desire to hide his behavior from his wife) might be challenging.  Third, even if criminal, this behavior standing alone is surely not impeachable.  The analogy to Bill Clinton efforts to conceal his affair with Monica Lewinsky is too painfully obvious.

It is presumably for these reasons that Congressman Jerrold Nadler (D-NY), incoming chair of the House Judiciary Committee, recently observed that the hush money payments may be impeachable offenses in a technical sense, but not serious enough to warrant impeachment by the House. That being, said, the mistress hush money payments do form a part of a larger pattern of willingness to ignore both the law and democratic norms in pursuit of election victory.

In addition, Mr. Trump has consistently engaged in a more general effort to subvert the integrity of the U.S. electoral process.  This has taken the form of relentless, and entirely unsubstantiated claims of individual voter fraud or corruption on the part of election officials.  This pattern began before the 2016 election with Trump’s warnings that, should he lose, it would only be because of election fraud.  It continued after the election with Trump’s repeated – and totally baselessclaim that three to five million illegal votes were cast in 2016 by non-citizen immigrants.  This was followed by Trump’s appointment of a short-lived, tragicomic, commission to investigate the existence of vote fraud; the commission disbanded after eight months, partly due to the incompetence of its Republican principals, but even more directly due to the complete absence of any evidence to support its animating premise.

Mr. Trump’s dogged adherence to the voter fraud fantasy can be explained in large measure by his well-documented insecurity over the fact that Secretary Clinton received about 2.9 million more popular votes than Mr. Trump in the 2016 election, even though Mr. Trump won the Electoral College.  However, his assaults on the integrity of the election system have not been limited by this personal idiosyncrasy.  In the days following the midterm elections of 2018, when a number of races in Arizona and Florida were so close that recounts seemed likely, Mr. Trump immediately began charging – without any evidence – that election officials were corrupt and that the elections were  being stolen.

The American democracy will only survive so long as the people have confidence that their votes will be counted and honored.  A president who incessantly questions the essentially integrity of elections cannot be excused on the ground that he is merely salving his tender ego.  Nor is a persistent pattern of questioning electoral integrity any part of traditional American political discourse.  It is deeply dangerous, deeply subversive of the constitutional order, and for that reason could properly be considered as part of a larger pattern supporting impeachment and removal from office.

Michael Cohen’s sentencing pleadings

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By Frank Bowman

On Saturday, I wrote a piece for Slate analyzing some notable peculiarities in the two sentencing memoranda filed regarding former Trump lawyer Michael Coehn by the U.S. Attorney’s Office for the Southern District of New and Robert Mueller’s Special Counsel’s Office.  The link is here.

I note that the prosecutors have treated Cohen quite differently than one would treat an ordinary cooperating witness.  And I speculate that the decision to ask for a quick sentencing and to file two sentencing memos with rather different takes on Cohen’s usefulness and the credit he should get for cooperation may be a coordinated strategy to pressure Cohen to give full cooperation on everything he knows, rather than the partial cooperation he’s apparently given to date.

I note in the Slate piece that the Cohen situation is quite odd in comparison with ordinary prosecution practice.  What I find odd are three points, only two of which I really touched in the Slate piece and not completely there.  The first is the fact that SDNY and Mueller are employing Cohen as a “cooperator” at all, given that he hasn’t signed a cooperation agreement and won’t agree to be fully debriefed.  I’m sure prosecutors have done this from time to time, but I can’t recall doing that or seeing it done.  As I indicated in Slate, in any case I ever ran, my response to that kind of half-baked cooperation would have been to show the guy the door.  A half-cooperator just can’t be trusted and is a ticking bomb in your case.

Of course, I can see why, in this case, SDNY and Mueller would agree to debrief Cohen on whatever he’d give, while giving him no promises.  The importance of the case and Cohen’s position vis-a-vis Mr. Trump would make even partial information irresistible. (And by the way, I don’t recall — though certainly it’s probably been done — ever encountering a defense lawyer who’d let his client do multiple debriefings without a cooperation agreement.  Leaving all else aside, everything the guy says is arguably fair game for both sentencing enhancements under the guidelines and further charges.)

