If you don’t have time to read the 600+ pages of the House JudiciaryCommittee Impeachment Report to accompany H. Res. 755, 116thCongress, 1st Session, (hereinafter: Report or H. Rep., found here) this story and the next story in this series will convey what I see as the key points. Fortunately, the damning impeachment argument the title refers to and that refutes most Republican talking points is included in the Report if somewhat buried. If you are as old as I am, you’ve already seen the highlights before during the Nixon impeachment hearings.
Notwithstanding all the outstanding scholarly constitutional research done on the impeachment clause, every first year law student capable of passing the bar knows, you lead your argument with the most recent precedent that supports your client’s case. As I layout below, with frequent citations to the Report that support my position, the leading precedent for Trump’s violations of his duty to the Constitution is the impeachment of Richard Nixon. Specifically, it is the second Article from the Nixon impeachment investigation, usually called the abuse of power article (although it uses the term “misuse” of instead). This article charged Nixon with abusing his Presidential authority by using the FBI, CIA, and IRS to go after individuals on his “enemies list” including seeking to have the IRS audit more than 500 campaign workers and donors of the McGovern campaign. The full Nixon Articles can be found here. The second Article is quoted in full at the bottom.
It is important to note that of the Nixon Articles of Impeachment voted on by the House Judiciary Committee back in 1974, this one received the most bipartisan support (although by only one vote more, some interesting history on this from the Report below). That makes it a far more compelling precedent than to give a citation that Britain had used impeachment as far back as 1376 (H. Rep. pg. 35). As one begins to compare the Trump Administration to Watergate, you quickly realize the number of parallels between the two. It is self-evident that Trump’s misuse of the powers of his offense nearly perfectly mirrors Nixon’s Watergate offenses but on steroids. Only in the case of Trump, it additionally involved damage to our national security, seeking to influence Trump’s re-election prospects, criminal witness intimidation and violations of campaign laws. Fortunately, with the Senate trial on hold, it is not to late to make this argument to the electorate.
As everyone here is aware, the Trump administration is engage in a massive conspiracy to use the authority and resources of the Federal government for Trump’s personal benefit. Contrary to what some pundits have thought, even the threat of impeachment has not stopped this criminal effort. When Trump’s actions are placed in this historical context, it becomes clear that to fail to respond to this vast expansion in abuse of power when compared to Nixon’s second impeachment article, assures that the Republican party itself will continue to devolve into a criminal enterprise that will end of democracy. It is also important to point out that by drawing these historical/legal parallels, a vast majority of Republican talking points (“not an impeachable offense,” “no crimes were committed,” etc.) can be easily be rebutted by the precedents set in the Nixon impeachment. This simplifies the job of Democratic purple district Representatives in defending their votes. It should be the leading Democratic talking point on impeachment that similar previous lesser abuses by Nixon led to his resignation.
The Report does thoroughly lay out many of the facts and legal standards of the impeachment case against Trump, including the lessons from the Nixon impeachment. Unfortunately, however, the Report fails to connect many of the dots for the typical horse race/bothsiderism reporter or tuned out voter. In reality, there are limitations on how political Democrats could get in the report. However, Democrats could have more clearly highlighted the similarities to counter the Republican talking points. Further, the Report could have been expanded to include additional examples of abuses and crimes committed that also met the standards in the second Nixon article. As I will layout in Part #6 of this Series, I would included emoluments in this list of additional abuses.
The following excerpts from the Report clearly lay out the basis for using the Nixon impeachment as the lead precedent for Trump’s impeachment. The Impeachment Report on page 30 states:
President Richard Nixon’s conduct has come to exemplify impeachable abuse of power: he acted with corrupt motives in obstructing justice and using official power to target his political opponents, and his decision to unlawfully defy subpoenas issued by the House impeachment inquiry was unconstitutional on its face.
