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Should Donald Trump Be Impeached and Removed From Office: Part I

On Thursday of alst week, the House Committee on the Judiciary voted to adopt rules for conducting an inquiry in to whether that committee should recommend Articles of Impeachment to the full US House of Representatives. Today the committee held its first hearing, having called, by subpoena Cory Lewindowski, Rick Dearborn, and Robert Porter. Only Lewindowski appeared. Dearborn and Porter were blocked by the White House based on a very controversial claim of "absolute immunity" from testifying, and Lewindowski repeatedly refused to answer questions based on a letter from the White House directing that his testimony be limited to only those matters specifically addressed in the Mueller Report. Lewindowski used those instructions as a mechanism to delay answering questions while he verified the content of the report, and declined to answer any questions about any other conversations he may have had with Trump or anyone else within the White House.

Primary sources matter in analysing this hearing. If you didn't watch or listen to the hearing, I strongly recommend that you watch of listen to the recordings. One key question to ask as you contemplate the results of the hearing is  whether one side or the other was trying to find the truth or whether one side or the other. Was one or the other side being overly partisan?


I want to go beyond the hearing, the politics and the rhetoric, and look more deeply at the questions of whether Trunp should be impeached and removed from office. The question involves issues of fact, definitions of terms in the Constitution, and matters of politics. At the core, the question has to be 'what is in the best interest of the country." It may turn out that I will have to write multiple posts to this blog to cover all of my thoughts here. I will try to be as objective as I can, and I will do my best to present both sides of all of the questions. I ask my readers, if there are any, to try to set aside their biases, as I will try to set aside mine. I welcome legitimate feedback and even factual corrections if I misreport something.

In the spirit of disclosure, I found both Trump and Clinton unsuitable for the office of President of the United States, and although I did not think he was the best possible candidate, I found that Gary Johnson, the Libertarian, was the best candidate available. As I write this, I am leaning toward believing that Trump should be removed from office, either by impeachment and trial or by invoking the 25th Amendment.

Definitions

In order to determine whether Trump, or any other president, federal judge, or other federal officer, should be impeached and removed from office it is necessary to understand what constitutes grounds for impeachment. Article I Section 2 Clause 5 of the Constitution provides that the House of Representatives "... shal have the sole Power of Impeachment." 

Article I Section 3 Clause 6 provides, "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath of Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present." Clasue 7 continues,  "Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to indictment, Trial, Judgment and Punishment, according to Law. 

Impeachment in the House of Representatives is basically an accusation of wrong-doing. The Senate holds a trial to determine if the person should be removed from office. It is not a criminal trial.

Article II, Section 4 says, "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Treason is defined in ARticle II, Section 3, clause 1 of the Constitution, "Treason against the United States, shall consist only in levying war against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted ot Treason unless on the Testimony of two Witnesses to the same overt Act, or on confession in open Court." Bribery, high Crimes and Misdemeanors are not defined in the Constitution. 

So, what does "Bribery, high Crimes and Misdemeanors" mean?  This question is critical to our inquiry as it may be possible to accuse the President of each of the offenses listed. The famous Harvard Law professor, O.J. Simpson defense attorney, and occasional Fox News contributor, Alan Dershowitz, in his book, The Case Against Impeaching Trump, argues that "high Crimes and Misdemeanors" should be interpreted to mean violations of the Federal Criminal code.  In April of 1970, Gerald Ford, who was then a member of the House of Representatives, while leading the charge to impeach Supreme Court Justice William O. Douglas, answered the questions this way, "An impeachable offense is whatever a majority of the House of Representatives consider it to be at a given moment in history. That is a pretty wide spectrum.

