In January 2018, President Trump had met with Deputy Attorney General Rosenstein, who had requested the meeting to prevent the declassification of the Nunes memo. President Trump reportedly asked Rosenstein where the Russia investigation “was headed.” In addition, President Trump asked Rosenstein whether he was “on my team”—that is, loyal—much as he had with Comey. According to CNN, Rosenstein “demurred” on the direction of the investigation and answered: “Of course, we’re all on your team, Mr. President.” After the meeting, President Trump, ignoring Rosenstein’s advice on the matter, declassified the Nunes memo.
The Nunes memo concerned a ruling by the Foreign Intelligence Surveillance Act (FISA) court, which oversees requests by the United States Government to conduct surveillance for foreign intelligence purposes. In 2016, the court had approved an FBI and Justice Department request for a warrant to surveil Carter Page, a former foreign policy adviser to the Trump campaign believed to be a target of Russian recruitment efforts. The Republican majority of the House Intelligence Committee argued that the FBI and the Justice Department had failed to advise the FISA court that the Steele dossier, one of the predicates for the surveillance request, had been paid for by the Hillary Clinton campaign and the DNC. The Democratic minority of the House Permanent Select Committee on Intelligence released its side of the story, showing that the investigation into the Trump campaign’s possible collusion with Russia had begun weeks before the Steele dossier surfaced, and that the FISA court had in fact been notified that the dossier had been paid for by a party interested in opposition research on candidate Trump. The Nunes memo, which reflected the Republican majority’s position, caused President Trump to claim that it vindicated him. But, of course, that was not the case—and the Russia interference investigation continues. Providing false information to the American people to distract from and to cover up the significance of a serious criminal investigation may be an impeachable offense, as it was in the Nixon case.
In sum, President Trump caused the release of a one-sided and misleading memo on a complex issue to undermine the credibility of two government agencies in a counterintelligence matter before the courts, seemingly for the purpose of securing personal exoneration and not to benefit the country.
As with similar actions by President Nixon, President Trump’s attacks and actions regarding the investigation of Russian election interference appear to have been made for no apparent reason other than to protect himself from liability. The Nunes memo, like the Dean investigation, appears to have been a red herring—an effort to distract from the underlying seriousness of the investigation and to create a false exoneration. Under the Nixon precedent, Trump’s pressing for the release of the Nunes memo may be an impeachable offense both as an abuse of power and as an effort to impede an investigation.
Improperly Seeking Information About the Investigation into Himself
As part of the Watergate cover-up, Nixon met with the assistant attorney general in charge of the Criminal Division, Henry E. Petersen, and asked for detailed information of the Watergate investigation. Whether because he was intimidated or flattered, Petersen gave Nixon the information he asked for, which Nixon in turn provided to former top aides to help them try to avoid criminal prosecution. His acts in seeking and misusing the information in order to obstruct the Watergate investigation formed one of the grounds for the Judiciary Committee’s impeachment vote.
It is worth noting that a similar pumping approach was made by President Trump to Deputy Attorney General Rosenstein, who reportedly rebuffed it, as discussed previously. The approach itself, coupled with the question about whether he was on the president’s “team,” may be an abuse of power and an effort to impede an investigation. More information would be needed about exactly what transpired.
President Trump appears improperly to have tried to use the House Intelligence Committee as a back door to obtain information about the investigation. When the committee was seeking documents relating to the scope of Mueller’s investigation in April, the Justice Department resisted. President Trump attacked the decision, tweeting: “So sad that the Department of ‘Justice’ and the FBI are slow walking, or even not giving, the unredacted documents requested by Congress. An embarrassment to our country!” Then, in May, the committee began seeking documents relating to yet another confidential informant who had met with members of the Trump campaign. Again, the Justice Department resisted. This time, in addition to tweeting his disapproval of the Justice Department’s stance, President Trump demanded that Rosenstein, Wray, and Coats come to the White House to discuss the matter. After meeting with President Trump, they agreed to give the documents to members of Congress.
Initially, only the Republicans were to receive the documents, but after significant pushback, it was agreed that they would be released to a bipartisan group of members. Justice Department leadership arrived on Capitol Hill to provide the classified documents and a classified briefing, accompanied by White House chief of staff John Kelly and Emmet Flood, White House counsel for the Russia investigations. Both Kelly and Flood were there at President Trump’s direction and instructed to relay his words. Two Democrats at the briefing warned Kelly and Flood that their attendance “could give off the appearance that the White House abused its authority to gain insight into an investigation that implicates the president.” Kelly and Flood left before the material was discussed.