The second oddity is the fact, which I didn’t specify in Slate, of effectively letting the SDNY memo drive the sentencing train.  Of course, the SDNY charges are more serious from a criminal law point of view and carry longer sentences, so that gives SDNY more leverage over the outcome.  But in this case, it’s Cohen’s relationship to the Mueller investigation that obviously matters.  In SDNY, Cohen is just a run-of-the-mill white collar schnook.  Whether he does or doesn’t cooperate fully with respect to his own financial misdeeds is really unimportant.  What matters is what he can say about Mr. Trump, Trump’s business associates, and family.  I find it difficult to believe that SDNY would take a sentencing position based purely, or even primarily, on their views about Cohen’s cooperation in relation to his personal crimes.  Granted, SDNY has a reputation of having a high opinion of its own importance, but I don’t think even they are that parochial.  One has to think that the Mueller and SDNY positions have been coordinated with Mueller’s views being paramount.  Thus, the question is to what end.  My Slate piece is simply a speculation about what that end might be.

The third, and to me most outstanding, oddity is the timing of the sentencing (for both Cohen and Flynn).  I don’t recall ever seeking an immediate sentencing for a cooperator before they have completed their cooperation, including all testimony.  In any ordinary situation, and for the reasons I describe in Slate, it makes no sense.  There has to be a tactical reason for doing this.  The best explanation I can come up with for Cohen without knowing the inside scoop is the one I put in Slate.

Nonetheless, there are other possibilities.  One is that the three sentencing positions taken this week by Mueller, et al — as to Cohen, Flynn, and Manafort — are intended to be seen together as a signal to other potential cooperators.  The signal would be: (1) you cooperate fully, you get no prison (Flynn); (2) you cooperate, but hedge, you go to prison with only a very modest reduction (Cohen); (3) you screw with us, we’ll put you away for life (Manafort).  But if this is what they’re doing, who is the intended recipient of the signal?

A final possible explanation of the odd timing of the Cohen and Flynn sentencings is that Mueller doesn’t view the endpoint of this investigation as a trial in which Cohen and Flynn will testify.  Perhaps his focus is a report about the activities of the president.  If that’s the case, then ordinary practices regarding cooperators might be altered.  Presumably, Cohen has testified before a grand jury under oath and had his factual claims locked in so that any later material change during, for example, a congressional hearing in which he testified under oath would subject him to an additional charge of perjury.  And for Mueller, that may be good enough.

We shall see….

BTW, the reflections above are in part a response to a very kind and informative email I received from former federal prosecutor Julie Werner-Simon.  I reproduce it with my thanks below:

Dear FB:  In response to your piece this weekend in Slate re: Cohen’s cooperation, I, as former lifer-federal prosecutor (in white collar and organized crime), have these clarifications

to your point about the “odd”-ness in two prosecution teams having different “sentencing-takes” on the same defendant who is “cooperating” in multiple federal investigations. 

1.   What happened with Michael Cohen happened in multiple cases I worked as a federal prosecutor. The cooperating defendant (who was providing information to me) gave full and complete information and assisted in my investigation of other crimes and other defendants.  That same defendant “came in late” and provided little to the other team’s case.

2.   Our respective sentencing memoranda reflected the different “takes.”  What the other prosecution team was not permitted to do was “devalue” my team’s assessment of the cooperator.  The coordination in that case was akin to “driving a clutch” and both teams had to make sure the car did not stall out.  That we had different takes was not odd; how we orchestrated/presented the different takes was what required precision and finesse – as the government is required to ultimately speak in one voice vis-a-vis a defendant.

3.   With respect to Cohen “giving cooperation” but not being deemed by the federal prosecutors as a Sentencing Guideline “5K1.1 cooperator” is addressed in an interview I gave Friday eve to Millennial Politics. Here is the link for your review. 7 Takeaways From The Cohen Sentencing Memos | Millennial Politics

I thank you for your reporting which is based on experience “in the trenches.”  For me, it is essential that people who have held the job, conducted investigations and who understand the U.S.C. (the United States Code) as well as rules of evidence (Fed. R. Evid.) and trial practice – – actually write about it.