Lawrence Tribe, also a Harvard Law professor specializing in Constitutional law, and Joshua Matz. Adjunct Professor of Law at Georgetown Law, in their book, To End a Presidency, and Elizabeth Holtzman, who was a member of the House Committee on the Judiciary during the Impeachment Inquiry into Richard Nixon, in her book, The Case For Impeaching Trump, take a more scholarly route to reaching a definition. I'm not going to reproduce  the multiple chapters of these books here, but I do recommend reading them. They note that there was no Federal Criminal Code in existence at the time the Constitution was written, examine the history of the impeachment clause's inclusion in the Constitution and the common meaning of the term in history, and finally not that there are potential offenses that only the president can commit, so it would be unlikely that there would be criminal statutes for all possible offenses. Finally, they look at the Articles of Impeachment that have been drafted against Andrew Johnson, Richard Nixon, and Bill Clinton, as well as those in cases of judicial impeachments, etc. They conclude that impeachable offenses are not limited to violations of the Federal (or any state) Criminal Code, but can include violations of the President's oath of office or other abuses of authority or power. These should not be mere differences of opinion regarding policy, but breaches that place the United States at risk. 

In what follows I will not try to answer this question further. Instead, I will outline each of what appears to be potentially impeachable offenses, try to determine which of the definitions above each fits into, examine the state of the facts, and examine the defenses that have been put forward. I will also try to address the political question of the impact on us going in either direction, and possible alternatives to removing the President from office. 

AS I said earlier, this may require multiple posts as there is a lot of ground to cover. Most of the media coverage and public discussion have centered around the Mueller Report, but this is not the only area where there are potential impeachable offenses. In my notes, I have identified more than 30 potential offenses. These can be grouped into some general classifications, such as the President's immigration policies and actions, potential violations of the emoluments clauses, and so on. But lets start with the Mueller Report and investigation into the Russian interference into the 2016 election.

The Mueller Report

There are three potential offenses that meet Dershowitz' definition of "high Crimes and Misdemeanors" that arise either directly or as fallout from Mueller's investigation as violations of the Federal Criminal Code: Obstruction of Justice (18 U.S.C. §§ 1503, 1505, 1512), Campaign Finance Violations (FECA, Pub L. 92-225, 86 Stat. 3 or 52 USC 30101 et seq), and Contempt of Congress (2 USCA 192)

This is another place where primary sources matter. Depending on which media outlet you pay attention to Mueller either completely exonerated the president or found up to 14 specific instances of conduct that meets the  elements of the crime of Obstruction of Justice. If you haven't read the actual Mueller Report, or you don't understand it, then you don't really have any basis for an opinion. In addition to the Mueller Report, the Campaign Finance violations primary sources are the sentencing memorandum and warrant petition in the Michael Cohen case. Primary sources for Contempt of Congress are the various court filings made by House of Representative Committees in response to the President's refusal to comply with any subpoenas issued by any House committee. 

Obstruction of Justice

The first page of Volume II of the Mueller Report outlines in detail the considerations the investigators considered in deciding not to make a "traditional prosecutorial decision." The first is the Office of Legal Counsel (OLC) opinion that a sitting president could not be indicted. The second was to preserve the evidence against the prospect of a prosecution after Trump leaves office. Third, that concerns of fairness - especially the notion of having a fair trial - mandated that, if no indictment could be brought, then it would be inappropriate to accuse. And fourth, that the evidence did not support a negative finding. Aa negative finding would have looked something like the finding in Volume I, that there wasn't enough evidence to indict.) (Mueller, vol II pp 1-2)

Mueller looked at the following issues in the investigation: The [Trump] Campaign's response to report about Russian support for Trump; Conduct involving FBI Director Comey and Michael Flynn; The President's reaction to the continuing Russia investigation; The President's termination of Comey; The appointment of a Special Counsel and efforts to remove him; Efforts to curtail the Special Counsel's investigation; Efforts to prevent public disclosure of evidence; Further efforts to havbe the Attorney General take control of the investigation;Efforts to have McGahn deny that the President had ordered him tohave the Special Counsel removed; Conduct toward Flynn, Manafort, [REDACTED]; and  Conduct involving Michael Cohen;  (Mueller, vol II pp 3-6)

Mueller's report details the factual results of the investigation into each of these areas in a narrative over 148 pages. The report then spends 19 pages discussing the legal defenses to Obstruction of Justice. A bipartisan and non-partisan group of over 1,000 former Federal prosecutors wrote a letter in which they stated, "The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming."

The elements of Obstruction of Justice are: (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. (Mueller vol II p 9) Mueller spells out the legal definitions, case law (Court precedents), and amplifies the definitions of the elements between pages 9 and 12, including additional information about witness tampering and efforts to end proceedings. 

