The Case for Impeaching Trump

by Elizabeth Holtzman

  Causing a Witness to a Law Enforcement Inquiry to Issue Misleading Statements

  A pivotal moment under investigation by the special counsel is the June 2016 meeting at Trump Tower in New York where Donald Trump Jr., campaign manager Manafort, and the president’s son-in-law, Jared Kushner, met with Natalia Veselnitskaya and other people she brought along. Veselnitskaya, a Russian lawyer, has acknowledged that she was an informant for a high-level Russian official—likely its prosecutor general, the country’s chief legal officer.

  The meeting was set up via emails between Trump Jr. and a British music publicist with ties to a Russian oligarch, Aras Agalarov, who had partnered with Trump in the Miss Universe pageant in 2013, held in Moscow, and was also reportedly close to Putin. The email chain indicated that participants, at least four of them Russian nationals, would “provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.” It also mentioned that the information was “part of Russia and its government’s support for Mr. Trump.” In agreeing to the meeting, Trump Jr. wrote: “[I]f it’s what you say I love it.

  Many months later, after news of the meeting broke in 2017, President Trump coordinated with his son to craft a story about it. On July 8, as he was flying on Air Force One to the United States after a G20 meeting of heads of state (including a private, nearly hour-long one-on-one with Putin with no US translator or aide present), President Trump personally dictated a statement to the New York Times for his son. Its essence was that the meeting had nothing to do with Russian interference in the elections: “We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at the time and there was no follow up.” After the email chain setting up the meeting was disclosed a day later, Trump Jr.’s explanation shifted. In a second statement, he acknowledged that it had been set up to obtain negative information about Clinton, but, he emphasized, in the end, the meeting was really about adoptions. Trump Jr. has stuck to the topline narrative devised by his father in that statement. In sworn testimony to the Senate Judiciary Committee in September 2017, he stressed repeatedly that the meeting was focused on adoptions.

  President Trump’s explanation of his involvement in crafting his son’s statement has also moved about. In July 2017, one of his lawyers indicated that President Trump was not involved at all. In August 2017, his press secretary said he “weighed in” on but did not “dictate” the statement. Finally, a January 2018 memorandum sent by President Trump’s lawyers to Mueller confirmed that Trump was the author of the statement. “[T]he President dictated a short but accurate response,” the memo says. The statement drafted by President Trump about adoptions was not accurate; it was a story, a clear attempt to reframe and obfuscate the real purpose of the Trump Tower meeting, which was to get dirt on Hillary Clinton.

  President Trump finally slipped eight months later, admitting the real purpose of the Trump Tower meeting in an August 5, 2018, tweet: “This was a meeting to get information on an opponent, totally legal and done all the time in politics—and it went nowhere ….” His story shifted again later in August in a statement to the Washington Post: “nothing happened after the meeting concluded.” He then qualified his statement with the lawyerly “to the best of my knowledge.”

  The president’s involvement in influencing a key witness’s recollection of a critical event could form a basis for impeachment under the precedent established in the first article of impeachment against Nixon; its third element dealt with “[a]pproving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States.”

  Though more facts are needed to flesh out a charge against President Trump for the attempt to influence a witness, as a participant in the Nixon impeachment inquiry, I believe that it also falls under the charge of “deceiving the people of the United States.” In the impeachment inquiry, one of Nixon’s main deceptions involved his false claims that the Watergate cover-up had been fully investigated by John Dean, his White House counsel—who, according to Nixon, found that no one in the White House was responsible. The Dean “investigation” was a fraud concocted by President Nixon. Similarly, the memo dictated by President Trump for his son, disguising the true intent of the Trump Tower meeting, appears to be a fraud, with the goal of hiding the truth from the American public.

  Interference by Suggestions of Presidential Pardons

  President Nixon authorized offers of pardon to the burglars to keep them quiet. No pardons were issued, but the offers became one of the grounds for the Judiciary Committee’s impeachment vote. Although the Constitution grants the president broad pardon powers, a president who uses them to impede a criminal investigation by buying silence and discouraging cooperation with a federal investigation/prosecution commits an impeachable offense. This precedent is crystal clear. It is indelibly imprinted on my memory, because the pardon offers were part of John Dean’s “cancer on the presidency” conversation in which he warned the former president about the cover-up. Watergate should have given President Trump pause, but apparently it did not.

  In fact, the president has disregarded the Watergate precedent, tweeting on July 22, 2017, that he has “complete power to pardon.” The tweet, according to the New York Times, may have been in response to a Washington Post report that the president had discussed pardons, as well as efforts to limit and “stymie” the Mueller investigation, with his advisers.