Nixon’s misconduct resulted in the passage by the House Judiciary Committee of three recommended Articles of Impeachment. The known facts from the Mueller investigation, the Report and Trump’s conduct during the Impeachment inquiry, fully support at least similar charges against Trump. The Trump Articles include two of the Nixon Articles. Those are: abuse of power (Ukraine) and contempt of Congress (refusal to comply with subpoenas). There is also sufficient evidence to support an Article similar to first Nixon Article, obstruction (as laid out in the Mueller report plus witness tampering). However, as I will detail in my next Part #6 of this series (again drawing on the Report), Trump’s malfeasance includes many other significant criminal offenses and other abuses of power for corrupt purposes compared to those that led to Nixon’s resignation.
The Report is an impressively well written document, particularly the scholarly analysis of the Framer’s drafting and intended meaning of the Impeachment clause. In my research of impeachment law since the Mueller investigation began, it is by far the best thing I have read on the subject. It includes the most compelling arguments I have seen on the British impeachment precedents that the Framers would have drawn on in determining whether to include the Impeachment clause and how to word it. If you are interested in understanding where “high crimes and misdemeanors” comes from, I highly recommend reading the section on Constitutional Grounds for Presidential Impeachment starting on H. Rep. pg. 28. The most compelling case for its source is the great British statesman, Edmund Burke, found at page 38 of the Report:
As Hamilton recounted, Britain afforded “[t]he model from which the idea of [impeachment] has been borrowed.” . . . . To understand their choice requires a quick tour through history.
That tour offers two lessons. The first is that the phrase “high Crimes and Misdemeanors” was used only for parliamentary impeachments; it was never used in the ordinary criminal law. Moreover, in the 400-year history of British impeachments, the House of Commons impeached many officials on grounds that did not involve any discernibly criminal conduct. Indeed, the House of Commons did so yet again just as the Framers gathered in Philadelphia. That same month, Edmund Burke—the celebrated champion of American liberty—brought twenty-two articles of impeachment against Warren Hastings, the Governor General of India. Burke charged Hastings with offenses including abuse of power, corruption, disregarding treaty obligations, and misconduct of local wars. Historians have confirmed that “none of the charges could fairly be classed as criminal conduct in any technical sense.” Aware of that fact, Burke accused Hastings of “[c]rimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not in formal, technical language, but in reality, in substance and effect, High Crimes and High Misdemeanors.”
Burke’s denunciation of Hastings points to the second lesson from British history: “high Crimes and Misdemeanors” were understood as offenses against the constitutional system itself. This is confirmed by use of the word “high,” as well as Parliamentary practice. From 1376 to 1787, the House of Commons impeached officials on seven general grounds: (1) abuse of power; (2) betrayal of the nation’s security and foreign policy; (3) corruption; (4) armed rebellion [a.k.a. treason]; (5) bribery; (6) neglect of duty; and (7) violating Parliament’s constitutional prerogatives. To the Framers and their contemporaries learned in the law, the phrase “high Crimes and Misdemeanors” would have called to mind these offenses against the body politic.
(Emphasis added, citations omitted)
From my perspective as a Constitutional attorney, the real Nixon scandal was not so much the cover-up of the Watergate break-in, but his use of the powers and resources of the Executive branch for personal benefit. This included directing the CIA, the FBI and the IRS to seek revenge on the people on his “enemies” list. The Committee Report again cites the Nixon impeachment as precedent in discussing both obstruction of justice (Nixon Article 1) and abuse of power (Article 2) on page 46 stating:
Again, President Nixon’s case is instructive. After individuals associated with his campaign committee committed crimes to promote his reelection, he used the full powers of his office as part of a scheme to obstruct justice. Among many other wrongful acts, President Nixon dangled pardons to influence key witnesses, told a senior aide to have the CIA stop an FBI investigation into Watergate, meddled with Justice Department immunity decisions, and conveyed secret law enforcement information to suspects. Even if some of this conduct was formally within the scope of President Nixon’s authority as head of the Executive Branch, it was undertaken with illegitimate motives. The House Judiciary Committee therefore included it within an article of impeachment charging him with obstruction of justice. Indeed, following President Nixon’s resignation and the discovery of additional evidence concerning obstruction, all eleven members of the Committee who had originally voted against that article joined a statement affirming that “we were prepared to vote for his impeachment on proposed Article I had he not resigned his office.” Of course, several decades later, obstruction of justice was also the basis for an article of impeachment against President Clinton, though his conduct did not involve official acts.
