corrupting criminal justice, enemies list, High Crimes and Misdemeanors, Nixon impeachment, take care clause
On July 27, 1974, the House Judiciary Committee approved three articles of impeachment against Richard M. Nixon. The second article charged that President Nixon abused the powers of the presidency either by using or trying to use federal investigative agencies against his political enemies or by interfering or trying to interfere with lawful investigations by those agencies into his own wrongdoing or that of his subordinates. He tried to get dirt on his opponents through the IRS. He ordered the FBI to conduct investigations of actual or suspected enemies in and outside of government. He sought to suppress investigations into the growing Watergate scandal. As the fifth specification of the article of impeachment put it:
In disregard of the rule of law, he knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.
In short, the House Judiciary Committee voted to impeach Richard Nixon because he sought to turn the immense power of the Justice Department and federal criminal investigative agencies against his political adversaries. Although this article of impeachment was never approved by the full House of Representatives because Nixon resigned before a vote could be taken, it received more votes in committee than any other proposed article. No respectable scholar of the constitution doubts that directing the criminal justice and intelligence systems of the United States against political opponents for purposes unrelated to the impartial enforcement of the law or preservation of legitimate national security interests is among the impeachable “high Crimes & Misdemeanors” of Article II, Section 4.
This morning, Friday, November 3, Mr. Trump sent out a series of Tweets in which he explicitly urged the Justice Department and the FBI to investigate Hillary Clinton and the Democratic Party for a grab bag of supposed offenses — e-mails deleted from Secretary Clinton’s private server, the Russia-uranium kerfluffle, activities by Tony Podesta (lobbyist and brother of Secretary Clinton’s campaign manager), and the allegation that officials at the Democratic National Committee worked with Secretary Clinton’s campaign to give it a boost over that of Senator Bernie Sanders.
The Trump Tweet-string included these classics:
Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems..
….People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!
Mr. Trump followed up these Tweets with statements to the press in which he said he is “disappointed” with the Justice Department and would not rule out firing Attorney General Sessions if Sessions won’t investigate Democrats.
In my view, Mr. Trump’s tweets tiptoed right up to the line of an impeachable offense. His subsequent statements to the press stepped firmly over it.
Using the Nixon precedent as a template, in order to show that Mr. Trump’s behavior is impeachable, several requirements must be met:
First, he must be seeking to employ the criminal investigative powers of the federal government against his political opponents. That is unquestionably the case.
Second, he must be acting, in the words of the Nixon impeachment article, “for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office.” Although his most devoted adherents may claim otherwise, it is impossible to divine any legitimate, non-political, purpose in his call for action by the Justice Department.
- Although it is doubtless a matter of intense interest for members of Democratic Party, whether the DNC did or didn’t favor Secretary Clinton can by no stretch be translated into a violation of law, and still less a fit subject for a criminal investigation by a Justice Department controlled by the opposing party.
- The Clinton e-mail matter has already been investigated by the Justice Department, even if extreme Republican partisans may not have liked the outcome.
- Tony Podesta’s activities are already the subject of inquiries by Special Counsel Robert Mueller, which is why Podesta just resigned from his own lobbying firm. So Trump’s inclusion of Podesta in his broadside manifested either a scarcely credible ignorance of the state of play of an investigation with which Mr. Trump is plainly obsessed or a willful attempt to deflect attention from Mueller’s focus on Trump campaign affiliates.
- And, as multiple credible observers have explained, the Russia-uranium-Clinton connection is an invented non-story. Jeffrey Lewis, a nuclear materials and non-proliferation expert, observed in Newsweek, “I have to say that this is one of those things where reasonable people cannot disagree: There just aren’t two sides.”
In short, every item on the laundry list of things for which Mr. Trump wants the Justice Department to investigate his political opponents is either not a crime, has already been or is being investigated, or, in the case of the Clinton-uranium “scandal,” is an invented storyline promoted by Mr. Trump and his supporters to divert attention from the Mueller investigation.
