Tag: Impeachment

Is the Stormy Daniels Payoff an Impeachable Offense?

As you’ve no doubt heard by now, on Tuesday, Michael Cohen, President Trump’s erstwhile “fixer,” pled guilty to, among other charges, making an illegal campaign contribution in the form of a $130,000 “hush money” payment to adult film star Stormy Daniels. That payment was made, Cohen affirmed, “at the direction of a candidate for federal office”—Donald J. Trump—“for the principal purpose of influencing the election.” 

If that’s true, would Trump’s participation in that scheme rise to the level of “high Crimes and Misdemeanors”? Maybe: you can argue it both ways, so I will.

The case against the Stormy payoff as impeachable offense would characterize it as the sort of de minimis legal violation impeachment isn’t concerned with. Just as you don’t need a crime to have an impeachable offense, the commission of a crime doesn’t automatically provide grounds for impeachment. Murder is a crime and an impeachable offense—even according to Rudy Giuliani—but you wouldn’t impeach a president for, say, importing crocodile feet in opaque containers or misappropriating the likeness of “Smokey Bear,” because those offenses don’t speak to his fitness for high office.

Impeachment opponents can argue that the criminal offense alleged here depends on a contested application of the Federal Election Campaign Act. In the 2012 prosecution of John Edwards, three former FEC commissioners testified that third-party payments to Edwards’ pregnant mistress would not have been considered campaign contributions.

The president’s defenders can also—though this may be awkward for some—compare Trump’s troubles to Bill Clinton’s two decades ago: unlawful acts committed as part of a scheme to conceal a private sexual affair. Though many of them sang a different tune in the ‘90s, they can appeal to the dominant historical consensus that impeaching Clinton for that was like wheeling out the proverbial hundred-ton gun to blast a squirrel.

The case that the Stormy payoff is an impeachable offense depends on a different, but equally plausible framing. In Trump’s case, the unlawful act quite plausibly affected the outcome of the 2016 election. Cohen made the payment less than two weeks before Election Day, in what turned out to be an extraordinarily close contest. As Laurence Tribe and Joshua Matz note, the Framers repeatedly identified “corrupt acquisition of the presidency as a paradigm case for impeachment.” One of the Framers’ key concerns was the possibility of a candidate bribing the Electors—an imperfect analogy to what’s alleged in Trump’s case. But impeachment advocates might also point to our most recent impeachment case: Judge G. Thomas Porteous, removed by the Senate in 2010, in part for corrupt acquisition of his post. Article IV of the Porteous impeachment charged the judge with lying to the Senate about his past in order to secure confirmation to the federal bench, thus “depriv[ing] the United States Senate and the public of information that would have had a material impact on his confirmation.”

Jerry Ford went too far when he said that an impeachable offense is “whatever a majority of the House considers it to be at a given moment in history.” Still, the scope of the impeachment power is much broader than is commonly recognized. It covers what Hamilton described as “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” As the legal scholar Frank Bowman sums up: “‘high crimes and misdemeanors’ are serious offenses that either endanger the political order or demonstrate an official’s manifest unfitness to continue in office.” That leaves ample room for argument and interpretation. Moreover, while legal analysis may be able to tell you when impeachment is permissible in a given case, it can’t tell you whether it’s a good idea.

The fact that Michael Cohen has potentially implicated Donald Trump in a felony violation of federal election law has increased the president’s chances of facing a serious impeachment effort after November. But if impeachment is about guarding the public from officials dangerously unfit to wield power, “broke the law to pay off a mistress” has to be pretty far down the list behind, say, “makes off the cuff threats of nuclear annihilation.” That any impeachment inquiry will likely spend more time parsing the intricacies of federal election law than examining the president’s public conduct is yet another reason to rue the “Overcriminalization of Impeachment.”

Crying “Coup,” Red and Blue

History hasn’t been kind to Alexander Hamilton’s hypothesis, in Federalist 68, that “there will be a constant probability of seeing the [office of the presidency] filled by characters pre-eminent for ability and virtue.” Still, he was spot-on in No. 65, when he predicted that impeachment debates would stoke partisan rancor, driving “pre-existing factions [to] enlist all their animosities, partialities, influence, and interest on one side or on the other.”

Impeachment talk started unusually early in the Trump administration, and seems likely to get louder as we go. So far it’s been an even richer source of hyperbole and hypocrisy than the judicial filibuster.