Yet obstruction of justice did not exhaust President Nixon’s corrupt abuse of power. He was also accused of manipulating federal agencies to injure his opponents, aid his friends, gain personal political benefits, and violate the constitutional rights of American citizens. For instance, President Nixon improperly attempted to cause income tax audits of his perceived political adversaries; directed the FBI and Secret Service to engage in targeted (and unlawful) surveillance; and formed a secret investigative unit within the White House—financed with campaign contributions—that utilized CIA resources in its illegal covert activities. In explaining this additional article of impeachment, the House Judiciary Committee stated that President Nixon’s conduct was “undertaken for his personal political advantage and not in furtherance of any valid national policy objective.” His abuses of executive power were thus “seriously incompatible with our system of constitutional government” and warranted removal from office.
(Citations omitted.)
Note, the above Report quote provides the interesting historical sidelight I alluded too earlier. That is, after the vote, sufficient additional information came out, which had it been available earlier, the vote on Article 1 would have been unanimous and truly bipartisan.
In the discussion of whether abuse of power, which is not a crime, is an impeachable offense, the Report states on page 71:
This is confirmed by past practice of the House. President Nixon’s case directly illustrates the point. As head of the Executive Branch, he had the power to appoint and remove law enforcement officials, to issue pardons, and to oversee the White House, IRS, CIA, and FBI. But he did not have any warrant to exercise these Presidential powers abusively or corruptly. When he did so, the House Judiciary Committee properly approved multiple articles of impeachment against him. Several decades later, the House impeached President Clinton. There, the House witnessed substantial disagreement over whether the President could be impeached for obstruction of justice that did not involve using the powers of his office. But it was universally presumed—and never seriously questioned—that the President could be impeached for obstruction of justice that did involve abuse of those powers. That view rested firmly on a correct understanding of the Constitution.
(Citations omitted.)
Finally in the Report’s finding that merely attempted Presidential misconduct is also impeachable, the Report again cites the Nixon impeachment, stating on page 74:
The House Judiciary Committee reached this conclusion in President Nixon’s case. Its analysis is compelling and consistent with Mason’s reasoning:
In some of the instances in which Richard M. Nixon abused the powers of his office, his unlawful or improper objective was not achieved. But this does not make the abuse of power any less serious, nor diminish the applicability of the impeachment remedy. The principle was stated by Supreme Court Justice William Johnson in 1808: “If an officer attempt[s] an act inconsistent with the duties of his station, it is presumed that the failure of the attempt would not exempt him from liability to impeachment. Should a President head a conspiracy for the usurpation of absolute power, it is hoped that no one will contend that defeating his machinations would restore him to innocence.” Gilchrist v. Collector of Charleston, 10 F. Cas. 355, 365 (No. 5,420) (C.C.D.S.C. 1808).
Adhering to this legal analysis, the Committee approved articles of impeachment against President Nixon that encompassed acts of attempted wrongdoing that went nowhere or were thwarted. That includes President Nixon’s attempt to block an investigation by the Patman Committee into the Watergatebreak-ins,397 his attempt to block testimony by former aides, his attempt to “narrow and divert” the Senate Select Committee’s investigation, and his attempt to have the IRS open tax audits of575 members of George McGovern’s staff and contributors to his campaign, at a time when McGovern was President Nixon’s political opponent in the upcoming 1972 presidential election. Moreover, the article of impeachment against President Nixon for abuse of powercharged that he “attempted to prejudice the constitutional right ofan accused to a fair trial.”
(Citations omitted)
However, by allowing the media, even those who ostensibly support conviction, to report without pushback that this is only about Trump, the Democrats chances in 2020 are weakened. In fact, Trump is just the latest of eight decades of Republican malfeasance. Of course, Trump said he did nothing wrong. There is some perverted truth in that, because if you examine other Republicans, except for Nixon, they have had gotten away with abuse of power for decades (Valerie Plame, for example).
