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Impeachable Offenses?

~ Examining the Case for Removal of the 45th President of the United States

Impeachable Offenses?

Category Archives: Articles

President Trump and International Consequences

12 Tuesday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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arms control, climate, diplomacy, donald trump, Foreign policy, Frank Bowman, G7, human rights, impeach, impeachable, Impeachment, international conferences, international law, International Law and Institution in the Trump Era, investment, Jack Goldsmith, NAFTA, NATO, president, russia, saudi arabia, Shannon Togawa, trade, war, WTO

Many of the positions President Trump has taken on important foreign policy issues and agreements have been unorthodox, even radical, and have caused public concern. Professor Bowman has argued they may even be impeachable. In fact, Trump’s foreign policy decisions have been so varied and strange, they can be difficult to account for.

Jack Goldsmith and Shannon Togawa Mercer have compiled an account of President Trump’s attack on international law in their forthcoming article International Law and Institutions in the Trump Era. They examine Trump’s decisions on trade, investment, climate, arms control, diplomacy, war, human rights, and his performance at international conferences, and write about their likely effect. Here is an excerpt:

President Trump has altered the United States stance toward international law and institutions in the first two years of his presidency in the following ways: He has verbally assaulted or threatened many of the major international institutions to which the United States belongs (most notably, the UN and several of its agencies, NATO, the WTO, NAFTA, and the G7); he has withdrawn from, or begun the process of withdrawing from, at least six international treaty regimes, including the Paris Agreement, the Iran Deal, and the INF Treaty; he has ceased negotiations for, or announced an intention not to conclude, at least two important trade agreements; he has begun a global trade war in possible violation of WTO rules; he twice attacked the Assad regime in probable violation of the Charter of the UN (UN Charter); and he sharply redirected United States human rights law policy along several dimensions and might have violated United States treaty commitments with his immigration policies.

For a comprehensive and academic review of Trump’s (possibly impeachable) foreign policy, check out the link above.

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The House is Coming Down

08 Friday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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Adam Schiff, bill pascrell, business interests, Collusion, donald trump, fraud, High Crimes and Misdemeanors, House of Representatives, Impeachment, investigation, nancy pelosi, president, Representative, russia, saudi arabia, speaker, tax evasion, tax returns, trump

The Democrat controlled House is beginning to pursue investigation of President Trump independent of Robert Mueller. Adam Schiff, House Intelligence Chairman, plans to expand the scope of his inquiry to determine whether Trump’s business interests are influencing his foreign policy decision in nations other than Russia. Additionally, the Ways and Means Committee, for whom Rep. Bill Pascrell has been speaking, has announced its intention to collect and examine President Trump’s tax returns. Notably, other House Democrats, such as Speaker Nancy Pelosi, have urged patience on that front.

ap_19038604315746_wide-33f85eab3122accc557ea08aa6be66a38793af9d-s1600-c85.jpgJ. Scott Applewhite/AP

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E-Discovery in the Trump Age

04 Monday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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ABA Journal, Brett Kavanaugh, data, discovery, donald trump, electronic, Emails, hillary clinton, impeach, impeachable, Impeachment, jason krause, Michael Cohen, paul manafort, Robert Mueller, Rod Rosenstein, Special Counsel, technology

Jason Krause’s article, “But their emails! Some of the Most Contentious Political Issues are E-Discovery Disputes” published in the ABA Journal, explores the e-discovery disputes surrounding the Trump campaign and presidency and modern politics in general. He notes:

A [large] debate over preserving electronic evidence continues to hang over national politics. Donald Trump Jr.’s meetings with Russians, Michael Cohen’s plea bargain, Brett Kavanaugh’s contentious confirmation to the U.S. Supreme Court, Paul Manafort’s fraud convictions and an attempt at impeaching Deputy Attorney General Rod Rosenstein all involve, at their core, electronic evidence.

Living in the computer age means our political disputes, especially those with criminal consequences, will frequently turn on electronic data and discovery. Interested readers should follow the link above.

