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Impeachable Offenses?

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

Impeachable Offenses?

Tag Archives: Congress

Is Mueller Almost Finished?

21 Thursday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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28 CFR 600, attorney general, Bill Barr, Collusion, confidential, Congress, discretion, donald trump, impeach, impeachable, Impeachment, investigation, Obstruction of Justice, president, privelege, report, Robert Mueller, russia, Special Counsel, subpoena, trump, William Barr

CNN Reported today that Special Counsel Robert Mueller may conclude his investigation as early as next week. Their information apparently came from sources familiar with Attorney General Bill Barr’s plan to announce the completion. But! Don’t get too excited. Though Mueller’s report may be finished soon, that doesn’t mean the public or Congress will get to see it.

The regulations which govern Special Counsels are contained in part 600 of title 28 of the Code of Federal Regulations. 28 CFR 600.8 says that when Mueller gets done, he needs to send his final product off to the Attorney General, Bill Barr. 28 CFR 600.9 says that Barr only has to tell Congress 1) that Mueller is done; and 2) if he disagreed with any of Mueller’s suggested actions because they were “inappropriate and unwarranted,” and an explanation of that conclusion. So what we’ll find out is, for the most part, at Barr’s discretion. However, Barr told Congress during his confirmation hearing that he intends to release his own summary of the report, and will be as transparent as possible within the confines of the law (for a thorough analysis of Barr’s statements, click here). If Barr releases less than what Congress would like, their remedy is a subpoena.

william-barr-nomination-hearing.jpgKevin Lamarque/Reuters

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The National Emergency; He’s Done It

16 Saturday Feb 2019

Posted by crosbysamuel in Articles, Uncategorized

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abuse, border wall, Congress, constitutionality, Democrats, Frank Bowman, immigration, impeach, impeachability, Impeachment, invasion, national emergency, national emergency act, power, president, president donald trump, Republicans, senators

President Trump has declared a national emergency to help fund the construction of his border-wall between the United States and Mexico. The move could potentially increase funds from the $1.35 billion authorized by Congress to $8 billion, in part borrowed from Defense spending. Trump has simultaneously categorized the emergency as necessitated by the “invasion” from the south and admitted that he just wants to get the job done faster. Mixed signals such as these, as well as the general nature of what has been dubbed the President’s “vanity project,” have caused many to label Trump’s action as an abuse of his authority.

Professor Frank Bowman previously considered and wrote about the impeachability of Trump in light of such a flagrant declaration of national emergency. His post should be read in full and can be found here. However, to borrow from his conclusion, he wrote that whether such an action is impeachable depends in part on signals of its unconstitutionality. These signals can come in two forms: 1)  a majority vote in both houses of Congress to undermine Trump’s declaration; and 2) a decision by the Supreme Court that Trump’s action is unconstitutional.

Though both high hurdles, neither signal is impossible. It should be noted that several Republican Senators and Representatives have already spoken out against Trump’s declaration. Additionally, the first suit to challenge the constitutionality of the decision has already been filed by Public Citizen.

donald-trump-ap-01-jpo-190215_hpMain_16x9_992.jpgSusan Walsh/AP

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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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The Social More-ing of the Executive and Legislative Branches

27 Saturday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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after the trump era, Congress, constitutional standard, DACA, Deferred Action for Childhood Arrivals, donald trump, georgetown journal, hyperpartisan, immoral, impeach, neil s. siegel, president, shutdown, trump

Is there a constitutional defense against members of the Executive and Legislative branches that act not illegally, but immorally? Constitutional scholars have recognized this possibility for judges, but would leave it to the political process to take care of the rest of the branches. Neil S. Siegel, in his article After the Trump Era: A Constitutional Role Morality for Presidents and Members of Congress,  published in the Georgetown Law Journal in its October, 2018 Edition, argues that the moral constitutional standard applied to judges should be extended to presidents and congressmen as well. Here is an excerpt from his article:

Meanwhile, the federal government itself is becoming even more dysfunctional as elected officials increasingly disregard norms that previously constrained partisan competition; more often than not, elected officials are unable to cooperate across party lines to execute the basic responsibilities of the federal government. Examples abound. The confirmation process for Supreme Court Justices has become a hyperpartisan, destructive race to the normative bottom. A Republican Senate approved highly consequential tax legislation without any Democratic input or even a single hearing, let alone the traditional process of “multiple congressional hearings, proposed statutory language and detailed reports from the tax-writing committees, all prepared well in advance of any vote” and “with the assistance of [Joint Committee on Taxation] staff and with the input of Treasury Department experts.” In addition, Republican President Donald J. Trump routinely flouts norms and conventions of proper governmental behavior that previously constrained presidents of both parties. The Democrats, for their part, held up urgent funding legislation in order to extract a deal that would offer a path to citizenship to beneficiaries of the program known as Deferred Action for Childhood Arrivals (DACA); a shutdown of the federal government ensued. Three characteristics of the problems discussed above stand out. First, they mostly implicate the convictions and conduct of the public and the political branches, not the courts. Second, they concern mindsets and behavior that, although troubling, are not potentially unconstitutional or otherwise illegal. Third, that behavior, even where not potentially unconstitutional or otherwise illegal, raises concerns that are properly denominated constitutional in the broad sense that they appear to call into question the long-term health of the American constitutional system.

000_HZ8ZT-e1478828415397.jpgAFP/Nicholas Kamm

 

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Kavanaugh, Kavanaugh, Kavanaugh

10 Tuesday Jul 2018

Posted by crosbysamuel in Articles, Uncategorized

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appointed, Congress, immunity, impeach, indictment, judge, justice, kavanaugh, kennedy, law, law review, minnesota, Mueller, pardon, roberts, shield, sitting, suit, trump

Have you heard? A new Supreme Court Justice has been appointed. His name is Brett Kavanaugh, he hails from the U.S. Court of Appeals, D.C. Circuit, and he’s got Democrats a little bit nervous. Why? Because they think he may try to shield Trump from the Mueller investigation.

Kavanaugh argued in an article written for the Minnesota Law Review in 2009 that sitting presidents should be immune from civil suit and criminal indictment. He cited the investigation of Clinton as a reason for this view, and has implied “that the Starr investigation distracted Clinton from focusing on Osama bin Laden.” Some find this view alarming — however, take a deep breath. As Noah Feldman points out, in an article published by Bloomberg Law, what Kavanaugh actually suggests is that Congress should pass a law that would protect the President. Inherent in that suggestion is an admission that the Supreme Court does not have the power to immunize the President itself. So worries that the Justices may, for instance, enjoin Mueller’s invesitgation, are probably unfounded.

That being said,  that doesn’t mean Kavanaugh cannot be of use to the President in other ways. Kavanaugh may rule that the President can pardon himself, as Trump has suggested in the past. Alternatively, Congress may just take Kavanaugh up on his suggestion and pass a law immunizing Trump. Much remains to be seen.

1200x-1.jpgAl Drago/Bloomberg

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The Travel Ban, Constitutionality, and Impeachment

28 Thursday Jun 2018

Posted by crosbysamuel in Articles, Uncategorized

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Articles, ban, Congress, Green, Impeachment, muslim, president, Representative, resolution, roberts, sotomayor, supreme court, travel, trump

The Supreme Court held, yesterday, that the Trump Administration’s travel ban had “sufficient national security justification to survive a rational basis review,” and that therefore it would reverse the preliminary injunction granted by the District Court. This is an indication that the travel ban is constitutional, and allows it to go forth unhindered, at least for the time being. Because the travel ban has been cited in at least Representative Green’s impeachment resolution as evidence of the President’s “bigotry,” one might wonder what effect this decision will have on the President’s chances of impeachment.

While it could be argued that the Supreme Court decision could set some, perhaps ethereal, precedent, it is still Congress that decides whether the President will be removed. And while the Supreme Court’s decision could in some way be construed as an endorsement of the executive order, so too can Justice Sotomayor’s dissent remind Congress of the reason the travel ban was cited as an impeachable offense in the first place:  “[the] appearance of discrimination that the President’s words have created.” Though Trump’s “muslim ban,” may have been rolled back enough to be constitutional, it can still evidence the  President’s bigotry, and therefore could still contribute to his impeachment.

ap_18115517534302_custom-de2433708c26b21f70c27b24fa1da4764a5b7a5d-s1600-c85.jpgAndrew Harnik/AP