The Mueller Report clearly identifies multiple instances in which the first two elements of Obstruction of Justice are met. In each of the instances, the report analyzes each of the elements noted above.  For each of the incidents, the report provides analysis of each element. If the facts related in the Mueller Report are accurately reported, then there is ample grounds to charge the President with Obstruction of Justice. If this were a criminal matter, rather than a question of impeachment, the President would be entitled to a fair and speedy trial and given the opportunity to defend against the charges. The prosecution would have to prove each of the elements beyond a reasonable doubt. 

Defenses to Obstruction of Justice

That is the prosecution's case. What are the defenses that can be raised to this charge? 

Denial of the Facts Alleged: The President, the Attorney General, and many Republicans in Congress have repeatedly told the American people that there was, "No collusion, no obstruction." This is a direct contradiction of the facts alleged in the Mueller Report. Ironically, none of these Republicans have been able to impeach the Mueller Report's factual claims. (The word 'impeach' means to "call into question the integrity or validity of.") Most of the factual assertions are public knowledge. Meanwhile the White House and DOJ have refused to allow Congressional committees to see the underlying evidence or to question witnesses. Where they've been unable to prevent a witness from testifying, as was the case today, the Republicans attempt to use parliamentary procedure, points of order, and any other device they can to prevent questioning of witnesses. Even so, when cornered today, Cory Lewindowski admitted under oath that the portions of the Mueller Report that described his testimony were accurate. To date, I am unaware of anyone that has challenged any of the alleged facts as untrue.

Unitary Executive Theory: This defense argues that the President, because he is the nation's chief law enforcement official, has the authority under Article II of the Constitution to terminate any investigations or to fire any executive branch personnel. Dershowitz, Attorney General Barr, and the President's personal counsel during the Mueller investigation all raised this defense. For an impeachment inquiry this defense suffers from three significant flaws: First, it is a legal theory that has never been tested in the courts (Mueller vol II p 159). Second, as Mueller notes, "The President's counsel has conceded that the President may be subject to criminal laws that do not directly involve exercises of his Article II authority, such as laws prohibiting bribing witnesses or suborning perjury." This would also include witness intimidation. So this defense would only apply to some of the President's conduct. Third, if the theory holds then the only remedy available for a president who abuses his authority under Article II would be impeachment and removal from office. 

No Underlying Crime: This defense argues that, since the Mueller investigation did not find and charge a criminal conspiracy with regard to the Russian interference in the 2016 election, the President could not possibly have obstructed justice. This defense has been raised by many Republican Congressmen, media commentators, and others. This defense also suffers from three fatal flaws. First, the existence of an underlying crime is not an element of obstruction of justice; in fact, a successful attempt to obstruct justice could very well prevent an underlying crime from being discovered. Second, the claim is factually incorrect. The Mueller investigation resulted in 37 criminal indictments of 34 individuals and 3 organizations. Manafort , Cohen, Flynn, Gates, Papadopoulos, van der ZWaan, Pinedo, Patten, Kian have all either been convicted or pled guilty to federal charges. Alptekin, Ween, Podesta case appear to still be open. Roger Stone is awaiting trial. Gregory Craig is the only player to be acquitted so far. And that doesn't include the Russians. At the time the Mueller Report was released, there were still 14 on-going criminal investigations. Finally, even the claim of "no collusion" and "total exoneration" regarding conspiracy with the Russians is mischaracterized. The Mueller investigation did find evidence of conspiracy, just not enough to satisfy all of the elements of the crimes investigated. For example, the Muller Report (vol I pg 10) notes
The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office's judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information-such as information known to attorneys or individuals claiming to be members of the media-in light of internal Department of Justice policies. See, e.g., Justice Manual§§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter ( or "taint") team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.
Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated-including some associated with the Trump Campaign-deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.
Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.  

Other difficulties existed with regard to specific elements of the investigated crimes, such as whether the subjects had sufficient knowledge of what was going on (Mueller vol I pg 14)  or "the difficulty of establishing the value of the offered information" (Mueller vol I pg 185) would meet the appropriate thresholds.