As the above passages demonstrate, the Report and the Articles got make a strong case, but the Democrats missed the best theory of the case against Trump under the abuse of power article and thus missed an opportunity to convince the undecided American voter. It is not a fatal flaw, but time is running out to correct it, especially with the media continuing to allow the Republicans to dominate the airways with little effective pushback for their lies, hypocrisy, and misdirection regarding the case against Trump. Who is going report the fact-checking on all the false statements made in the House debates? MSNBC partially at best. Unfortunately, that job falls to the Democrats who, with a couple of notable exceptions, Pelosi and Schiff, are falling short of the mark.
The Democrats and their expert witnesses in the House Judiciary Committee Hearing on December 4, 2019, as well as what I saw of the impeachment debate, completely missed the primary opportunity to deliver the definitive response on the question of whether Trump had committed impeachable offenses. I confess I did not stay riveted on the Committee hearings, but they were on in the house as I started this story. I did watch occasionally, ignoring the Republican Representatives, and caught all of the commentary during the breaks. Yes, the Democrats and Professors Feldman, Karlan, and Gerhardt made strong academic arguments in support of the obvious, that Trump has committed impeachable offenses. However, they completely missed laying out the full theory of the case against Trump and drawing parallels to the Nixon impeachment precedent. Further, they basically ceded to the Republicans the legal theory/theories under which the issue was to be debated (originalism, strict constructionism, etc.). Those theories are at the heart of the conservative legal thought and the breakdown of American jurisprudence. By debating using Republican/conservative legal thought which focuses on the original intent of the Framers, while the Democrats clearly may have had the more persuasive argument from my liberal legal way of thinking, they missed the opportunity to effectively respond to the Republican strategy of trying to confuse the public with lies, double talk and nonsense.
Further, from what I watched to during the hearings, and what MSNBC’s Maya Wiley confirmed in her comments during the break, all the experts basically made the same unforced error (videoclip here). The Democratic witnesses did not make the case as to how the evidence supported their conclusion that Trump’s actions were impeachable, opening the door for Republicans to claim “no evidence of a crime” during the House debates. This hearing was not the disaster that the Mueller and Lewandowski hearings were and there were some strong moments, particularly from Professor Karlan. Still, Democrats missed the chance to make the strongest possible case for impeachment in both the hearings and the debate. As a result, with the press continuing their malpractice in reporting Republican lies and talking points as well as failing to put the latest news in context for the American voter, the Democrats chances of taking all three branches will diminish. (Note: In a different segment, Wiley also expressed disappointment on the failure to draw on the Nixon second article precedent. However, despite extensive searching, including Wiley’s twitter feed, I could not find a video of the statement. If anyone manages to find a link, I would appreciate it.)
Feldman, Karlan, and Gerhardt also failed to rebut Turley’s skewed theory of the case. Democrats easily could have corrected that with their questioning. It should be noted, the three Democratic witnesses were not alone however, as 500 more experts have signed a letter asserting that impeachment did not require commission of a crime. That is unquestionably true from the Nixon precedent, however as the Report lays out, there is a significant numbers of crimes that were committed and in my opinion continue to be committed. As I wrote about in Part 3 of this series here:
The key question is, what is the best case to make with regard to Trump’s violations of his oath of office? Erwin Chemerinsky, Dean of the Berkeley School of Law and a preeminent Constitutional scholar gave his view of the answer to that question in a Talking Feds podcast here. He believes that the best choice is that violation that has the strongest evidence most likely to be understood by the public and most likely to be seen as the least partisan.
I agree with Dean Chemerinsky. From a strategic viewpoint, if commission of a crime did occur, it should be included in the statement of the case against Trump because it is easiest for the average voter to understand. This is true, even if the articles are only focusing on abuse of power and obstruction of Congress and the Report rebuts this. In fact, Trump’s and his enablers’ criminal misbehavior makes Watergate look like shoplifting in a penny candy store.