         Sincerely,

·       Julie AWerner-Simon

·       Former Federal Prosecutor, 1986 – 2015, Senior Litigation Counsel, Major Frauds Section U.S. Attorney’s Office, Los Angeles, as well as Deputy Chief, Organized Crime Strike Force 

·       California Bar License 141630

·       Pennsylvania Bar License 37844

·       Post J.D. Fellow, Constitutional Studies, Southwestern Law (2017-19)

·       jawsMEDIA.LA@gmail.com

Impeachable Offenses? on Cheddar

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Several days ago, I was intrigued to do an interview about the (almost entirely redacted) sentencing memorandum of General Flynn with a new media outlet I’d never heard of – Cheddar, which bills itself as the “leading post-cable news, media, and entertainment company.”  For those interested in the interview, or just in seeing Cheddar at work, the link follows:

https://cheddar.com/videos/special-counsel-mueller-recommends-no-jail-time-for-michael-flynn

Frank Bowman

The Case for Impeachment of Donald Trump, Part 1 (The Forest & the Trees)

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By Frank Bowman

As I noted last week, I’ve finally finished my book on impeachment, High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump, due out from Cambridge University Press in the spring.  The book begins with an in-depth examination of the history of impeachment in the United Kingdom and the United States from 1376 to the American founding through all the American impeachment cases to date, and concludes with five chapters focused particularly on issues of potential relevance to Mr. Trump.

To get the whole argument, you’ll have to buy the book. 🙂  However, over the next few weeks, I’m going to summarize the case for and against impeaching Mr. Trump given what is currently known.

The Big Picture

The paramount lesson I learned from my long journey through British and American constitutional history is that impeachment is, and was always intended to be, a means of protecting the Constitution in the broad sense, by which I mean not only the particular governmental arrangements and personal rights specified in the written document, but equally importantly, the distinctively American institutions and norms that have grown, flourished, and solidified around the written core.  Because the Founders recognized the impossibility of defining in advance the precise nature of the threats to constitutional order an uncertain national future might produce, they wrote and ratified a flexible standard for impeachable conduct and delegated the choice of how to apply it to Congress — the most democratic, politically accountable branch of the national government. The requirement of a 2/3 majority for conviction in the Senate makes impeachment politically difficult.  But the language of the impeachment clauses, the British and American practice so influential in shaping that language, and the precedents created by American impeachments since 1788 impose no absolute limits on the conduct for which Congress may impeach and convict a President.

The result is that — as a constitutional matter — we can impeach a president whenever we should, which is to say whenever removal of the president seems essential to protecting constitutional order.   If that is true, one might ask why even bother studying the history of impeachment, either before or after the composition of the Constitution. The answer is that the constitution’s impeachment language and the history surrounding it are essential aids in helping us think about what should be done for the good of the republic in any new case.

The key to framing a strong impeachment case against Donald Trump is recognizing the unique character of the threat he presents to constitutional order.  Every American impeachment case to date has centered on a discrete set of acts, or at least a pattern of conduct with an identifiable set of objectives or exemplifying particular disqualifying traits.  To take only the presidential examples: Andrew Johnson violated the Tenure of Office Act, and did so as part of a general pattern of usurping congressional authority to define the course of post-Civil War reconstruction.  Bill Clinton lied about adulterous sex and obstructed justice to conceal the sex and the lies. Richard Nixon’s offenses seem more various, but the charges against him nonetheless centered on three closely interrelated themes – first, his campaign organization committed crimes to gain electoral advantage and he orchestrated a cover-up of those crimes; second, he engaged in a larger pattern of abuse of power, including misuse of government agencies, for the purpose of helping his friends, hurting his perceived enemies, and gaining political advantage; and third, he unjustifiably resisted congressional power to investigate impeachable conduct.

By contrast, the list of Trump’s offenses against constitutional propriety and reasonable expectations of presidential behavior is dishearteningly diverse and includes conduct in virtually all the categories of conduct historically identified as “high Crimes and Misdemeanors.”  His potential offenses begin with obstruction of justice both narrowly and broadly defined, abusing (or at least thoughtlessly misusing) the pardon power, ceaseless prevarication in every forum, and using his office to enrich himself and his family while violating the emoluments clauses in the process.  They run on to include varying forms of electoral misconduct; culpable maladministration  of various kinds, most notably deconstruction of America’s trade, diplomatic, and security architecture; persistent attacks on the legitimacy of other branches of government and of the free press; regular abuse of the norms of civil discourse, and more.  I have identified nine separate categories of conduct that might figure in an impeachment case against Mr. Trump.

I will examine each of those categories in subsequent posts, but the present point is that Trump’s true offense, the thing that would justify his impeachment and removal, is not any one of these, but the totality of his multifaceted assault on the norms of American constitutional government.  The unifying feature of all his offenses, large and small, is self-aggrandizement.  His object is to draw as much power, money, and adulation to himself, and secondarily to his family, as he can.  His invariable method is to attack any person, institution, law, rule, custom, or norm that might impede him from whatever he happens to want at the moment.  His objective is government according to the will of the one. What he seeks, whether as some deep-laid plain or more likely because it is simply his nature, is autocracy.  And there is solid, venerable precedent for impeachment on that ground.