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The Western Alliance Totters: From Congress, Silence

11 Monday Jun 2018

Posted by impeachableoffenses in Uncategorized

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Congress, G-7 meeting, Library of Congress, trump

By Frank Bowman

I’ve been in Washington these past few days, burrowed in at the Library of Congress researching English impeachments for a chapter in my upcoming book on Impeachment in the Age of Trump (University of Cambridge Press 2019).  Sitting in the Main Reading Room of that astounding institution — both a breathtakingly beautiful building and perhaps the greatest repository of knowledge in human history — during the events of the past week or so has both inspired and deeply depressed me.

The United States is a great nation, not merely because of its great size and abundant resources, its fortunate geographic insulation in its formative years from the wars of Europe, or even its thriving economy and powerful military.  What has made America great — in a sense Donald Trump will never understand — has been the accretion over two-and-a-half centuries of many foresighted, large-minded decisions grounded in a belief in democratic government and human possibility. At any given moment in our history, we like every people will be found making mistakes, sometimes even violent and vicious ones, but the throughline has been reversion to a mean of remarkable wisdom and generosity.

The Library of Congress is but one among many monuments to our happy inheritance.  A place where, long before there was a thing called the internet, Congress decreed that virtually all the knowledge in the printed universe would be gathered under a single roof.  The impetus for this creation is, in the present moment, even more remarkable than its execution.  Congress created a library for itself because it recognized that making sound policy for a nation required knowledge, and it wanted all the available knowledge at its immediate call.  And then Congress decided something even more remarkable — that all the knowledge it was gathering for its own use should be freely available to the citizenry.  Because they deemed an informed and educated citizenry as essential to the operation of a democratic republic as an informed legislature.

These were quintessentially American choices.  I will not say that no other nation has ever made similar ones.  Certainly most of the democracies in what we, with increasing anachronism, have referred to as the West have, at least at some points in their histories, arrived at similar conclusions and created similar institutions. But in America, the dedication to political choice informed by knowledge, study, and reflection by both leaders and citizens has been central to our identity since our beginnings.

Sitting in the Library of Congress and drawing on its treasures inspires awe and gratitude for the good fortune of living in this marvelous country.

But, at the close of a day in the cocoon of our brilliant past, one emerges and looks across the street at the U.S. Capitol.  There it stands, its classical forms massive and inspiring, but a moment’s reflection on those who now inhabit the place can only plunge an American patriot into gloom.

It is literally inconceivable that today’s Congress would imagine or vote to maintain a Library of Congress if it did not already exist.  And every day, that once-august body betrays the ideals upon which the Library was founded and long maintained.  Both Houses are presently controlled by a party aggressively uninterested in knowledge, particularly knowledge that might threaten the short-term political interests of its members or the transitory prejudices of its “base.”  That same congressional party is now in thrall to an administration even more actively determined to suppress inconvenient knowledge.  More particularly, that party has apparently surrendered even its own capacity for independent thought to a president who is both utterly ignorant in virtually every sphere of science, technology, history, and economics, and proudly determined not to learn anything new, even when the safety and prosperity of the country depends on it.

Yesterday, Mr. Trump effectively spat on both the Western military alliance and the world economic architecture that have together maintained peace among the great powers and been the foundation of American economic prosperity since 1945. His boorish, petulant, bottomlessly ignorant performance was only the latest in a series of mindless assaults on global institutions created by generations of American statesmen, Republican and Democrat, wise enough to recognize that America thrives, not as a selfish bully, but as the keystone of an international structure of mutual benefit.

This is not a partisan judgment.  Before November 2016, while there would have been disagreements about details, no serious national political figure doubted that the NATO alliance, a strong and unified Europe, cordial trading relationships with our North American neighbors, and an existing world economic order markedly attuned to American needs were all fundamentally beneficial to the United States.  Indeed, these ideas and institutions were, if anything, more firmly embraced by Republicans than Democrats.

And yet, the response from the Congressional Republicans to Trump’s steady destruction of a world order from which this country benefits so profoundly has been … silence. There have been occasional mild bleatings of disapproval at one or another particularly obnoxious Trumpian utterance.  But the bleats have come almost exclusively from legislators who have decided not to run again, or in the case of John McCain, a man whose heroic struggle against death will, sadly but inevitably, preclude any future electoral contests.