According to Giuliani, their attendance was a justifiable effort to obtain the information being provided to Congress. The New York Times quoted Giuliani: “‘We are certainly entitled to know’ what information the government has on the F.B.I. informant. … The meeting ‘cuts off a long subpoena.’” At issue, as Giuliani later told the Huffington Post, was that the president wanted information about the informant before deciding whether to agree to be interviewed by special counsel Mueller. “We can’t let our guy go in and be questioned without knowing this.”
Normally, defendants in a criminal inquiry are not allowed to look into the prosecutor’s files for the purpose of tailoring their defense. President Trump may have abused his authority by allegedly using the powers of his office to try to obtain access in order to determine whether to cooperate with the prosecutor and expose himself to criminal or other jeopardy. That may be an effort to impede the Russia investigation and thus may constitute a high crime and misdemeanor.
Demanding Investigations of Political Opponents for Private Political Desires
In late October and early November 2017, President Trump began publicly pushing for a new Justice Department investigation of Hillary Clinton. On October 30, the day Manafort was first indicted, President Trump tweeted: “Sorry, but this is years ago, before Paul Manafort was part of the Trump campaign. But why aren’t Crooked Hillary & the Dems the focus?????”
That same week, in a November 2 interview with conservative talk-radio host Larry O’Connor, President Trump complained that as president he is not personally supposed to direct law enforcement to investigate Clinton. “The saddest thing is that because I am the president of the United States, I am not supposed to be involved with the Justice Department. I’m not supposed to be involved with the FBI. I’m not supposed to be doing the kind of things I would love to be doing, and I am very frustrated by it. I look at what’s happening with the Justice Department, why aren’t they going after Hillary Clinton with her emails and with her dossier and the kind of money? I don’t know.”
A day later, he tweeted: “Everybody is asking why the Justice Department (and FBI) isn’t looking into all of the dishonesty going on with Crooked Hillary & the Dems … People are angry. At some point the Justice Department, and the FBI, must do what is right and proper. The American public deserves it!” Ten days later, the Justice Department confirmed in a letter to Capitol Hill that it had tasked senior prosecutors to explore whether alleged misdeeds by Hillary Clinton warranted further investigation, despite that fact that her actions were examined fully by the FBI in 2016 and found not to me
rit prosecution.
It will take further investigation to determine whether the Justice Department opened this new analysis in response to President Trump’s political tweets and demands or came to the decision independently and as a matter of professional decision making. Regardless, President Trump’s demands for a further investigation of Clinton under these circumstances may have been a misuse of power in a number of ways, because they appear to have been motivated by the “public relations” strategy highlighted by Giuliani, his lawyer, to distract attention from his misdeeds rather than for legitimate governmental objectives. Forcing the Justice Department into the role of prosecutor and investigator of a political opponent is something we associate with dictatorships and autocratic societies. In a country governed by the rule of law, prosecution may not be used for political retribution, payback, or for reasons of publicity. Prosecutions are commenced when professional prosecutors and investigators determine that there is solid basis to believe a crime has been committed.
Obstruction of the Administration of Justice
President Trump has made the breathtaking claim that a president cannot obstruct justice. In a letter his lawyers wrote in January to special counsel Mueller, they argued that “the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and … he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.” In effect, he is justice and justice is him. The argument reeks of monarchical assertions of unfettered privilege—of L’état, c’est moi (“I am the state”), attributed to France’s Louis XIV. In such assertions, as well as in his demands of loyalty from Comey, Sessions, and Rosenstein and his condemnation of witnesses as “flippers,” he brings to mind not so much autocrats or monarchs as caricatures of organized crime leaders from movies and books.
President Trump’s argument turns on two points. One, the president has the right to set law enforcement priorities. Two, the president has the right, as the nation’s chief executive, to fire people. While both points may be generally true, under the present circumstances and in the present context, they cannot withstand scrutiny and reflect a view that the president is above the law.