“Congress must begin impeachment proceedings immediately,” insists MoveOn.org, the activist group born in a 1998 campaign urging Congress to “Move On to pressing issues facing the country,” instead of impeaching Bill Clinton. They’ve lately developed an interest in presidential obstruction of justice, so today MoveOn would rather linger. Meanwhile, the American Spectator—the magazine that put itself on the map (and the Paula Jones lawsuit in play) with investigative reporting on Clinton’s sex scandals—already has a case of “impeachment fatigue.”The times are sour and ill-mannered enough without unnecessary strife over removal of a duly elected president of the United States,” William Murchison sniffs at the AmSpec site. 

As I noted in a piece for U.S. News earlier this week, the emerging refrain on the Right is that anyone who dares mention the “I-word” has thrown in with a vast left-wing conspiracy plotting “a coup attempt against a lawfully elected government.” That’s from Dinesh D’Souza, but Gary BauerTom TancredoBen SteinLou Dobbs, and Pat Buchanan are all singing from the same hymnal. If Trump is eventually brought down via impeachment, Buchanan charges, “this city will have executed a nonviolent coup against a constitutionally elected president.” 

In our last national debate over impeachment, the coup was on the other foot (sorry!). Congressional Democrats used the term liberally, railing against the GOP attempt to remove Bill Clinton for perjury and obstruction of justice. “A partisan coup d’etat,” cried Rep. Jerrold Nadler (D-NY); a “Republican coup d’etat,” echoed John Conyers (D-MI). Rep. Maxine Waters (D-CA) pronounced herself appalled by “the raw, unmasked, unbridled hatred and meanness that drives this impeachment coup d’etat, this unapologetic disregard for the voice of the people.’’

All three are, of course, still in Congress today, ready to weigh in Trump’s current predicament. Nadler has affirmed that “impeachment[’s] a possibility”; “Auntie Maxine” is leading the charge, and while it doesn’t appear that Conyers has used the “I-word” yet, it’s surely just a matter of time, given that he’s tried to impeach nearly every Republican president over his five-decade career, (while giving Democrats a pass for similar behavior).  

Could President-elect Trump’s Business Dealings Violate the Constitution?

At the New York Times, Adam Liptak has a story on whether President-elect Trump’s business dealings–in particular the possibility that he may use his presidential power to secure business advantages–would violate the obscure Emoluments Clause of Article I, Section 9 of the Constitution. Since the clause has never been directly addressed by the Supreme Court, we’ll have to do some guesswork.

The short answer: very possibly, but it will depend upon the facts of the situation.

The longer answer: whether or not Trump’s dealings violate the text and original public meaning of the Emoluments Clause, it should be highly concerning to everyone that the President-elect seems committed to still being closely involved in his businesses. Unless he wants a pall of suspicion hanging over his every move and every phone call to a foreign official, the President-elect should immediately place his businesses in a blind trust in order to maintain at least the semblance of propriety.

In the text, the Emoluments Clause prohibits any Person holding “any Office of Profit or Trust” under the Constitution from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Immediately, it is clear that the text limits the clause to gifts from foreign governments and the officials.

The original public meaning of the clause also confirms this interpretation. Foreign kings and princes once gave lavish presents to American officials, for example, a diamond-studded snuff box given to Benjamin Franklin (then ambassador to France) by Louis XVI. The Framers were concerned that these gifts would corrupt our officials, and so they prohibited them.

The next relevant consideration is whether, if Trump’s businesses receive a “gift” from a foreign government, Trump himself may be violating the Emoluments Clause. There is certainly an argument for this, since he benefits from the gift, even if only by increasing the value of his brand and stock holdings.

Was Hillary Clinton Fired from the Nixon Impeachment Inquiry?

Washington Post fact checker Glenn Kessler gives a maximum Four Pinocchios to the claim that Hillary Clinton was fired during the Watergate inquiry, which has gotten a lot of circulation on social media. He makes a detailed case that there is no evidence for such a firing. However, along the way he does note some unflattering aspects of her tenure there:

In neither of his books does Zeifman say he fired Clinton. But in 2008, a reporter named Dan Calabrese wrote an article that claimed that “when the investigation was over, Zeifman fired Hillary from the committee staff and refused to give her a letter of recommendation.” The article quoted Zeifman as saying: “She was a liar. She was an unethical, dishonest lawyer. She conspired to violate the Constitution, the rules of the House, the rules of the committee and the rules of confidentiality.”…

In 1999, nine years before the Calabrese interview, Zeifman told the Scripps-Howard news agency: “If I had the power to fire her, I would have fired her.” In a 2008 interview on “The Neal Boortz Show,” Zeifman was asked directly whether he fired her. His answer: “Well, let me put it this way. I terminated her, along with some other staff members who were — we no longer needed, and advised her that I would not — could not recommend her for any further positions.”

