Laurence A. Tribe and Joshua Matz have cowritten a new book: To End a Presidency: The Power of Impeachment. Jennifer Rubin of the Washington Post interviewed them to see where they stand on the potential impeachment of President Trump. I found myself agreeing with most of their points. One in particular surprised me.
I hadn’t thought of it, but it’s true that Congress has the responsibility to enforce the Emoluments Clause of the Constitution which prohibits the president from taking things of value from foreigners.
“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
It’s true that Congress is currently controlled by the president’s party, but it’s also true that they have made no effort to make the president comply with the Emoluments Clause. They haven’t explicitly consented to Trump taking presents and emoluments, but nor have they taken any steps to rein him in. For Tribe and Katz, this lack of congressional action argues against treating Trump’s emoluments violations as high crimes or misdemeanors worthy of removing him from office. Things would be different if Congress identified violations and ordered the president to address their concerns. In that case, defiance on the part of the president would be a very serious matter.
In a scenario where one or both branches of Congress fall to the Democrats in the midterms, we could see the new Congress move to regulate how Trump operates his businesses in an effort to remove the potential for foreign influence on his decision making. This could involve compelled divestitures, a more thorough quarantine, a system agreed upon to add transparency and to handle problematic foreign receipts, or some solution I can’t currently imagine. It would be hasty to move straight to an article of impeachment without first making the effort to enforce the Constitution.
I also agree with Tribe and Katz that it’s generally a bad idea for the House to impeach a president when there is no prospect of a Senate conviction. The Republicans give us all the greatest incentive to cynicism in this regard, but there are two things to keep in mind. One is that we cannot know how compelling the case is for impeachment prior to seeing the evidence the special counsel has gathered. The other is that there’s a distinction between “no prospect” for conviction and something closer to a toss-up. During the impeachment of Bill Clinton, it was clear that he would never be convicted but the Republicans proceeded anyway. That’s not something that should be lightly emulated, and there are theoretically steps before impeachment like censure that could correct and punish a rogue president.
The thing to keep in mind is that this isn’t necessarily a case of venality, as in the case of Spiro Agnew, or abuse of power, as in the case of Nixon, or of perjury and potential obstruction of justice, as in the case of Bill Clinton. It could be or become all of those things, but the primary concern is about the possibility that the president is compromised by a foreign power, subject to blackmail, and that his behavior and decisions are reflecting an allegiance less to our country than to the interests of Russia. There’s also a concern that he’s putting his business interests ahead of a serious and considered foreign policy process, which may have already have influenced decisions he’s made with China, Indonesia, the Philippines, Qatar, the United Arab Emirates and Saudi Arabia.
It’s because of the seriousness of these concerns that we can’t really compare our current situation to prior presidents whose behavior has been criminal to one degree or another. I’d add to this that Trump’s behavior is erratic in a way we haven’t seen in our modern history outside of the last days of Nixon’s administration. It’s highly unusual that so many of his cabinet members and top advisors have referred to him as an idiot or a moron or questioned his mental health. Whatever else you might have said about Nixon or Clinton, they performed their basic duties competently and didn’t make glaring and costly mistakes on a routine basis that caused rifts with our allies and misunderstandings with our adversaries.
There’s an urgency to removing Trump from office that is independent of his alleged crimes.
Tribe and Katz look at this question from the perspective of a congressperson who will campaign with certain messages and then have to make certain decisions if elected or reelected to office in November. That’s an appropriate way to analyze this question, and they’re right when they say this:
If you are a member of the House and want to start thinking about whether there are grounds for impeachment where do you begin?