  President Trump’s formulation of his pardon power is incorrect. It does not, for example, extend to crimes under state law—nor, in my opinion, to a self-pardon. The evidence, however, is not conclusive yet with respect to whether President Trump has clearly abused the pardon power in Watergate fashion, although he may well have. On December 15, 2017, after his former national security adviser was indicted and questions were raised in the press about whether he would pardon Flynn and others, including himself, President Trump declared that he wasn’t considering pardons “at that time”—leaving the door open. Indeed, months earlier, in March 2017, President Trump had suggested as much when he tweeted: “Mike Flynn should ask for immunity in that this is a witch hunt (excuse for big election loss), by media & Dems, of historic proportion!” The president’s comments appear to be signals to Flynn and possibly others not to talk too much to Mueller’s investigators in the hope of getting a pardon down the road. Further investigation is needed to uncover what the president may have meant by these comments and whether he told others about any plans to pardon Flynn.

  In addition, it has been widely reported that John Dowd, President Trump’s former lawyer handling the Mueller investigation, discussed presidential pardons in the summer of 2017 with lawyers for Flynn and Manafort. Dowd has refused to comment on the reports. An investigation is needed to ascertain whether Dowd had these conversations, and if so, what was said, and whether Dowd was acting at President Trump’s behest and what, if any, instructions he received from President Trump.

  President Trump may again have flirted with pardoning a key witness. After Manafort’s August 2018 conviction by a Virginia jury, and with a second criminal trial looming, President Trump may have tried to signal to him by praising him. Manafort, the president tweeted, was “brave” for refusing to “break” under pressure. “I feel badly for Paul Manafort, I must tell you.” Asked by a Fox reporter whether he would pardon Manafort, the president replied: “I have great respect for what he has done in terms of what he has gone through.…”—leaving the door to a pardon still open. In the same interview, President Trump chastised “flippers,” or people who agree to testify against another person. “It’s called flipping and it almost ought to be illegal,” Trump said. “I know all about flipping, 30, 40 years I have been watching flippers. Everyt
hing is wonderful and then they get 10 years in jail and they flip on whoever the next highest one is or as high as you can go.” When the Washington Post reported that President Trump had asked his legal team about pardoning Manafort, the White House press secretary, apparently further opening the door to a pardon, explained that “the president has not made a decision on pardoning Paul Manafort or anyone else.”

  Despite these signs of a possible pardon, both Flynn and Manafort have pleaded guilty to crimes and agreed to cooperate with the Mueller probe.

  While more facts are needed to flesh out possible charges, if President Trump authorized pardon offers in return for non-cooperation with Mueller—or even suggested the possibility in tweets or comments to the media—they could be impeachable offenses. Even if he did not succeed in influencing Flynn and Manafort, the very fact that he tried to would be impeachable. Under the ninth part of Article I against President Nixon, “Endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence and false testimony” is an impeachable offense.

  President Trump’s attacking “flipping” or cooperation with a prosecutor may be another abuse of his office. Discouraging a witness from talking to a prosecutor may be improper, if not criminal, for a civilian; but for a president, required to take care that the laws be faithfully executed, it may be a high crime and misdemeanor. The lessons of Watergate resound here: presidents cannot—without becoming liable to impeachment—use the power of the presidency to interfere with an investigation to shield themselves from criminal prosecution.

  Persistent Efforts to Undermine the Investigation, Investigators, and Witnesses

  Thus far, the Mueller investigation has indicted thirty-four people, more than two dozen of whom were Russian operatives, and three companies, as we have seen. It has procured five guilty pleas. So it seems absurd and outrageous to characterize the investigations as a witch hunt, wild goose chase, or hoax. Nonetheless, President Trump has repeatedly belittled the investigation into Russian election interference in this way. In the two-month period between April 1 and May 31, 2018, he attacked the FBI, Comey, Mueller, the Russia “witch hunt,” and the “deep state” more than fifty times. He called the Russia investigation a “witch hunt” forty-four times just in June and July 2018. After the Parkland school massacre, he made the outlandish claim that the FBI had caused the deaths of innocent Americans, mostly children, by “spending too much time trying to prove Russian collusion with the Trump campaign—there is no collusion. Get back to the basics.”

  This illustrates a grave risk posed to the rule of law by President Trump’s astounding, unprincipled, and unfounded attacks on the integrity of federal law enforcement: if he were to convince millions of Americans that the FBI is politically biased, consequences could range from undermining public willingness to cooperate with the FBI to destroying the credibility of FBI agents, making it harder for the government to win convictions in ordinary, nonpolitical cases.

  These attacks may also serve to poison the minds of a jury selected to sit on any of the trials that may arise from the many indictments Mueller has brought.

  President Trump has relentlessly attacked Comey and top officials at the FBI who might serve as witnesses to his efforts to interfere in the Russia investigation. He has also denigrated the FBI, the CIA, Mueller, and the members of his team by charging them with alleged conflicts of interest, which the Justice Department itself has refuted. The president may well have taken these attacks to Nixonian levels on at least four occasions:

  In June 2017, Foreign Policy reported that President Trump “pressed senior aides … to devise and carry out a campaign to discredit senior FBI officials after learning that those specific employees were likely to be witnesses against him as part of special counsel Robert Mueller’s investigation.” If true, using the power of his office to discredit potential witnesses against him can easily form a basis for impeachment. It is a great and dangerous offense for presidents to use the powers of the presidency to block or discredit a potential case against them—the gravamen of the first two articles of impeachment against Nixon.