I would like to touch on Turley’s testimony since it relates to the Republican talking point that Trump committed no crimes. I thought Turley did a masterful job of using disinformation to confuse the issues by focusing on one vague fact and it appeared to me that none of the CNN or MSNBC commentators that I watched picked up on it. Turley focused on the meeting Zelensky was seeking with Trump. Turley then correctly asserted that the Supreme Court had unanimously held in the appeal of Governor McDonnell of Virginia’s conviction for bribery, that promising or providing a meeting, a phone call or an introduction in exchange for a thing of value did not meet the definition of bribery. Turley is correct, the Supreme Court did rule that the Federal bribery act did require that the bribe was to be exchanged for an “official act.” Turley’s statement of the case would have sounded very authentic and persuasive to the average voter.
What he deliberately ignored was the other multiple official acts that were an element of Trump’s scheme. He ignored the fact that while Trump might have been offering a meeting that did not represent an official act under the statue, but Trump was seeking an official act in the form of a Ukrainian investigation into the Bidens. This was sufficient to make it conspiracy to commit bribery as it did not fit within Supreme Court ruling. Finally, I would argue further that unlike the meeting of a governor with the private citizen, the meeting of two heads of state is clearly would be an official act. Further, Turley also ignored the two official acts that were involved, the military aid and the Javelins. While Turley’s legal legerdemain might have well executed, it so stretched the truth, it nearly rose to contempt of Congress.
Turning now to the issue of whether Trump’s misdeeds rise to the level of an impeachable offense, my first argument would be that under the rules of American jurisprudence, precedence should be given the preponderance of weight over a legal argument regarding the intent of the authors of a statute or constitutional provision. For example, it is generally excepted that the framers never intended to give the Supreme Court the authority to rule acts of Congress unconstitutional. However, the Supreme Court in the case of Marbury v. Madison argued that it did, even though such authority was not relevant to the decision. Nonetheless, the Supreme Court power to rule a Federal statute unconstitutional is now well settled law. The second Nixon article provides impeachment precedent regarding Trump’s actions in Ukraine that renders largely moot the need to look back more than six centuries at impeachments in England to try to parse the Framer’s intent. The conclusion of its discussion of past House impeachment practices supports my position. On page 54, the Report states:
Past practice of the House further illuminates the idea of a “great and dangerous offense.” President Nixon’s case is most helpful. There, as explained above, the House Judiciary Committee approved articles of impeachment on three grounds: (1) obstruction of an ongoing law enforcement investigation into unlawful acts by his presidential re-election campaign; (2) abuse of power in targeting his perceived political opponents; and (3) improper obstruction of a Congressional impeachment inquiry into his obstruction of justice and abuse of power. These articles of impeachment, moreover, were not confined to discrete acts. Each of them accused President Nixon of undertaking a course of conduct or scheme, and each of them supported that accusation with a list of discrete acts alleged to comprise and demonstrate the overarching impeachable offense. Thus, where a President engages in a course of conduct involving serious abuse of power, betrayal of the national interest through foreign entanglements, or corruption of office and elections, impeachment is justified.
(Citation omitted.)
The rule of law has been under attack by moneyed interests since the enactment of the Constitution. However, not since the Civil war has there been such a blatant attack on the rule of law by the White House and its backers. The rule of law is based on a number of key principles. There is a school of legal thought called Critical Legal Studies that has been around since the 1970’s that cynically asserts that the rule of law is basically lipstick on the pig of a legal system dedicated to the suppression of the poor and minorities in favor of property and the moneyed class. I tend to agree. At its best, the rule of law is built upon a base of sand that depends upon people of good will to adhere to its principles. That this country has not just survived this long but made substantial social progress despite the flaws in our legal system says a lot about the wisdom of the founding Fathers. It is therefore critical to push back against attacks on the rule of law and the current Administration regardless of the odds of a successful outcome in the Senate. Reasoning matters, otherwise democracy and the rule of law dies in darkness.