Remember that the Founders imagined Congress as the dominant player in American government.  And remember that, even though since the early 20th Century Congress has steadily ceded much power to the presidency, Congress retains ample constitutional authority to thwart any chief executive if it chooses to use that authority.

But the Republican party which now commands Congress has instead meekly abandoned virtually everything it professed to believe about America’s relations with the world.  It would be one thing if this about-face were the result of a revolution in economic or political thought stemming from careful study of all the knowledge carefully stored in the great Library across the street from our congressmen’s offices.  Intellectual revolutions do happen.  And they are sometimes profoundly beneficial.

But we all know that nothing of that sort has occurred.  Instead, Republicans have simply bowed to the demonstrably irrational whims of their vapid puppet master.  Individually and collectively, they quake and cower, as the world America built crumbles.  Perhaps the most maddening feature of the Republicans’ moral collapse is that it does not even come in the service of a definable new world order.  Even the evils of the great 20th century dictatorships in Germany, the Soviet Union, and China were inflicted by servants of articulable, if twisted, ideologies.

There is no new ideology at work in Trumpism.  No plan. No thought. No rational end state.  Everything that now happens at the pinnacle of American government is simply that day’s whim of a bloated, narcissistic fool.

And congressional Republicans know this as well as you or I.  Yet they do nothing.

Lest it be thought that all blame devolves on the Republicans, congressional Democrats bear their share, however much diminished by their minority status.  While I recognize that Democrats cannot pass legislation on their own, as a group they seem to me remarkably quiet at a time when our circumstances call for unceasing, intelligent, forceful resistance to the daily outrages of the president and his minions.

History will not be kind either to the overt cowardice of congressional Republicans and the tactical meekness of congressional Democrats.  This feckless Congress is not the institution the Founders imagined, past generations celebrated, or the present generation desperately needs.

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Limiting the Removal Power

28 Monday May 2018

Posted by crosbysamuel in Articles, Uncategorized

≈ 1 Comment

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appointment, Comey, Congress, director, FBI, hamlin, impeachable offenses, Impeachment, limit, power, removal, trump

Qualified Tenure: Presidential Removal of the FBI Director is an article written by Leah A. Hamlin which was published in the Ohio Northern University Law Review. It addresses the question of whether the President’s power to remove an FBI director is limited by the 10-year term instituted by Congress, and whether it may, constitutionally, be further limited by Congress. Hamlin ultimately concludes:

that the ten-year term does not limit the president’s ability to remove the director at will, and that, given the importance of the FBI director to the effective functioning of a unitary executive, Congress may not limit the president’s removal power without infringing on the separation of powers limits laid out in case law.

This question is especially significant, of course, in light of the firing of James Comey which was met with such outrage, and which some believe could constitute obstruction of justice.  Though Hamlin concludes that Congress cannot not interfere with the President’s removal power, it is doubtful that her conclusion would extend so far as to suggest that Congress could not wield its impeachment power in wake of a removal which constitutes a high crime or misdemeanor.

gettyimages-694398560.jpgThe Washington Post/Getty Images

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The Destruction of Congress

23 Wednesday May 2018

Posted by impeachableoffenses in Uncategorized

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Andrew Wray, Congress, Devin Nunes, FBI spy, Trey Gowdy

By Frank Bowman

I have already remarked on the absurdity of Mr. Trump’s latest assault on the FBI and the Department of Justice — the claim that a “spy” was planted in the Trump campaign by nefarious anti-Trump deep state actors. The allegation is bad enough, but Trump’s demand that the Justice Department both investigate it and disclose confidential information about an ongoing investigation is worse.  That Mr. Trump would promote this pernicious nonsense is, sadly, unsurprising.  But dangerous though this behavior is, one might be able to console oneself with the thought that Trump is a uniquely twisted soul whom the country will have an opportunity to vote out of office no later than 2020.

The more troublesome aspect of this story has been the response of the Republicans in charge of Congress, particularly those in the House.  There is much to be said on this score, but today I’ll focus on just one point.