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Rosenstein Assures Trump he is Not a Target of the Mueller Investigation — The News Cycle Repeats Itself

01 Friday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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bowman, deputy attorney general, donald trump, impeach, impeachable, Impeachment, investigation, Mueller, new york times, president, professor frank bowman, Robert Mueller, Rod Rosenstein, Special Counsel, subject, target, target v. subject, trump, united states

Trump said yesterday, during an interview with the New York Times, that Deputy Attorney General Rod Rosenstein informed him that he is not a target of the Mueller investigation. Trump also added that he is not a “subject” of the investigation, but it is unclear whether that is a word Rosenstein used or a descriptor Trump added. He seemed to use the words interchangeably saying first “he told the attorneys that I’m not a subject, I’m not a target,” and then added  “[t]he lawyers ask him. They say, ‘He’s not a target of the investigation.’”

Readers will recall that Trump already received the news that he is not a target of the Mueller investigation from Mueller himself in April of 2018. As Professor Bowman wrote then, what that could mean, according to the definition of “target” in the United States Attorneys Manual, is that DOJ policy prevents Trump from becoming an indicted defendant and therefore a target. However, if that is not what Rosenstein meant and Trump could be a target, then it is significant that he has not, in the past 10 or so months, become one. What is more significant is if Trump is indeed not a subject of Mueller’s investigation. That could mean that there is not enough evidence to continue investigating Trump or enough evidence to have exonerated Trump.  That, however, seems unlikely.

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Roger Stone Arrested and Indicted

25 Friday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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arrested, Collusion, Conspiracy, cooperation, DNC, donald trump, Emails, hillary clinton, indicted, investigation, president, Putin, Randy Credico, Robert Mueller, roger stone, russia, russian hackers, Special Counsel, wikileak

Roger Stone was arrested and received a seven count indictment this morning which included charges of misleading lawmakers about his communications with Wikileaks, the organization that released the emails which scandalized Hillary Clinton’s campaign, and intimidating fellow witness Randy Credico, who was also in contact with Wikileaks. Credico ultimately pleaded the 5th at Stone’s urging.

The emails released by Wikileaks were stolen by Russian hackers, and Stone is a long time friend and supporter of President Trump. If Stone chooses to cooperate with Special Counsel Mueller, he could provide the evidence need to finally establish collusion between Russia and the Trump Campaign. However, if Stone’s past comments are to be believed, he will not be cooperating. Much is yet to be seen.

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Mueller Denies BuzzFeed Report

19 Saturday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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buzzfeed, Collusion, Congress, deny, dishonest, donald, Frank Bowman, impeachable, Impeachment, lie, lying, Michael Cohen, moscow, president, report, Robert Mueller, russia, Russian, slate, trump, Trump Tower

Special Counsel Robert Mueller’s office has issued a rare statement denying the veracity of the BuzzFeed article published yesterday. The article in question stated that Mueller’s office had a cache of documents which established that President Trump encouraged his former attorney, Michael Cohen, to lie about the extent of the Moscow Trump Tower negotiations. If that were true, the legal consequences would have been severe; Professor Frank Bowman provided an analysis which was published on Slate.com.

However, though BuzzFeed has dug in its heels, the rarity of such public statements from Mueller’s office and its direct nature seem to indicate that there is no truth to the story. That is to say, Mueller’s office does not have hard evidence of such directions exchanged between Trump and Cohen. There is some concern that this revelation will give the President new ammunition against the media; however, it should not be forgotten that the truth finder of most significance in this case is Robert Mueller. It should be heartening that he is staying the course.