Third, it is not necessary to establish impeachable misconduct that a president succeed in bending law enforcement agencies to his corrupting purpose. While some of the law enforcement and intelligence officials Nixon tried to enlist in his illegal schemes cooperated, many refused or ignored his orders, the IRS, the CIA, and important elements of the FBI among them. His failed attempts to misuse federal agencies were nonetheless integral components of the impeachment case against him.
This is a key point in the present case. If pressed, Mr. Trump will no doubt claim that he didn’t order anybody to do anything and that his Tweets are, at worst, expressions of dismay at the established norm that bars presidents from direct involvement in Justice Department decisions. This is, of course, transparent eyewash. When a President of the United States publicly proclaims that he wants an executive branch agency to do something and will be deeply displeased if it doesn’t, that’s tantamount to an order.
Even if it were not, Mr. Trump took the next and fateful step this morning when he expressed disappointment in the Justice Department for its inaction and held open the option of firing the Attorney General if his wishes were not honored. That is as close to a direct order as a president can give without putting it in writing. Any way you slice it, Mr. Trump is telling the Justice Department and the FBI that he wants them to engage in legally baseless, politically motivated criminal investigations.
Finally, it is not, cannot be, an excuse if Mr. Trump were to say, “Well, even though the uranium story and all the rest prove to be baseless, I didn’t know that. As I so often do, I was just responding to what ‘people are saying.'” As the Nixon articles of impeachment observed, a president has the solemn constitutional obligation to “take care that the laws shall be faithfully executed.” If this duty means anything in the criminal justice setting, it means that presidents shoulder an obligation even more binding than that assumed by their subordinates not to unleash on any citizen the intrusive, life-altering power of federal investigative agencies absent credible evidence that a real crime may have been committed.
Let us be absolutely clear here. No matter how far Mr. Trump has warped our collective sense of what is normal or even minimally acceptable in an American president, it is not acceptable for a president either to employ, or threaten to employ, the agents and ministers of the criminal law of the United States against his enemies for political gain. A president who does so engages in precisely the class of misconduct perilous to the maintenance of republican government for which the founders designed the remedy of impeachment.
When and if the political season is ever ripe for enumerating Mr. Trump’s “high Crimes & Misdemeanors” in articles of impeachment, his attempts to corrupt the American justice system should be among those articles.
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Wonderful blog and nice to see critiques and debunkings from a scholarly perspective.
One recommendation: Use a script that puts all of Trump’s tweets in Comic Sans. That’s all the elegance his torturous bleating deserves.
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Sponge Bob said:
Ok. So by your standard. Where were you when Obama used the IRS to go after conservatives?
Typical hypocrite. Anything Obama did is ok.
1) It is not a rebuttal to an argument that A has committed an impeachable offense to say that B did the same thing.
2) Moreover, the claim that President Obama “used the IRS to go after conservatives” is objectively untrue. Presumably what you refer to are the allegations that one or more units of the IRS decided to review the tax-exempt status of conservative, but not liberal, organizations for violation of the rule that such organizations may not engage in overtly political activity. Note at the outset that, even in its original form, this allegation contained no credible assertion that the decision to engage in differential review of tax-exempt status originated from the top of the IRS. And there was never even the hint of a suggestion that President Obama had any knowledge of what regional level IRS employees were supposedly doing. I emphasize “supposedly” because the claims to which you refer have since been generally debunked. Please see the following links:
3) On the IRS matter, you will choose to believe what you choose to believe, but even in its most feverish form, the allegation of localized IRS differential review of the tax status of conservative groups is not comparable to a direct order from the President to the Department of Justice to investigate political opponents for entirely specious criminal offenses.
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Nitzana Floyd said:
Nitzana Floyd said:
Reblogged this on nitzanaWORLD and commented:
I’m not one go about demanding impeachment, but this is a very thorough examination as to why the idea is being tossed around. “[I]t is not acceptable for a president either to employ, or threaten to employ, the agents and ministers of the criminal law of the United States against his enemies for political gain.”
robert: carr said:
Are you joking? A tweet regarding the what the DoJ is or should be doing or is not or should not be doing is now in your scholarly legal opinion is a impeachable offense?