  In September 2017, President Trump sent a letter to Deputy Attorney General Rosenstein requesting a federal grand jury investigation of Comey, a key witness to his apparent obstruction of the Russia investigation.

  In March 2018, following the firing of FBI Deputy Director Andrew McCabe, President Trump tweeted: “Andrew McCabe FIRED, a great day for the hard working men and women of the FBI. … He knew all about the lies and corruption going on at the highest levels of the FBI!” Earlier in 2018, at President Trump’s behest, Sessions had pressured FBI Director Christopher Wray to fire McCabe. Wray threatened to resign if his deputy were removed. Ultimately, Sessions did fire McCabe, reportedly to curry favor with the president, after a critical report by the inspector general regarding McCabe’s alleged lack of candor about a leak to the press in 2016. The firing could amount to retaliation against a prospective witness, a possible crime and/or impeachable offense. McCabe may have been in President Trump’s crosshairs because he was a witness to several of Comey’s calls with the president. In an introductory meeting with McCabe, who was then acting FBI director, President Trump reportedly asked about how he had voted in the 2016 election and attacked McCabe’s s wife, who had run for office in Virginia as a Democrat and received funds from a Clinton ally. Trump denied having ever asked the question about how he’d voted and downplayed its significance by saying it wasn’t “a big deal.” Of course, dealing with subordinates on the basis of their political views or affiliations or those of their spouses may be an abuse of power—and may in this case constitute another part of the president’s effort to signal that he wants political loyalty from governmental agencies that need to do their work on a nonpartisan and professional basis. This calls to mind Nixon’s Enemies List, where penalizing people for their political views created impeachment liability.

  These attacks, as well as others by the president, may have been intended to (and did in fact) send a signal to senior law enforcement officials that their jobs were at risk if they defied him or weren’t “loyal.” The harmful impact of such intimidation on professional law enforcement can be incalculable. Just asking the question shows the cloud that now hovers over the FBI, undermining the public’s confidence in its impartiality and professionalism and possibly its willingness to cooperate with it and accept the honesty of its agents.

  In August 2018, President Trump threatened to use his unilateral authority to revoke security clearances to retaliate against people who he felt were hostile to him. He revoked the security clearance of former CIA director John Brennan and indicated that he was still considering whether to withdraw the clearances of at least one other probable witness in the Mueller inquiry, former acting attorney general Sally Q. Yates, who had briefed the White House about Flynn’s blackmail vulnerability.

  In his zeal to attack the Mueller investigation, President Trump was partly responsible for the outing of an FBI Confidential Human Source. By May 2018, at the latest, the president learned that the FBI had used a confidential informant in 2016 to speak with three Trump campaign employees regarding Russian efforts to infiltrate the campaign. President Trump learned of the informant’s existence as members of the House Intelligence Committee were attempting to gain access to Justice Department material on that informant. Simultaneously, several conservative news outlets began speculating about the informant’s existence and identity. The Justice Department tried vigorously to protect the informant’s identity, but, rather than protecting an American intelligence source, President Trump confirmed his existence by tweet. He branded the intelligence effort “Spygate.” Shortly after President Trump gave the signal that the informant was fair game, his identity was blown. Presidents who misuse their powers to out an intelligence agent—with all the negative consequences for
US intelligence activities that protect our country from hostile powers—in order to exonerate themselves from criminal or other personal legal liability may commit an impeachable offense, as the Nixon precedent in Watergate shows. Presidential powers are to be used for the benefit of the country, not for avoiding prosecution or other issues of personal liability.

  In a CNN interview, President Trump’s lawyer Rudy Giuliani acknowledged that President Trump did this (and made attacks on law enforcement) for public relations purposes and to lay the groundwork for discrediting any impeachment inquiry:

  Of course, we have to do it [be aggressive in these attacks] in defending the president. We are defending—to a large extent, remember … we are defending here, it is for public opinion, because eventually the decision here is going to be impeach, not impeach. Members of Congress, Democrat and Republican, are going to be informed a lot by their constituents. So, our jury is the American—as it should be—is the American people. And the American people, yes, are … Republicans, largely, independents, pretty substantially, and even some Democrats now question the legitimacy of [the Mueller investigation].

  This echoes President Nixon’s strategy after the Watergate burglary became public. According to the notes of his aide H. R. Haldeman, President Nixon called for a “PR offensive to top this. … We should be on the attack for diversion.”

  Spygate was not the first time that President Trump had caused the harmful release of sensitive law enforcement material for personal public relations purposes. In February 2018, he declassified a report prepared by the Republican majority staff of the House Permanent Select Committee on Intelligence (the Nunes memo). Both the Department of Justice and the FBI strongly opposed the declassification, because it would compromise sources and methods and was misleading.