So it’s pretty clear that Jerry Zeifman, chief counsel of the House Judiciary Committee during the Watergate inquiry, had a low opinion of the young Yale Law graduate Hillary Rodham. But because she reported to the chief counsel of the impeachment inquiry, who was hired separately by the committee and did not report to Zeifman, Zeifman had no authority over her. He simply didn’t hire her for the permanent committee staff after the impeachment inquiry ended.

Kessler also notes that Clinton failed the D.C. bar exam in that period. She never retook the exam (passing the Arkansas exam instead) and concealed her failure even from her closest friends until her autobiography in 2003.

And then there’s this:

Zeifman’s specific beef with Clinton is rather obscure. It mostly concerns his dislike of a brief that she wrote under Doar’s direction to advance a position advocated by Rodino — which would have denied Nixon the right to counsel as the committee investigated whether to recommend impeachment. 

That brief may get some attention during the next few years, should any members of the Clinton administration become the subject of an impeachment inquiry. Also in Sunday’s Post, George Will cites James Madison’s view that the power to impeach is “indispensable” to control of executive abuse of power. 

It Couldn’t Happen Here?

Dilma Rousseff was never as popular as the president who anointed her as his successor. Despite her intelligence and diligence in numerous official posts, she lacked his warm personality and flair for campaigning. But she ran a very professional presidential campaign, with lots of celebrity supporters, and the vigorous support of her predecessor, and she won the election and became Brazil’s first female president. In office she pursued policies of easy money, subsidized energy, and infrastructure construction, which initially boosted her popularity. As is so often the case, though, those populist programs eventually brought inflation and a slide into economic contraction. Simultaneously, allegations of corruption and cronyism hurt her reputation. Impeachment proceedings were brought against her, focused on her mismanagement of the federal budget, particularly employing budgetary tricks to conceal yawning deficits. “Experts say Ms. Rousseff’s administration effectively borrowed some $11 billion from state banks, an amount equal to almost 1 percent of the economy, to fund popular social programs that have been a hallmark of the Workers Party’s 13 years in power.” Some said that such fiscal mismanagement and dishonesty were common in presidential administrations and should not result in impeachment. But the Senate convicted her and removed her from office, making her bland vice president the new president.

Thank goodness nothing like that could happen in our own country.

The “I-Word” Isn’t a Curse

I’m not convinced that any of the recent scandals roiling the Obama administration constitutes an “impeachable moment,” but, as I argue today in the Washington Examiner, there’s something wrong with a (post-?) constitutional culture where opinion leaders treat the very invocation of the “I-word” as akin to screaming obscenities in a church.

Impeachment talk is “industrial strength insane” says the Daily Beast’s Michael Tomasky; “serial madness,” per Richard Brodsky at the Huffington Post; Rachel Maddow compares it to incontinence; and for the Atlantic’s Philip Bump, it’s like the inevitable idiot in the comments thread invoking Hitler. True, Salon’s recent listicle of 14 “crazy times” right-wingers have called for Obama’s impeachment consists mostly of frivolous, even loopy proposals; but it also includes Bruce Fein’s 2011 call to impeach Obama “over the military intervention in Libya, alleging that it violated the Constitution’s mandate that only Congress can declare war.” Crazy talk!

Also in the Atlantic, “communitarian” godfather Amitai Etzioni moans “I see no way to protect the president and all of us from the second term curse” in a piece titled, “Why It Should Be Harder to Impeach a President.“ 

Harder”? A “reality-based” communitarian Etzioni ain’t. In our 224-year constitutional history, we’ve only managed the feat twice—three times if you count Nixon, who resigned before the full House got to vote. How much harder can it get?

And when did calling for—even musing about—a president’s impeachment become a form of secular blasphemy—the American version of Lèse-majesté

Given what the mid-’70s Church Committee hearings revealed about presidential abuses of power, at a minimum, all three presidents of the ’60s deserved to be impeached and removed from office. Of the seven presidents since Nixon, I can make a case for impeaching at least four.

As Ben Franklin put it at the Philadelphia Convention, the impeachment power is “the best way… to provide in the Constitution for the regular punishment of the Executive when his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”

Our problem isn’t too many impeachments, but too few.