The Department of Justice is an Executive Agency. All those employees of the DoJ serve at the pleasure of the President. The President is the embodiment of the Executive branch and the Chief Law Officer of the United States, regardless of whether or not he/she is a BAR Attorney/foreign agent, as i am certain you are aware…?
The DoJ is not an agency of the Judiciary.
Your hysterical rants are symptoms of unstableness.
You becoming unhinged regarding a twit/tweet makes you look a twit.
More propaganda nonsense!
The POTUS has a duty to ensure that his subordinates are carrying out his lawful orders and to see that they are carried out faithfully.
The criminal activity of any and All, regardless of party and offense are to be investigated and prosecuted when warranted.
You were not ranting and raving hysterically when the previous Administration employed the power of DoJ for political purposes…..? Hmmm?
Please, save your ranting and raving for criminal activity….
Mr. Nixon’s crime was materially obfuscating a criminal act by members of his Administration after the fact;
After 11 months and countless expenditure there exist no Evidence of any criminal act comitted by Donald Trump the candidate and President Trump after 12:01 on 21 January, 2017.
However, there now exist a treasure trove of Evidence of criminal activity by the previous Administration which included the Democratic Canidate for President and her surrogates prior to, during and after her campaign.
The present chief investigator has multiple conflicts of interest which cast great doubt his impartiality; and, also calls into question his own culpibilty and legal liability of his own actions as the previous Director of the FBI…
Bolsheviks, communist, facist Lucifarians and the like your all the same!
“Fascist Luciferians” — I will say no more…
This delusion is indicative of an acute infection from a dangerous brain parasite known as a “SavageFoxJonesLimbaughBreitbartHannity-ozoa,” aka “Bullshit.” It is highly contagious and predominantly spreads through AM radio and the internet.
Symptoms include (but are not limited to): complete loss of rational thought, inability to listen to un-infected people, propensity for ad-hominem attacks, unbending belief in a grand conspiracy perpetrated by a (((particular ethno-religious group))) or communo-fascist liberals, and a generalized desire for violent, authoritarian actions against all non-infected persons.
Unfortunately this parasite is only becoming more virulent and is spreading at an alarming rate. There is no known cure and the best treatment—rational, fact based argument—has become considerably less effective over time. This is primarily due to the organism forcing its host to trust and believe only information that comes from select sources, and to call every other source “fake news.”
It is unclear how to best react when encountering an infected person. Engagement typically leads nowhere, yet is seems equally as dangerous to allow the parasite to spread its message unchallenged so that it may infect other poor, unsuspecting souls.
FishOutofWater aka George said:
Hysterical, indeed, thanks for the laugh. Your comment satirizes itself.
1. Administration has already stated that oil of his tweets are official memos.
2. He has already threatened his attorney general in the event that a dubious investigation is not pursued.
3. He has only been in office about 10 months and the investigation started after he was in office. That is not a long time for an investigation. Nixon’s investigation was much longer and so was the investigation of Hillary Clinton.
Walter Beard said:
So OK professor by your own rational both Clinton’s Obama and Muller should be investigated and charged with treason for the Uranium One deal and both the Clinton’s hung for treason against the United States of America and Muller should be serving a life sentence as the bag man.
And you mentioned Benghazi and the culpability of Ms Clinton and Obama and the others in the murder of four United States citizens as well as whom ever else sat in the situation room at the White House and did nothing to help save those four innocent men.
It is now quite obvious why our children that attend institutions of “higher ” learning come out indoctrinated in Marxism and Maoisum and just want to be great social justice warriors!
You and your type make me sick!
Inasmuch as you have taken the time to write a comment, I’ll do you the courtesy of providing a response.
What we professors, particularly those of us in law schools, spend a good deal of our time doing is trying to teach our students the importance of reading source materials carefully, determining facts, and reasoning carefully from those facts to draw their own independent conclusions.
As to the first of these, you say that I “mentioned Benghazi.” Apparently you did not read the article that you are criticizing so severely — because I nowhere mentioned Benghazi. The fact that you imported “Benghazi” into an article in which it does not appear is pretty revealing. It certainly suggests that you have some difficulty in reading material that does not conform with your pre-existing views and considering such material on its merits. If you were a student of mine assigned to critique this article, I’d give you an “F” on this ground alone.
