February 2, 2018
The Week in Impeachment: 1/27/18 — 2/2/18
by Barbara A. Radnofsky
In this weekly series, The Week in Impeachment, Barbara A. Radnofsky, author of A Citizen’s Guide to Impeachment, takes a look at some of the potentially impeachable executive behavior that’s made headlines over the past seven days. Read it, then figure out how long it’s been since you called your congressperson.
This week, we’ll be looking at three of President Trump’s behaviors that could give rise to impeachment charges through the harm they create: enhanced risk of global catastrophe, oppression, and interference with the administration of justice.
First Charge: Enhanced risk of global catastrophe
There can be little doubt that substantially increasing the risk of global catatrophes—including those of such scale that they actually threaten the continuation of human civilization—constitutes impeachable harm in the most immediate and resonant sense.
Examples this week:
- The board of the Bulletin of Atomic Scientists has moved its well-known Doomsday Clock forward to 11:58 pm (closer to midnight than at any point since 1953), citing Trump’s “waffling” on whether the US would meet its NATO commitments to defend European allies, sabre-rattling with North Korea, failure to fill numerous appointments including to the National Nuclear Safety Administration, dismissal of scientists who had been providing vital information to numerous federal bureaus including the Environmental Protection Agency, and more. William Perry, who served as secretary of defense under Bill Clinton, is quoted as saying that “the threat of nuclear disaster has grown beyond the risk we faced during the darkest years of the Cold War.” (Source)
- The president exhibits both a profound ignorance and a total lack of credibility with regard to ecological issues, failing to differentiate between the discrete phenomena of “climate change” and “global warming,” and claiming that polar ice caps are “at a record level,” when in fact federal agencies have produced data showing them to be at their lowest-ever documented levels. (Source)
Second Charge: Opression
As I wrote last week, Trump is susceptible to charges of oppression on the basis of what’s sometimes been called the “Trump Effect,” the promotion of oppression, animus, and even violence on the basis of race, nationality, gender, or sexuality, as well as attacks on the freedom of the press.
Examples this week:
- The president has refused to apologize for using his international platform—probably the world’s largest and most influential—to promote anti-Muslim videos from a fringe-right UK hate group. He came no closer than to proclaim his own ignorance—which, as described above, offers no defense in the impeachment context. (Source)
- In a stunning insult to the US’s closest ally, and a show of profound ignorance, Trump told British Prime Minister Theresa May that he would visit the UK only if she first banned protests against him, and was rebuffed with the understatement that the proposed action was not the way things work in Great Britain. (Source)
Third Charge: Interference with the administration of justice
Unlike in federal criminal proceedings—for example, a trial for obstruction of justice—impeachment is a non-criminal process, and does not require a showing of intent; harm worked through negligence, ignorance, or incompetence provides grounds for impeachment as solid as harm worked deliberately. Thus, the president’s political and legal inexperience do nothing to insulate him from allegations that he has done harm by interfering with the impartial administration of justice — universally a hallmark of democratic government.
The harms arising from this conduct are many, and include violation of the separation of powers between Congress and the Judiciary (in his attempts to influence or discredit witnesses, and equally in his refusal to enforce laws duly passed by Congress), reducing the capacity of federal officials like FBI agents to perform their law enforcement jobs in the field, relinquishing efforts to protect our electoral system from further attacks (which includes creating the risk that evidence will be lost, augmenting the initial harm), subverting the rule of law, and creating an unnecessary constitutional crisis.
Examples this week:
- The president has sought to curb an investigation into his conduct by Special Prosecutor Robert Mueller, under conditions the Justice Department has categorized as “extraordinarily reckless.” He has reportedly expressed deep frustration that operatives he calls “my guys” at the agency he calls the “Trump Justice Department” are legally constrained from directly implementing his directives. (Source)
- Legislative officials from both parties have called out the obviously partisan and incomplete nature of the information in the memo, highlighting additional ways in which it does harm. As Senator Dianne Feinstein said in a statement, “There’s no excuse for playing politics with highly classified information. The president shouldn’t place personal or partisan interests above our national security.” (Source, Source)
- Multiple sources have confirmed that president ordered the firing of Special Prosecutor Mueller, backing down only when White House Counsel Donald F. McGahn II threatened to quit rather than comply. (Source)
- The president has additionally undercut his credibility and the appearance of legal compliance by repeatedly denying the now-confirmed story of his attempt to fire Mueller, effectively delaying a congressional investigation and magnifying the harm arising from his attempts to remove Mueller. (Source)
- He has impeded the capacity of three FBI officials to perform their duties by targeting and undertaking to discredit them, apparently because they appeared to be key witnesses in the Mueller investiation. (Source)
- The president’s attempts to discredit federal officials are already providing cues to sympathetic news media, which amplify the message conveyed through his misconduct and worsen the harm it causes. (Source)
- High-ranking law enforcement officials fear that the president and his supporters’ abusive rhetoric around the FBI is already diminishing public cooperation with the Bureau and compromising the operations of field agents, according to high-level officials both current and recent. (Source)
- As the president seeks to hamper investigations into foreign interference in the 2016 election, new evidence continues to appear, continually fleshing out the total harm caused by that interference, and thus encouraged by his obstruction. (Source)
- Trump’s state department has refused to enforce sanctions on Russia that were overwhelmingly approved by Congress and signed by the president himself, citing reasons so ill-considered and flimsy as to be implausible. They did so in the face of increasing evidence that Russia continues to interfere in US elections. Trump’s failure to enforce the duly passed law is a breach of his constitutional duty to take care that the law be faithfully executed. (Source)
Based on precedents in the writing of Alexander Hamilton and in the Articles of Impeachment against both Richard Nixon and Bill Clinton, President Trump is now liable via impeachment for acts and omissions he has taken, regardless of his underlying intent, “to the manifest injury to the society, people, constitutional system, government, and interests of the United States, undermining confidence in and the integrity of the Presidency and Executive Branch, bringing disrepute on the office, betraying his trust as president, and acting in a manner subversive of the rule of law and justice and degrading to the honor and dignity of the United States.”
Barbara Ann Radnofsky is a mother, wife, teacher, mediator and arbitrator. A lawyer since 1979, she was the first woman Texas Democratic U.S. Senate nominee and later the first woman Texas Democratic Attorney General nominee. A magna cum laude graduate of the University of Houston and the University of Texas School of Law, she was honored as the Outstanding Young Lawyer of Texas in 1988 and has been listed for more than 25 years in “Best Lawyers in America" in multiple areas. She lives in Houston, where she is one of many co-owners of the Brazos Bookstore, and is the author of A Citizen’s Guide to Impeachment, available now. Follow her at @TXBarbaraAnn!