Poison Stream:  President Trump, Attorney General Barry and some members of the House Committee on the Judiciary have raised the issue of the "origins" of the investigation, particularly in regard to a FISA warrant. The idea here is that this warrant was improperly obtained, and therefore any evidence that resulted from the warrant would be inadmissible. Supposedly, the Attorney General and the Department of Justice Inspector General are conducting investigations to determine if there was impropriety in the warrant application. To date, the only results from that investigation is the IG report that Comey kept and leaked FBI memos after he was fired as FBI Director. This argument has several rather obvious holes: First, the warrant only pertained to surveillance  of one individual, Carter Page, was supported by probable cause statements and none of those probably cause statements has been impeached or shown to have been fraudulent. Second, if there was a credible cause to believe the warrant was improper, and the evidence stemming from it was a poison stream, it would seem likely that at least one of the 8 people that have either been convicted or pled guilty from evidence found by Mueller would have raised this as a defense. None have. Third, the FISA warrant is not the only source of evidence that lead to investigating the president for obstruction of justice. Third, while the warrant might be relevant had there been charges of conspiracy, it is not relevant to the question of obstruction of justice which happened after the warrant was issued, and independant of the case of Carter Page.

Investigative Bias: This is an ad hominem attack on Mueller's team, and a general fallacy of relevance. The bias or lack of bias of the investigators is not relevant to the facts. The facts can be obtained and verified by the underlying documentary evidence and by examining the witnesses the Mueller team interviewed. Something the administration has done just about everything in its power to prevent from happening.

No Cross Examination: This is an argument raised by one of the Republican Representatives on the House Judiciary Committee. The argument is that the witnesses interviewed or that gave testimony to the Mueller team were not subject to cross-examination. Cross-examination of witnesses is not a function of the investigation, but a function of the trial. Again, if this Representative wants to cross-examine the witnesses adverse to the President, they should be called to testify before the committee. Rather than an argument that the investigation be dropped, this is a strong argument for continuing it, if for no other reason than to allow the President's defenders to cross-examine the witnesses.

No Power/Authority to Exonerate:  This argument was raised during Robert Mueller's testimony before the Judiciary and Intelligence committees by Representative John Ratcliff, a Republican from Texas's 4th District. He serves on both committees. His argument takes issue with the statement made at the very end of the Mueller Report that,  "Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him." His argument seems to be that the Special Counsel lacks the authority under law to "exonerate" anyone. This argument is an absurd dive into semantics and misdirection. He even called attention to this argument today during Lewindowski's testimony. Of course the Special Prosecutor has the authority to exonerate, that is precisely what he did when he concluded not to bring any charges for conspiracy. I have to give Ratcliff high marks for creativity and theatrics, but I would not hire him as a defense lawyer.

Leaked Information from Investigation: Normally I would not even discuss this, but the argument, if you can call it that, was raised by the Congressman that represents the district I live in, Utah's 2nd Congressional District, Chris Stewart, in his questioning of Mueller before the House Intelligence Committee. Stewart waived a three ring binder in the air and accused the Mueller team of leaking information to the press. He claimed he had documentation of 23 separate incidents of leaked information, but only asked questions about two: The Roger Stone arrest and the letter from Mueller to Barr after Barr released his now famous four page letter. This line of questioning had nothing to do with the subject of Mueller's investigation into Russian meddling in the 2016 election, which would be the primary concern of the Intelligence Committee, nothing to do with the question of whether the President committed Obstruction of Justice. It was  a theatrical diversion to take the focus off of the results of Mueller's investigation. To make matters worse, a few days after that hearing, Stewart sent out an email newsletter where he claimed that nothing new had come from the hearings and restated the President's mantra, "no collusion, no obstruction." Having watched the entirety of both hearings, I rate that as a bald face lie. Mr. Stewart, if you happen to read this, know that you will not have my vote in the next election. I have no patience for either stupid or dishonest, and you are both.

Have I missed any potential defenses? Let me know in the comments. It is now 1:30 in the morning, so I am going to stop here, and pick up with campaign finance violations and contempt of Congress in my next post. 



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