March 16, 2018
The Week in Impeachment reads the paper, observes that the Impeachment Clause is awfully good for the country
by Barbara A. Radnofsky
Our president, by his failure to either condemn or act, continues to shield key persons and entities in Russia from the sanctions and other repercussions they deserve in response to cyberattacks on the US in propaganda and electoral interference (which remains ongoing and and shows no sign of stopping before the next election), as well as for murderous actions on the soil of our ally England. This makes us increasingly vulnerable to future warfare.
Of the inadequate “targeted sanctions” against Russia that the administration announced yesterday, Representative Adam Schiff said in a tweet, “Treasury will finally punish Russian individuals who, for the most part, were already indicted or subject to sanctions. This from the President who said he was tougher on Russia than Obama. These sanctions will send a message to Russia, just not the one we want to send.”
By his incompetent, negligent, and conflicted choices in staffing key positions—and by leaving others empty—the president greatly diminishes our country’s standing and further endangers the national security and system of government of the United States.
These acts and omissions—including the “hollowing out” of the State Department—are classic, impeachable offenses under US impeachment law. As the media increasingly turns its attention to the prospect of impeachment after the 2018 midterms, everyone should understand that the impeachment process, embedded in the Constitution by the Founding Fathers—and praised by constitutional scholars, including Chief Justice Rehnquist—was intended as a “regular” process. The alternative to impeachment, our Founders explained, was “tumults and insurrection.”
This week brought both additional evidence of impeachable offenses and important media attention to impeachment.
First Charge: Failure to faithfully perform constitutional duties to preserve and protect us from foreign attacks, undermining our electoral system and our national security
- Secretary of State Rex Tillerson condemned Russia for a poisoning episode in Great Britain … and the president fired him by tweet, informing the public before Tillerson learned of his firing from media. Tillerson had criticized Russia for attacks on British soil: “Russia continues to be an irresponsible force of instability in the world, acting with open disregard for the sovereignty of other states and the life of their citizens.” (Source) (Source)
- Congressman Lloyd Doggett decried the harms of “more dysfunction from a White House which only knows self-created chaos. Ongoing instability and unfilled positions threaten our security.” (Source)
- The Wall Street Journal demonstrated that pro-Kremlin trolls effectively trashed Mitt Romney, a hardliner on Russian dangers, when he was under consideration for Secretary of State after the election. (Source)
- David Fidler, a Council on Foreign Relations cybersecurity fellow, joined other experts in criticizing Trump’s failures to act in the area of protection from election meddling, opining that the Trump Administration “has been utterly reactive, rather than proactive … the response has been haphazard and piecemeal.” (Source)
- The US is failing to capture a fleeting moment in technology to prepare for the next great leap forward in political warfare, and needs a deterrence strategy. The dangers come from authoritarian states such as Russia and China, which are aggressively preparing. (Source)
Second Charge: Negligent, incompetent, or corrupt staffing, failure to execute the Office of President, violating the presidential oath and endangering national security; placing personal, financial, and family interests—as well as those of other nations—above our own; failure to retain officers whose merit warrants retention; failure to properly staff important posts.
- In addition to hollowing out the State Department, the president leaves crucial positions unfilled and has been, according to CNN, “slower to nominate State Department officials than his recent predecessors.” Legislators have described the resultant harms to the US. (Source)
- The president sent his son-in-law, Jared Kushner, to Mexico, bypassing our ambassador to that country despite the fact that Kushner has no experience in Mexican-US relations. Raúl Benítez Manaut, a professor of international relations at the National Autonomous University of Mexico, called it “another example of the de-professionalization and personalization of diplomacy that will hurt U.S. interests and leverage in the region.” (Source)
- Presidential daughter and White House advisor Ivanka Trump now receives a reported one million dollars a year, still benefitting—as does the president—from the Trump Organization businesses and the emoluments they receive, in direct violation of the Constitution, “which forbids government officials—not just presidents—from accepting gifts from foreign governments without the approval of Congress.” (Source)
This week brought enhanced attention to impeachment as the media—as well as the president, who’s been seeking impeachment counsel—discussed the concept openly. A Pittsburgh Post-Gazette editorial weighed in on the special Congressional election in Pennsylvania’s Eighteenth District, opposing Democratic Party candidate Conor Lamb, who, the editorial board noted, “was an officer in the Marines and a federal prosecutor, styles himself a moderate Democrat who supports gun rights and personally opposes abortion,” and who has distanced himself from Nancy Pelosi, saying “he would not vote for her to lead his party.”
Significantly, the paper’s rationale in nonetheless supporting Rick Saccone, Lamb’s Republican opponent, included concerns about impeachment. The paper wrote:
There is another consideration. If Mr. Lamb, 33, wins, it could well be the start of a Democratic wave. The prospect of a Democratic House may please partisans, but it might be bad for the country.
The Democrats in the House have only one agenda item at the moment, and it isn’t health care or jobs. It is impeachment. Regardless of whether one likes this president or his policies, one must ask what the consequence for the country will be if we dive into so great a distraction.
Having raised a question as to the “consequence” of impeachment (posed as if the issue were presidential likability, when in truth the key issue is harm to our nation), the paper doesn’t answer it.
President Trump likely shares the concerns of the Post-Gazette’s editorial board. Yesterday, the New York Times reported that Robert Mueller has subpoenaed his business records. This has serious implications:
- Serious implications for the criminal investigation. It’s the first known instance of Mueller demanding records related directly to Trump’s businesses.
- Serious implications for impeachment. The paper also reported Trump was considering hiring William T. Flood, a well-known lawyer with expertise in impeachment (he represented Bill Clinton during his impeachment).
- Serious implications for the 25th Amendment. The president’s firing of his independent-minded secretary of state raises questions about the risk of a presidential cabinet with independent thinkers concerned over the president’s inability to discharge his duties.
Considering impeachment, the Post-Gazette implores us to “ask what the consequence for the country will be.” Here’s the answer: The Founders of the country intended impeachment as a “regular” process, a check on executive power. The clear, bipartisan impeachment research Congress assembled while investigating Richard Nixon, and the impeachment procedures readied for use against him—which caused him to resign before the House could vote—proved so effective that half of all US impeachment convictions have occurred since 1986.
Chief Justice Rehnquist praised the work of the Watergate Committees, emphasizing that future generations had “considerable room” for “play in the joints” to use impeachment for the good of the country. He wrote brilliantly of the trials and acquittals of Supreme Court Justice Samuel Chase and President Andrew Johnson, “‘cases’ decided not by the courts but by the United States Senate — [which] surely contributed as much to the maintenance of our tripartite federal system of government as any case decided by any court.”
Since the research that went into preparations for Nixon’s impeachment (used heavily by the prosecution in Clinton’s impeachment), we’ve experienced six of the nineteen impeachments in US history. The efficiency with which Clinton’s impeachment was carried out showed that the Founders’ purpose had been fulfilled: impeachment is now a regular process, and offers an option obviously preferable to tumults and insurrection.
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!