February 9, 2018
The Week in Impeachment: 2/3/18 — 2/9/18
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 address a couple letters to Washington.
This week, the president repeatedly, and to our country’s substantial harm, violated three of his major constitutional duties: those of the “Take Care” Clause (which requires that he take care to faithfully execute the law, and includes his responsibility for “the overall conduct of the executive, which the Constitution vests in him alone,” ensuring “that the executive is so organized and operated that this duty is performed”) and his oath (which requires he both “faithfully execute the Office of President of the United States” and “preserve, protect and defend the Constitution of the United States”), which includes more than not abusing his powers, more than not violating citizens’ rights — he also must not act “in derogation of powers vested elsewhere by the Constitution.” These quotations come from a 1974 House Judiciary Committee report on constitutional grounds for impeachment.
When the President interferes with witnesses who may testify in the judicial system, or with investigations that may lead to prosecution and indictment in court or before Congress, he is in derogation of the Judicial branch, violating his constitutional duties. And when he seeks to exercise Congressional powers to wage a “preemptive” act of war, he violates the separation of powers, acting in derogation of the Legislative branch.
Importantly, Congress need not prove any constitutional violation to proceed with impeachment. Negligence or intentional causes of substantial harm remain the key to impeachability. And this week, presidential incompetence and negligence again dominated headlines, as Trump enhanced the risk of global catastrophe.
This week, the president repeatedly, and to our country’s substantial harm, violated key constitutional duties arising from both his oath of office and the “Take Clare” Clause. His misconduct this week also interfered with the administration of justice and enhanced the risk of global catastrophe.
First Charge: Violation of the oath of office and the “Take Care” Clause
This week, the news has provided ample evidence that the president, both personally and through appointees for whose conduct he is liable, violated his constitutional duties.
Examples this week:
- Trump’s CIA director, Mike Pompeo, held meetings with his Russian counterpart, Sergey Naryshkin, despite 2014 sanctions that prohibit Naryshkin from entering the US. The CIA offered no compelling explanation; he claimed his goal had been to “keep Americans safe.” Instead, he played into Russian motives to “portray the US as being open to conducting business as usual.” (Source)
- The Trump Administration missed a deadline to impose new sanctions on corporations and governments that contract with the Russian defense and intelligence sectors, falsely claiming that measures already in place had obviated all such penalties. Representative Maxine Waters called the claims both “preposterous” and “baffling,” singling out the failures of Secretary of State Rex Tillerson and Secretary of the Treasury Steven Mnuchin to adequately inform the president of sanctionable behavior by those actors. (Source)
- As Trump came to power, his close advisor Steve Bannon promised the “deconstruction of the administrative state”; many now worry that Trump is continuing apace toward that goal. Stuart Shapiro, the director of Rutgers University’s Bloustein School of Planning and Public Policy, wrote that the president had “asked Congress to make it easier for him to fire federal government workers. But doing so would reverse more than 100 years of American policy and would make the American form of government seem much more like authoritarian regimes across the world.” (Source)
- Federal agencies are now routinely meeting with advocates of the industries they are supposed to be regulating, and recusal requirements are being ignored, as when a Koch Institute lobbyist who had been employed by the Corn Refiners Association as recently as last year was granted a waiver to participate in the creation of official Dietary Guidelines for Americans on the grounds that he possessed “expertise in the process.” (Source)
- In the first publicly known movement of federal tax dollars into Trump’s private business holdings, news media revealed that the General Services Administration, which acts as landlord to the Trump Hotel in DC, has been reimbursing government employees for expenses incurred at the hotel. (Source)
Second Charge: Interference with the administration of justice
The president, negligently and, perhaps, wantonly (although Congress has no burden to assert or prove the president’s state of mind), created great harm by interfering with the administration of justice, and violated the separation of powers. The Executive Branch intrudes upon the powers of both Congress and the judiciary, for example when the President attempts to influence or discredit witnesses, and equally when he refuses to enforce laws duly passed by Congress. The president causes immense harm by his maladministration, reducing the capacity of federal officials such as 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 authorized the release of a highly politicized congressional memo, attacking the FBI while blatantly serving his own interest in quashing a federal investigation that could lead to his impeachment and even prosecution. (Source)
- Amid what members of Congress, the FBI, and Justice Department call misleading analysis and omissions in the now-infamous “Nunes memo,” news media uncovered evidence that the document’s central figure, former campaign official Carter Page, was working as an advisor to the Kremlin as early as 2013. (Source)
- The president defended the release of the memo with false claims that continued his attacks on the FBI and apparent efforts to undermine the investigation into Russian attacks on the US electoral process and possible Russian collusion with his own campaign. (Source)
- Numerous lawmakers knowledgeable in classified background material have called out the release of the memo for its failure to provide a complete picture of the relevant intelligence, describing it as “deliberately misleading.” More still—including the Republican Speaker of the House—have called for the release of additional information to help contextualize it. (Source, source, source, source)
- In response to the backlash from legislators, President Trump continued verbally castigating government employees—and potential witnesses against him—in public, visiting great damage on the presidentially-acknowledged “sacred investigative process” of law-enforcement. (Source)
Third Charge: Enhanced risk of global catastrophe
There can be little doubt that substantially increasing the risk of global catastrophes—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 White House continues to move toward an aggressive, and likely war-provoking, policy towards North Korea, sidelining relevant diplomats and alarming government agencies, such as the Pentagon. (Source)
- Eighteen senators wrote a group letter to the president, explaining that they are “deeply concerned about the potential consequences of a preemptive nuclear strike on North Korea and the risks of miscalculation and retaliation.” They added that “without congressional authority, a preventative or preemptive US military strike would lack either a constitutional basis or legal authority.” (Source)
When President Trump recently accused Democratic lawmakers who had insufficiently applauded his speech of “treason,” he showed his ignorance of the Founding Fathers’ narrow and precise definition of treason, which they crafted for the US Constitution in response to centuries’ worth of British kings’ use of the now-obsolete, broadly-defined British law of treason to punish enemies of the Crown.
That narrowness of the US Constitution’s definition of “treason,” in turn, is what prompted the Founders to add the special phrase “high Crimes and Misdemeanors” to the concepts of “treason” and “bribery” as the mainstay ground for impeachment in the United States.
The phrase “High Crimes and Misdemeanors” is a term adapted from British law, meaning the maladministration of a high officer posing serious harm to the nation. For Congress to successfully impeach, they need absolutely no showing of ill intent — impeachment is not a criminal process; this also means that ignorance of the law is not an excuse.
At present, the president is following a continuing course of maladministration, and working continuous, substantial harm against the interests of the United States and its people. There exist ample grounds for his impeachment.
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!