As for the Uranium One business, I’d urge you to do a bit of independent research AND independent thinking. The article contains three links that explain why the supposed scandal has no substance whatever. Please read them, think carefully and honestly about what they say, and if you like come back and let me know your reactions. If you aren’t disposed to do that, at least consider this question — In the statements I have criticized, Mr. Trump complains that the Justice Department and the FBI are not investigating this Uranium One affair. Think carefully about that for just a moment. Ask yourself, who controls the Justice Department and who runs the FBI. The answer, of course, is Republicans appointed by Mr. Trump. If they are not investigating the matter, why might that be? The answer, of course, is that, even though they are led by political appointees, they are highly professional law enforcement agencies and they don’t investigate matters where there is no credible evidence of wrongdoing. To their great credit, they, so far, are resisting pressure even from the president to violate this long and proud tradition.
This is part of what it means to have a country in which the rule of law prevails. What I teach at my institution of higher learning is that lawyers, and indeed all of us, have a duty to protect the rule of law. Somehow that doesn’t feel like Maoism to me.
Walter Beard said:
Professor Bowman I do apologize for the Benghazi reference because I linked from another article and it had mentioned it and when I read it the time was 0130 here and I must have mistook a reference to Benghazi from someone else for your editorial, again I apologize!
But as for the rest of your argument I still stand by what I said, I have never been a lawyer but have been in enforcement for more than twenty five years and over that time I watched the rule of law go straight down the toilet because of lawyers that interpreting the law every which way they could to get their guilty clients off and getting oh so rich while doing it, I guess that’s why so many innocent people are in prison while the crooks are dancing in the streets.
I was taught that laws are black and white and to use logic and your analytical powers to decide if someone is guilty or innocent.
Too many of the law professional operate in the gray areas now a days and find a way for their clients to slip free from the way justice is supposed to work.
And by the way thank you for the courtesy of the reply.
Thank you for the conversation!
Thank you for your response. Your earlier comments were the spark for my latest post on the blog. You may not find that post very congenial, but I hope you’ll at least think about it carefully.
As an aside, I’m always delighted to converse with folks in law enforcement. Far from being a closet Commie, I spent 14 years as a state or federal prosecutor. One of my brothers is a former FBI agent and state prosecutor. The other has been a prosecutor for the Department of Justice for over two decades. It is largely because of that long personal and family experience that I am so profoundly disturbed at Mr. Trump’s efforts to corrupt the federal criminal justice system for political ends.
Walter Beard said:
Thank you for the reply, I am aware of your background because you were a prosecutor in my home state of Colorado.
I’m no longer in law enforcement I am retired do to a disability and now try to find interesting ways to keep busy.
It’s been a pleasure conversing with you and I look forward to keeping up with your blog.
Richard Liu said:
Messrs. Beard and Bowman:
If such a frank, civil, respectful discourse among Americans on opposite sides of issues were the rule rather than the exception, then I would be confident that Americans can fix what is wrong with America.
Walter Beard said:
You sir are very astute, the problem lies in as much that we are so polarised on both sides of the spectrum and have forgotten how to come together and converse in a civil manner.
What we have now that impede a civil discourse is gangs of thugs dressed up all the same with their faces covered so nobody recognizes them so they can be stopped.
If we could get rid of that adatude those people have it might just go a long way to bring both sides together to be able to maybe deal with these issues.
Thank you very much for the insightful comment.
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Realist who clicked the wrong link apparently said:
This article is most amusing. If we persecuted people over there opinions on social media, half the world would be in jail. The rest would presumably be children and the elderly.
1) A president who says publicly that he wants an agency in the executive branch to do something, and holds open the possibility of firing the head of that agency if his wishes are not complied with is not expressing an “opinion.” He is giving a direction.
2) Impeachment is neither “persecution” (as you put it) nor criminal prosecution. A federal official impeached by the House and convicted by the Senate is not sent to jail. The constitution specifically limits the consequences of successful impeachment to removal from office. If you are genuinely interested in these matters, there are a variety of posts on the blog that cover the basics.
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