You should start by seeking answers to a few key questions: why did the Framers create an impeachment power; how has it been used and abused; what are the risks of action and inaction; and what decisions must I make throughout an impeachment process. Once you have a grip on the power you’re exercising, you need to learn the facts — not as presented on cable TV or in op-ed columns, but as identified by a respected, thorough and impartial investigator. That might mean trusting a special counsel or the House Judiciary Committee, or it might require the creation of a special bipartisan House committee. At all stages of this process, you must do your best to act with principled impartiality and seriousness of purpose. That doesn’t mean ignoring your constituents, your political party or your own political vision. But it does require a greater measure of caution and high-minded statesmanship than you bring to the rest of your work. You must constantly ask yourself: “Would I be approaching this the same way if I had the opposite view of this president’s political ideology and party affiliation?” And in the end, you must decide if the president truly poses a continuing threat to the Republic.
For my part, the president most definitely poses a continuing threat to the Republic but that doesn’t mean necessarily that he has provided Congress with the grounds to remove him from office. To be more precise, the case has been made for me but it has to be made in a compelling enough fashion to make a conviction at least a possibility. Part of high-minded statesmanship and seriousness of purpose is being honest with yourself about where the remedies presently stand.
A Democratic congress’s first priority should be to correct the president’s behavior where it has the constitutional authority and responsibility to do so. Its second priority should be to receive Mueller’s evidence (assuming it hasn’t already been delivered by then), and to work over the information in a systematic way. If that means calling more witnesses and compelling more documents, then that’s the prudent course. At some point, there will be a choice to make. Will the House draft articles of impeachment and pass them? When they’re making that decision, their prospects for a conviction should weigh heavily, but if the case is compelling that the president has been compromised, I don’t see how they can fail to move ahead.
If the case is that compelling, the way the Republicans are treating this investigation now will no longer be operative. We shouldn’t prejudge how they’d act in those circumstances. I can envision a future where the case is indisputable and the GOP refuses to budge. But I can also envision a future where justice is done because the facts really leave no other choice.
This makes a lot of sense. Congress is the Constitutional agent of enabling or prohibiting foreign bribery of the President. This is also true for other high officials like the Secretary of State; they can’t keep any of those wonderful gifts they get from their foreign peers.
If the Democrats were to take over both houses of Congress in November but even if it was just the HOR, they should pursue this course of action. If Congress voted that Trump could not continue to own, say, the Trump International Hotel or that the Trump Organization couldn’t continue to receive investments in its properties from foreign governments that would put Trump in a real dilemma. Does he give up the Presidency so he can continue to practice his endless grifts, frauds and money laundering or does he agree to reform himself. I honestly don’t know what he would do; he’s that corrupt.
He’d probably just ignore Congress, tell them to go pound sand and do as he pleases.
” Its second priority should be to receive Mueller’s evidence (assuming it hasn’t already been delivered by then),. . .”
Delivered, or destroyed, which is a possibility I cannot rule out as long as the Republicans control congress.
I am increasingly seeing Democrats taking the HOR, but failing to gain the Senate as the savior of the Trump Administration, not it’s end.
The Orange Shit Gibbon is good at Reality TV. He could spend the next two years twitter sparing with a Democratic House, signing Liberal Tears EO’s, while Senate Republicans keep court packing.
The prime time/major circulation news media will, at best, be unwilling to referee or, at worst, under their owner’s orders to get President Stupid a second term. Therefore, the “high crimes or misdemeanors” everyone already knows he’s committing, but still a fire-able offense to talk too much about, will be drowned in the Look How Dysfunctional Washington Is media bathtub.
I’m sorry but I have real trouble accepting any and all arguments against impeaching Trump.
He must be removed from office. How could there be the slightest question about this? It’s hard to imagine a position being more obvious or clear.
You’re obviously not a Republican. đŸ™‚ They have absolutely no problem not understanding this necessity.
. . . understand something, when his salary depends upon his not understanding it!” –Upton Sinclair
538 had a really good discussion about the effect on the campaign of campaigning or not on impeachment for both sides and included the mechanics of this with a list of the 15 most lefty republican senators that they’d need to get on board for impeachment. Granted that will change next year but from that list I can only see them getting about 10. 15 is Crapo from ID.