It is clear that Trump has an enemies list and the name on the top of the list is President Obama and by association alone, Vice President Biden will be on the list, even if he drops out of the race. The inclusion of the lie about the DNC server in Giuliani’s basket of conspiracies that he is promoting indicates that Secretary Clinton is also on his enemies list. The list also includes numerous professional Federal employees who crossed Trump including Director Comey and Ambassador Yavonovitch. This time instead of the CIA, IRS and the FBI, it is the State Department, the national security apparatus, the Justice Department (Barr), the Department of Energy, the Office of Management and Budget, and possibly the Vice President along with the White House staff. What is most important is that this Nixon abuse of power Article passed the Judicial Committee 28 to 10, with 7 Republican yes votes, more than any other Article. So having non-White House Federal employees assist the President and Giuliani in promoting a scheme to dig up or manufacturing dirt on the Bidens and Clinton is clearly impeachable abuse of power based on the Nixon precedent that had substantial bipartisan support. Democrats need to hammer this point home and pushback at the media for reporting Republican lies and failing to make the Nixon impeachment a key impeachment talking point.
Nixon’s second Article of Impeachment and his use of government agencies to go after people on his “enemies” list is chillingly similar albeit on a smaller scale. As I discuss in the next Article in this series, which draws heavily from the Report as well, in comparison, Trump’s conspiracy is compounded by the number of crimes, the number of agencies involved, the impact to national security interests, foreign emoluments and it being aided and abetted by numerous political appointees and even members of Congress. As it is the second time a President has engaged in such behavior except on a larger and more egregious scale, it is particularly important to our system of constitutional government and the rule of law that Democrats and the media push back at this specific behavior regardless of the outcome of a Senate trial. Otherwise, a reelected Trump or any future pbulican Presidents will feel even freer to use the power of the Executive to promote their own or their party’s interests.
It is also essential to the defense of our democracy and the rule of law that our citizens understand that Republican Presidents not only have not learned from the past but their abuses continue to expand. By drawing this comparison to past impeachment offenses it should be clear to any reasonable person, that Democrats have a duty to impeach and vote for Trump’s impeachment and removal. More importantly, Democrats need to set the groundwork for investigating, indicting and trying the various participants in the Ukraine conspiracy, including as appropriate Giuliani, White House counsel and even members of Congress if they were active participants.
I am on California time, and I will be posted early on Friday Eastern Time. I will be responding to comments and questions.
Nixon Impeachment Article2
Adopted 28-20 by the Committee on the Judiciary of the House of Representatives.
Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposed of these agencies. This conduct has included one or more of the following:
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He has, acting personally and through his subordinates and agents, endeavoured to obtain from the Internal Revenue Service, in violation of the constitutional rights of citizens, confidential information contained in income tax returns for purposed not authorized by law, and to cause, in violation of the constitutional rights of citizens, income tax audits or other income tax investigations to be initiated or conducted in a discriminatory manner.
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He misused the Federal Bureau of Investigation, the Secret Service, and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; he did direct, authorize, or permit the use of information obtained thereby for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office; and he did direct the concealment of certain records made by the Federal Bureau of Investigation of electronic surveillance.
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He has, acting personally and through his subordinates and agents, in violation or disregard of the constitutional rights of citizens, authorized and permitted to be maintained a secret investigative unit within the office of the President, financed in part with money derived from campaign contributions, which unlawfully utilized the resources of the Central Intelligence Agency, engaged in covert and unlawful activities, and attempted to prejudice the constitutional right of an accused to a fair trial.
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He has failed to take care that the laws were faithfully executed by failing to act when he knew or had reason to know that his close subordinates endeavored to impede and frustrate lawful inquiries by duly constituted executive, judicial and legislative entities concerning the unlawful entry into the headquarters of the Democratic National Committee, and the cover-up thereof, and concerning other unlawful activities including those relating to the confirmation of Richard Kleindienst as Attorney General of the United States, the electronic surveillance of private citizens, the break-in into the offices of Dr. Lewis Fielding, and the campaign financing practices of the Committee to Re-elect the President.
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In disregard of the rule of law, he knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.
In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.
Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.