The White House has demanded that FBI Director Andrew Wray and a Justice Department representative produce material related to supposed FBI misconduct at a meeting to be attended by only two legislators — Republican Congressmen Devin Nunes and Trey Gowdy.  No senators were invited (although three Republican senators have requested to be included.)  And no Democrats from either house are to be allowed to be present or see the material.

In the era of Trump, we have so often had occasion to declare things “unprecedented” that the term is losing all effect.  But this is truly unprecedented.  Congress has investigated presidents and federal agencies many times.  Oversight is a key congressional function.  Some of those investigations have surely had partisan objectives.  But even when the majority party in one or both houses embarked on investigations it hoped would pay political dividends, congress acted as a body.  The majority party gets more members on the investigative committee and often more support staff.  But both parties participate in the investigation, have access to all the relevant materials, and have a full opportunity to debate the evidence, vote on any conclusions, and publicize disagreements with any final conclusions.

I am old enough to remember the spirited, but procedurally meticulous and scrupulously even-handed, debates in the Senate and House committees investigating Watergate.   The senators and representatives of that era demonstrated what it means for Congress to be a democratic, representative, deliberative body and their work stands in proud contrast to the tawdry behavior of the current Republican-dominated gaggle.

The spectacle we are witnessing here is the collapse of Congress as a co-equal branch of the American government.  It is not merely that a subset of Republican House members have eagerly signed on to protect Donald Trump by promoting conspiracy theories.  There will be unprincipled, intellectually dishonest, opportunists in any age and any party.  The horror is that the institutional leadership in both House and Senate has supinely acquiesced in this vicious foolishness.

I say foolishness because, even for the congressional Republican party, this is astoundingly shortsighted behavior.  Do Republicans imagine that they will retain their majority forever?  And do they imagine that Democrats, having been treated as, in effect, a party of traitors unworthy of viewing and deliberating on evidence of supposed law enforcement corruption, will not respond in kind when the wheel turns?  Forbearance by the Democrats would require more than human rectitude.

All of this is, or should be, achingly obvious to Republican congressional leadership.  But in neither house has the leadership done any leading whatsoever.  This should perhaps be no great surprise given that, in the Senate, majority leader McConnell has been an innovator in destroying the collaborative traditions of the Senate, and in the House, the Republican leadership since Dennis Hastert has effectively ruled out all cross-party legislative efforts.  But even these blinkered partisans should exhibit either some appreciation of the historical role a strong, deliberative congress plays in American government or at least some miniscule degree of foresight concerning the retribution their own party will inevitably suffer.

If and when the wheel does turn and Republican congressmen reap what their confederates have sown, I will not shed a tear for them.  They and their party will deserve every humiliation heaped upon them

But we should all weep for the lasting damage these thoughtless partisan Republicans are wreaking on Congress as an institution.  A congress in which distrust is so deep that legislators of one party are unwilling even to share information with the other party and debate with them openly on matters of public importance is a failed body.  And failure at that fundamental level will, in the most optimistic scenario, take many years to repair.  It may not be repairable.

We should all remember that a functioning congress is the beating heart of American democracy.  If it devolves into nothing more than a venue for factional warfare, our form of government is genuinely doomed.

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Trump won’t be Indicted

17 Thursday May 2018

Posted by crosbysamuel in Articles, Uncategorized

≈ 1 Comment

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Congress, Impeachment, indicment, investigation, Mueller, president, report, rudolph giuliani, trump

Rudolph Giuliani claims that he has it on good authority that Mueller will not indict President Trump; and the Washington Post says that there is good reason to believe him, because the Justice Department guidelines say that he can’t.  This question has been examined by Professor Frank Bowman on this blog; and he pointed out that the question, as far as Mueller goes, is not whether an indictment will occur, but whether Mueller will recommend that Trump be indicted. Bowman proposed that this recommendation may come in two forms; that Trump be indicted after his presidency, or that he be indicted immediately. The latter recommendation, even if doomed to fail, will potentially have the same effect as the former recommendation: Mueller’s report will reach Congress and lead to impeachment.

180503095830-01-rudy-giuliani-file-exlarge-169.jpgCarolyn Kaster, AP

 

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Frank O. Bowman, III


Floyd R. Gibson Missouri Endowed Professor of Law
University of Missouri School of Law

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