April 6, 2018
The Week in Impeachment: Negligence is impeachable, FYI
by Barbara A. Radnofsky
This week brought mounting evidence of presidential negligence, incompetence, and instability, along with speculation as to whether the president would move from the “subject” of a criminal investigation to being its “target.” This highlights an emerging presidential defense: the president will claim he intended no crime, no lawbreaking, no collusion, oppression or endangerment of national security. The claims of “no intent” may ultimately bolster his defense against criminal charges — but they imperil his defenses against impeachment charges, because impeachment requires no intent. Impeachment focuses on harm to our country, our people, and our system of government, and not on the mental state of the official creating that harm.
Here are unintentional—indeed, witless—impeachable acts in which the president engaged this week.
First Charge: Dangerous, oppressive negligence, ignorance, incompetence, and incapacity in immigration policy
- The president proved himself ignorant of the DACA program. When the New York Times’ Katie Rogers approached him on Easter morning to ask “what he meant by no DACA deal,” he responded by saying, “A lot of people are coming in because they want to take advantage of DACA. The Democrats blew it.” Toronto Star reporter Daniel Dale explained, “This makes no sense. To be eligible for DACA, people had to have been living in the US since 2007. Nobody who arrives now would be covered by the program even if it wasn’t being terminated. Nor would they be covered by any of the citizenship deals on the table in Congress.” (Source)
- Senator Dick Durbin bluntly decried the President’s escalation of “tension, fear and hatred” in immigration; the senator remained willing to negotiate on immigration but said it is difficult. Of Trump, he said, “He is unreliable. He is unprepared. And he is unstable.” (Source)
Second Charge: Negligence in staffing, oversight, and threat monitoring that leaves the US and its citizens vulnerable to ongoing cyberattacks from foreign governments
- Former Trump adviser Michael Flynn, who pled guilty in the Mueller probe to lying about his conversations with Russian officials, disclosed last August that he was also a paid adviser to Cambridge Analytica affiliate the SCL Group. (Source)
- Trump adviser Steve Bannon was a vice president at Cambridge Analytica from 2014 to mid-2016, when he joined the Trump campaign as its chairman; presidential supporters the Mercer family (who invested $15 million in the new company with Russian ties) rewarded Bannon with a board seat and stake. (Source)
- The danger from foreign governments’ ongoing attacks on our nation’s infrastructure and our voter rolls, databases, and systems has been well documented, including a report on clear cyber-threats by the Senate Select Committee on Intelligence. That report makes recommendations including “that the State Department and Defense Department work with our allies to establish internationally accepted norms of behavior in cyber-security. Russia must be warned that cyber-attacks on other nations’ critical infrastructure are unacceptable, and at some point, this behavior crosses the line from an act of mischief to an act of war.” (Source)
- The president continues to ignore the danger from Russia. His tit-for-tat Russian diplomat “expulsion” was proven “meaningless” this week, when an unnamed, high-level White House source quietly told the Russians that the number of Russian diplomats in the US is not being cut —they can send sixty other diplomats to replace the ones being expelled. “The doors are open,” the Russians were reportedly told. (Source)
Third Charge: Continued oppression of the media
- The president abused his massive platform to favor one network that heavy-handedly supports his agenda after it came under fire for forcing news readers to support his policies, with one anchor saying they felt “like a POW recording a message.” (Source, source)
Fourth Charge: Failure to faithfully execute the office of president, negligently appointing, retaining, and supervising corrupt agency heads and ethics personnel
- This week brought evidence of ethics personnel engaging in improper, illogical, after-the-fact approval of EPA head Scott Pruitt’s misconduct in accepting favors from lobbyists. (Source)
- Journalists reported that Pruitt’s daughter had paid well below market rates to rent a room from a prohibited donor during her White House internship, violating federal law and executive branch rules. Craig Holman of the non-partisan watchdog group Public Citizen explained,“If the rental arrangement was anything other than a market rate deal, it would at least constitute a violation of the federal statutes and executive branch rules prohibiting gifts to covered officials from prohibited sources.” (Source)
- In March 2017, while Pruitt’s lease at the Washington condo was in effect, the EPA issued a letter giving the lobbyist-landlord’s client’s pipeline project the second-best rating it offers, out of ten possible scores. The agency concluded that while the project raised “environmental concerns,” the review had adequately examined the alternatives and determined that “no further analysis or data collection is necessary.” (Source)
- Pruitt provided pay hikes as a reward to the staff that had aided him, including the twenty-six-year-old staffer overseeing an extensive housing hunt for him — at times conducting the search during office hours, activity that ethics experts said constitutes violation of federal rules. (Source)
- Pruitt also punished five EPA officials who challenged him, demoting, transferring, or asking them to leave their jobs. (Source)
- On April 4, EPA ethics official Kevin Minoli clarified Pruitt’s failures in disclosure, leading to an odd and misleading after-the-fact clearance. He didn’t evaluate whether Pruitt had violated other ethics rules, according to a memo obtained by the Campaign Legal Center and shared with CNN. Minoli wrongly presumed that Pruitt had followed the lease terms as written. Either Pruitt misled the Executive Branch counsel, or that counsel was incapable of determining law, procedures, and facts. The new document makes clear that the old opinion doesn’t cover facts that were excluded from the legal contract between Pruitt and the landlord. “Some have raised questions whether the actual use of the space was consistent with the terms of the lease. Evaluating those questions would have required factual information that was not before us and the Review does not address those questions,” Minoli wrote in the memo. (Source, source)
- President Trump negligently retained Pruitt long after Pruitt’s lies, corruption, and peculation were made public; insiders and outsiders defended the decision because Pruitt “is at one of the key positions for achieving Trump’s agenda.” As of this writing, Pruitt remains in high office. (Source)
Fifth Charge: Negligent selection and retention of incompetent and dangerous personnel in public health
- The president hired an incompetent public health director, most famously known for explaining that AIDS was “God’s judgment” against gay people. (Source)
This week, the wife of fired high FBI official Andrew McCabe—a career public servant fired just days short of his retirement for angering an unstable president—described her personal view of presidential oppression, abuse of office, and interference with the administration of justice, as presidential tweets attacked her, her husband, and the entire senior leadership of the FBI. She—a respected physician—was recruited to run for public office. Her campaign was ultimately unsuccessful. Later, her husband was assigned to investigate Hillary Clinton’s emails. As she wrote this week in the Washington Post, after FBI Director James Comey had been fired,
…the president started tweeting about how the contributions to my campaign made it clear that Andrew (and all the senior leadership at the FBI) were corrupt and that he should be removed. It went one step further in the days before Christmas, when the president made threats related to my husband’s retirement.
But, as McCabe accurately explains:
This could not be further from the truth. In fact, it makes no sense. Andrew’s involvement in the Clinton investigation came not only after the contributions were made to my campaign but also after the race was over.
Our crisis continues to deepen. The president’s conduct reveals his indifference to facts. His own tweets reveal he does not understand important concepts such as what DACA is. It matters not whether he is willfully ignorant or witless. Dangerous negligence and incapacity are each as impeachable as deliberate acts. Under US law, impeachment includes no element of intent to cause harm or break a law.
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!