UT5EXCA3QYI6TCATZOO6Y5Q6OM.jpgRichard Drew/AP

 

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If When he Denies he Lies…

14 Monday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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Conspiracy, denial, dishonest, donald trump, finland, impeach, Impeachment, interpreter, investigation, lies, lying, Mueller, president, public trust, Putin, russia, russian collusion, vladmir putin

President Trump today denied that he has worked for Russia in what has been described as his “most direct response” to the accusations of collusion. This denial came in the wake of a report that after a meeting he had with Russian President Vladmir Putin last summer in Finland, Trump took their interpreter’s notes and instructed him not to discuss the meeting with any other officials.

One theory is of course that Trump did work for, or at least with, Russia, which if true means that what he said today was a lie. Which begs the question, what consequences may come to a President for lying to the public? Professor Bowman has written at length on this subject, and his writings can be found here. However, in the way of summary, Prof. Bowman noted three kinds of lies which he believes could warrant impeachment: criminally indictable falsehoods,  unindictable official falsehoods, and chronic or pervasive falsehoods. The lie at hand is neither indictable or official, as it was not given under oath and is not a communication with Congress. However, the lie could fit in the third category if added to the pool of President Trump’s many other falsehoods, which, in aggregate, Bowman has suggested, are potentially impeachable. He wrote: “chronic presidential lies do not merely render the president himself ineffectual, but also damage every other branch and function of American government.” In essence, Trump’s constant lies are one of the things which make him unfit. For an in-depth analysis of this novel idea, the reader should check out Bowman’s article, which can be found here.

ap_19014539944750_wide-234bee0b5652fad844256e61c76821ab6b04c988-s1600-c85.jpgEvan Vucci/AP

 

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Manafort Lied about Dealings with Kilimnik

09 Wednesday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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Collusion, Conspiracy, conspiracy to defraud, conspire, donald trump, impeachable, Impeachment, konstantin kilimnik, lie, lying, madrid, paul manafort, polling data, president, Robert Mueller, russian collusion, russian intelligence, Special Counsel, ukraine, witness tampering

Special Counsel Robert Mueller believes that Paul Manafort, former Trump campaign chairmen, shared polling data with Konstantin Kilimnik, a Ukranian translator and campaign adviser believed to have ties with Russian intelligence, and that he later lied about it. Apparently, Manafort’s lawyers have conceded that Manafort neglected certain details of his Ukrainian dealings, as they wrote in a court filing that “[i]t is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed.” The filing also notes that Manafort forgot  and later recalled that he had met with Kilimnik in Madrid in January or February of 2017, which was after Trump became President-elect, but also after Manafort’s tenure as campaign chairmen. Manafort and Kilimnik have previously been accused of witness tampering, for allegedly reaching out to members of the Hapsburg group, and asking them to lie about secret, pro-Ukrainian lobbying done at Manafort’s behest.

If it is to be believed that Kilimnik does have ties to Russian intelligence, then this information establishes, at least, a Russian interest in President Trump’s candidacy. Of course, that is not new information. At most, it could go to establishing communication between Trump and Russia post-election. That being said, it is only circumstantial evidence. The fact that foreign powers are interested in Trump’s nomination and presidency, does not mean he cooperated with foreign powers, and the fact that Manafort cooperated with foreign powers, does not mean that Trump participated. Still, this another straw on the camel’s back.

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Impeachment Scholars Butting Heads

01 Tuesday Jan 2019

Posted by crosbysamuel in Articles, Uncategorized

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donald trump, harvard law review, High Crimes and Misdemeanors, impeach, Impeachment, joshua matz, laurence tribe, legal standard, michael paulsen, president, to end a presidency, to end a republican presidency, to pretend to review our book, university of st. thomas

There is an interesting interplay between articles published by Harvard Law that readers might wish to explore. Michael Paulsen, of  the University of St. Thomas, wrote a response to the book written by Professor Laurence Tribe and attorney Joshua Matz entitled “To End a Presidency: The Power of Impeachment,” in an article published in the Harvard Law Review: “To End a (Republican) Presidency.”  Tribe and Matz’s book attempts to establish the proper standard for impeachment. In his article, Paulsen complains that Tribe and Matz set forth an overly restrictive standard, by introducing an elements which lack textual support: 1) that the President use formal powers of his office to further wrongdoing; 2) that he is not viable as a national leader; and 3) that he “pose[s] a prospective danger of grave harm for which there is no alternative short of removal.” Paulsen claimed, additionally, that Tribe and Matz’s analysis had an unacceptably partisan slant.