The most important, constitutionally formative, impeachments in British history were those in which Parliament brought down ministers who “endeavored to subvert the ancient and well established form of government in this kingdom, and instead thereof to introduce an arbitrary and tyrannical way of government.”  This was the fundamental danger against which the Framers sought to guard when they incorporated the impeachment power into the American constitution.  Those opposing impeachment in particular cases are apt to emphasize language from the founding generation and others suggesting that the impeachment power should be reserved for “great occasions.”  The classic quotation in this vein is from Lord Chancellor Somer, who said in 1691 that “the power of impeachment ought to be, like Goliath’s sword, kept in the temple, and not used but on great occasions.”  5 New Parl. Hist. 678 (1691).  While that may be so, by the same principle, impeachment is a power that reaches the greatest of occasions and ought to be used if the republic is not to fail.   We happy Americans have never before been confronted by a presidential personality which posed a real risk of degeneration into autocracy.  We are loath to recognize the danger or to act on it.

A consistent theme of this blog has been that Donald Trump presents such a danger and that serious-minded people should at least consider whether impeachment is the proper remedy for it.

Subsequent posts will consider the bill of particulars against President Trump.

The Moscow Project Looms

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Michael Cohen, President Trump’s former lawyer, pleaded guilty earlier today to a charge of “false statements,” for lying to Congress about the extent of his and President Trump’s involvement in plan to build a “Trump Tower” in Moscow, Russia. Cohen falsely represented, in a letter sent to the Senate Select Committee on Intelligence and House of Representatives Permanent Select Committee on Intelligence, that 1) “The ‘Moscow Project’ ended in January 2016 and was not discussed extensively with others in the Company;” 2) “Cohen never agreed to travel to Russia in connection with the Moscow Project and ‘never considered’ asking [President Trump] to travel for the project;” and 3) “Cohen did not recall any Russian government response or contact about the Moscow Project.” In fact Cohen communicated with Felix Sater, a real estate developer with Russian ties, about the project; told Sater he would travel to Russia; addressed Trump about the possibility of Trump traveling to Russia; and communicated directly with Russian officials about the project.

Obviously this looks bad for Trump. The evidence of these ongoing communications with Russian agents strengthen the case for collusion/conspiracy to defraud in that it helps to establish, at least, that Trump’s confidant and fixer had strong ties to Russia while Trump was campaigning for office, and goes a long way towards establishing that Trump had such ties as well. While that doesn’t get us all the way to conspiracy to defraud, it certainly helps to bring us closer. One email written by Sater in November 2015 about the project may be damning. It read in part: “our boy can become President of the USA and we can engineer it.”

e201bbe0-4806-4aef-a7f0-0a873d9738b7-AP_Trump_Lawyer_Party_Switch.jpgMary Altaffer, AP

Book Complete: Back in the saddle again

By Frank Bowman

I’ve been largely absent from this space for the last few months pushing to finish my book on impeachment.  My able research assistant and indefatigable blog co-author Sam Crosby has been keeping things going here in my absence.  I’m happy to report that the manuscript is done, off to the publisher, and that my long-suffering wife is no longer, as she puts it, a book widow.

The book, to be published in the spring by Cambridge University Press, is titled — High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.  Although it is scarcely the only work on the subject to appear in this distressed season, it offers something rather different than the other books rushed to press in 2018.  I’ve gone back to the origins of impeachment in medieval England and meticulously examined the whole development of the mechanism in Great Britain, pre-1787 America, in the founding era, and thereafter (including detailed chapters on the impeachments or near-impeachments of Presidents Andrew Johnson, Nixon, and Clinton) to develop what I think is a comprehensive and historically supported theory of the proper scope of presidential impeachment.  Chapters 11-14 consider particular grounds for impeachment of possible relevance in the case of Mr. Trump.  Chapter 16 lays out the case for and against doing just that.

When the book is released, I will shamelessly shout it from the rooftops.  In the meantime, I will undoubtedly refer to some of its conclusions here.