Anyhow, I would generally agree with your entire post except for the idea that impeachment without a possibility of conviction is something to be avoided. Even if it might rebound negatively sometimes you have to do what the evidence calls for even if it ultimately fails. On a more practical level even a failed impeachment will lay bare a series of crimes to the public and demand to be considered acceptable grounds for removal or not.
Regardless even before that do the investigations, use congressional power to try and reign in Trump etc. Of course this all depends on whether Democrats can take a house of congress which I think is looking less likely these days.
if the shoe was on the other foot?
I think that we have not pursued “truth and reconciliation” in this country for all the past misdeeds – especially the war in Iraq.
That has led to some of those involved never facing justice, and ascending to even higher positions of power! And those most culpable have are often back with their same decrepitude, often with a louder megaphone!
The Democrats giving in for fear of some backlash has just delayed the backlash some, but not prevented it. Benghazi has stayed in the public consciousness, while all the Iraq costs are completely gone from public discourse.
I am sure the Republicans would bring impeachment proceedings at much less provocation (they did with Clinton) without any thought of whether it could succeed!
. . . mid-term, when that’s virtually unheard-of for the opposition party 6 years through a president’s two terms. (Also almost certainly cost Newtie the Speakership — not that that’s a bad thing.)
Not saying that’s a reason not to do it. I tend to agree with you and disagree with booman that the cases are different enough — especially considering the strength of evidence and scope of criminality and collusion that Mueller seems likely to nail down — that it’s necessary (assuming Mueller comes through) even if it comes at a partisan political cost.
The ’98 result seems to have been a public backlash against the Repubs’ partisan (“real”) “witch hunt” of ginned-up non-scandals, even in the face of disgust with Clinton’s personal behavior that that witch hunt stumbled onto.
Obviously, an enraged backlash would again be the reaction of the Trumps’ Dupes Rump GOP — but they’re a shrinking minority nationally. (It will still be very ugly.)
With Trump, the wrongdoing already public is so egregious and pervasive it’s a slam-dunk case for impeachment (but then it was a slam-dunk case against election, too, and here we are). With what Mueller’s likely to add, with the dots connected, I’m expecting a case so compelling it will be treasonous (in the common, not technical legal sense) not to convict.
Still, agree with booman’s counsel to keep powder dry, let that evidence accumulate and be revealed, exhaust legislative options to constrain/punish Trump, and reserve judgment (including as Dem electoral candidates) until that Judgment Day.
I’m seeing some interesting conversations on the ability of Mueller to actually indict Trump. If one does some reading it becomes apparent that the Pres is protected from being tried during his presidency.
However, there’s a good argument that he can be indicted during his presidency. The follow through of an actual trial can be set to run after he leaves office. In the meantime, the charges will be in the public purview day after day begging to be addressed by Congress.
Last week I was pretty sure Stormy’s case had an equal chance of bringing Trump down as Mueller, but now with the Chinese story raising its hand to be heard with the emoluments clause abuse it looks like we have a 3way! (Something Trump probably understands well).
“this lack of congressional action argues against treating Trump’s emoluments violations as high crimes or misdemeanors worthy of removing him from office.”
Hey, I’m not a constitutional lawyer, not hardly. Nor have I read the book. However, I don’t think it’s a good idea to judge what the law is by whether it’s being enforced or not. Laws that are not enforced are still laws. The law may sleep but it never dies.
Clearly the reason it’s not being enforced is because the GOP controls congress.
Well, you may say, isn’t just as political if it IS enforced when the Democrats do control congress? Yes it, in a sense. A political, but not a legal sense. The law was there all along, it doesn’t BECOME law because the Democrats want to enforce it any more than it becomes not law because the Republicans don’t enforce it.
So I respectfully disagree with that interpretation.
If we have a national conscience or soul left, we must impeach, we simply must.
The expertise is out there.