Tribe and Matz wrote a strong response to Paulsen published in the Harvard Law Review forum, in an article entitled “To (Pretend to) Review our Book.” It that response they refuted that their book was aimed at partisan ends. Rather, they sought to end the tendency to jump so readily to talk of impeachment by “[emphasizing] realism over fantasy.”  They wrote “impeachment is neither a magic wand nor a doomsday device. Instead, it is an imperfect and unwieldy constitutional power that exists to defend democracy from tyrannical presidents.” It is for this reason they offer a more restrictive definition, about which Paulsen’s complaints were unfounded.  First they deny that they asserted it was necessary for the President to use his office for an offense to be impeached, and though they admit to the second two requirements, refute that they lack textual support. Rather, they are borrowed from Professor Charles L. Black, Jr.’s canonical study, Impeachment: A Handbook, in which he writes:

Many common crimes–willful murder, for example–though not subversive of government or political order, might be so serious as to make a president simply unviable as a national leader; I cannot think that a president who had committed murder could not be removed by impeachment. But the underlying reason remains much the same; such crimes would so stain a president as to make his continuance in office dangerous to public order. Indeed, it may be this prospective tainting of the presidency that caused even treason and bribery to be made impeachable.

There is, of course, more substance contained in the articles themselves. For an interesting debate on the subjects of originalism and partisanship in the formation of an impeachment standard, readers should visit the links above.

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Resurrecting Justice Curtis’ Argument

26 Wednesday Dec 2018

Posted by crosbysamuel in Articles, Uncategorized

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Collusion, donald trump, Frank Bowman, harvard law school, high crimes without law, Impeachment, interpretation, joshua matz, justice benjamin curtis, lawrence tribe, Mueller, nikolas bowie, voter fraud

Nikolas Bowie, Assistant Professor at Harvard Law School, wrote in an article for the Harvard Law Review Forum, entitled “High Crimes Without Law,” a dissent to the popular view that impeachable offenses need not be violations of existing law. This argument was first made by Justice Benjamin Curtis, who left his post with the Supreme Court  in the wake of the Dred Scott decision, and subsequently agreed to represent President Andrew Johnson in his impeachment proceedings. Johnson was impeached, in part, for inflammatory speeches given in protest of Congress’ anti-slavery legislation.

Curtis argued that the “high crimes and misdemeanors” warranting impeachment are defined as high crimes committed against the United States, made illegal by laws of the  United States. He supported this argument with three points: “first, a textual argument that the phrase “high Crimes and Misdemeanors” refers to something analogous to treason and bribery; second, a structural argument that impeachment proceedings are criminal trials; and third, a structural argument that Congress could not use impeachment proceedings to subvert the constitutional prohibitions against ex post facto laws and bills of attainder.” Bowie explores these arguments in detail, and then proceeds to respond to modern counter arguments, such as those professed by Professors Laurence Tribe and Joshua Matz. The primary difference between Curtis’ interpretation and that of Tribe and Matz’s more expansive definition is in the way they define impeachment, as either a criminal or civil process; Tribe and Matz argue that impeachment is a civil proceeding not requiring the constitutional protections of a criminal proceeding. Interested readers should follow the link above for a more detailed overview of Bowie and Curtis’ argument.

As a note, even if Curtis’ interpretation is correct, and impeachment only applies to crimes enshrined in law, that does not necessarily let President Trump off the hook. The voter fraud for which he has been very nearly implicated by Mueller’s investigation, may well be a criminal violation. Professor Bowman weighed this possibility in his latest post, though he would disagree with Bowie and argues that violations of existing law are not necessary for impeachment. Said post can be found here.

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
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