Manafort Flips Again

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Special Counsel Robert Mueller has submitted court filings indicating that his team will not be recommending that Paul Manafort’s, President Trump’s former campaign chairman, sentence be reduced as previously considered, because Manafort has not been cooperative with his investigation. Manafort plead guilty to two counts of conspiracy pursuant to a deal he made with prosecutors; however, contrary to that agreement, Manafort has been lying to authorities (about some unspecified things). David S. Weinstein, a former federal prosecutor, believes Manafort’s lack of cooperation may be due to a belief that he will ultimately receive a pardon for his crimes. The consequences of such a pardon and similar pardons have previously been considered on this blog.

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Abuse of Military Power — the Newest Impeachable Offense?

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This opinion piece, published in the New York Times, describes President Trump’s order sending the military to meet the caravan of immigrants at the U.S.-Mexican border as an unprecedented abuse of military power. The caravan referred to is that of the thousands of immigrants moving north towards the United States from Central America. President Trump has used the caravan to boost his anti-immigration rhetoric over the past few weeks. Trump recently ordered that 5800 military troops march to meet the immigrants, an action which the opinion piece above theorizes was taken solely to curry political favor. If that is that case, it would be an unprecedented abuse of military power.

Though what Trump did was technically legal,  the opinion claims that it amounts to an abuse of military power.  To use and move troops for no other reason than to gain political advantage is a first for American presidents. The piece points out that though other presidents have referred to military actions in speeches to increase their popularity, there are no examples of presidents that have taken military action within the United States for no other reason than to curry political favor. It argues politics must be the sole reason for the order because in the past similar border threats have been dealt with by fewer troops and the national guard alone. By treating the situation as a more serious threat, Trump has turned a group of tired immigrants into a national security threat. As such, Trump’s manner of dealing with the caravan amounts to an unprecedented abuse of military power.

Abuse of military power has historically been considered an impeachable offense. Professor Frank Bowman wrote an article about the history of British impeachments (found here), entitled “British Impeachmnets (1376 – 1787) & the Present American Constitutional Crisis.” In it he explores historical British impeachment procedure and specific examples of British impeachments. He cites to several examples of British officers that were impeached for military blunders. For instance, Michael de la Pole, Earl of Suffolk, was impeached for failure to adequately utilize funds for maritime defense and bungling a military expedition to relieve Ghent. In 1626 parliamentary outrage over George Villiers, the Duke of Buckingham’s, military incompetence also led to articles of impeachment.

The phrase “high crimes and misdemeanors” is the vague descriptor of what qualifies an act as impeachable. It can be difficult to tell what the founding fathers intended to fall into that scope. However, the drafters of the Constitution would have known of these British impeachments. An impeachment of a president for abuse of military power does not seem out of the realm of possibility, because of the historical precedent already in place for such a thing, and because the enormous power that is placed with the President as the Commander in Chief. Without a way to rectify abuse of said power there would be little balance between the branches of government. Therefore, it is arguable that in moving 5800 troops to the border Trump has committed another act worthy of impeachment.

Will the Investigative Torch Pass to the House?

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With Jeff Sessions gone as Attorney General and Matt Whitaker positioned as acting AG, one has to wonder how much longer Mueller will be able to carry on his investigation unhindered. It may be the Special Counsel will have to pass his baton over to the House. But will  House Democrats vigorously investigate?

This article from Vox, written by Ezra Klien, correctly points out that because Democrats took the House but not the Senate, they will have trouble passing legislation into law. Much of what power is left to them is in the  investigation of President Trump. With their new found majority, Democrats are taking over vital investigative committees in the House. New York Democrat Nita Lowey, will chair the Appropriations Committee, and has “a laundry list of potential areas for inquiry. . . . [including the] family separation policy and hurricane relief in Puerto Rico.” California Rep. Adam Schiff will lead the House Intelligence Committee, which has already been engaged in the Trump investigation.

However, Democrats may be reluctant to shift their focus to investigation. Nancy Pelosi, House Democratic Leader, has said that any investigations will be “strategic” aimed at “seek[ing] the truth.” And Rep. Zoe Lofgren, a Democrat from California, expressed a similar sentiment, stating: “if Mueller sends us an exploding bomb, we may have an obligation to deal with that. But absent that, I don’t think the country will be on board with impeachment, and nor should we.” She feels that focusing on the investigation will distract from what “really matters to people.” It may be Democrats are unwilling to focus their energy of uncovering a truth that, even if it leads to impeachment in the House, will fail to cause removal by the Senate.

pelosi.jpgJ. Scott Applewhite