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 baseless – claim 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.