Consider the president’s right to set law enforcement priorities. No one disputes that President Trump could decide that the nation should increase its focus on counterterrorism or domestic terrorism prosecutions. He could also decide on a zero-tolerance policy toward marijuana possession. People might dispute the wisdom of his priorities, or decry the consequences of them, but no one could dispute his authority to make such decisions (or try to impeach him for it). But does anyone think that President Trump’s desire to shut down the Mueller investigation is about an objective, dispassionate ordering of prosecutorial priorities? By the most aggressive accounting available, the Mueller probe has cost approximately $18 million, or a puny 0.053 percent of the Department of Justice’s budget and not enough to have a material impact on the agency’s ability to pursue its law enforcement priorities. The special counsel’s office has approximately eighteen lawyers, including Mueller himself, and eleven FBI agents, or 0.027 percent of the 114,500 Department of Justice personnel. Numbers aside, President Trump’s actions and words reveal that his interest in the Mueller probe is deeply personal. His mantra “No Collusion” refers consistently to his actions and those of his family and close associates during the 2016 campaign. He has shown interest only in the cases against people close to him and/or who might have evidence against him (Manafort, Cohen) yet has been silent about prosecutions against others (Papadopoulos, van der Zwaan).
A clear example that his efforts to shut down the Russia investigation are only about protecting him came in the spring of 2018. On April 19, Bloomberg reported that Deputy Attorney General Rosenstein had advised President Trump on April 12 that he was not a target of the Mueller or New York–based Cohen investigations. Although his attacks at that time on Mueller and Rosenstein had been so vehement they raised questions of whether he was going to fire either or both in short order, the president switched gears. He told his advisers, “[I]t’s not the right time to remove either [Rosenstein or Mueller] since he’s [that is, President Trump’s] not a target.…” Note that President Trump here is basically admitting he was prepared to use the powers of the presidency to thwart normal processes of criminal accountability just to protect himself, and when it was not necessary to do so any longer, he backed off.
Indeed, he said it outright in an April 2018 tweet: “No Collusion or Obstruction (other than I fight back).” The operative word is “I,” and what President Trump does not seem to fathom is that he can challenge an investigation, as anyone in this country can. What a president cannot do is “fight back” using the powers of the presidency. They are in his hands for the benefit of the people of this country, not for himself alone.
Perhaps that is why President Trump has tried to muddy the waters by asserting that the Mueller investigation is “an attack on our country.” The underlying assumption, that what is not good for Donald Trump is not good for the country, hearkens back to his lawyers’ assertions that he cannot break the law because he is the law. The president is NOT the same as the United States. It’s black letter law: the case to obtain the tapes from President Nixon was entitled United States v. Richard Nixon, not Nixon v. Nixon.
Although a president has broad authority to hire and fire people in the executive branch, an improper or corrupt motive can turn a legal firing into an impeachable act, especially when coupled with a superabundance of other improper acts. President Nixon sealed his fate in late 1973 when he fired the special prosecutor, Archibald Cox, who was investigating Watergate. The firing was not the only reason for impeachment, but it was the trigger, sealing the decision that an impeachment inquiry was warranted by both Republicans and Democrats on the House Judiciary Committee. President Trump did not fire Comey because he thought the FBI needed new leadership, but because he thought it would alter the course of the Russia investigation. He has made that abundantly clear. Even though President Trump has not yet fired Sessions, Mueller, or Rosenstein, his relentless attacks on them are unquestionably an effort to force them to alter their behavior and may already have.
The many federal criminal laws dealing with obstruction of justice share three things, or “elements of the crime.” First, they bar influencing, obstructing, or impeding the administration of justice—or even attempting to do so. Second, they require that the interference have a specific object, be it a proceeding or an official. And finally, they require corrupt intent. A wide array of other statutes criminalize specific obstructive behaviors, such as witness tampering, witness retaliation, and covering up, destroying, altering, or falsifying records in an investigation. An impeachment need not prove any violation of these specific statutes; as we have noted previously, impeachment does not require that the president commit a crime. Still, an impeachment for a cover-up or for impeding the administration of justice might want to take notice of the law on obstruction of justice.
The Case for Impeachment
The first article of impeachment against Nixon focused on his cover-up of the Watergate burglary by impeding investigations into it. That article did not claim that Nixon violated the federal obstruction of justice or any other criminal statute—even though the cover-up resembled the crime of obstruction (and probably was obstruction). As discussed previously, impeachment does not require the commission of a crime, and so the responsibility for dealing with President Trump’s possible criminal liability lies with Robert S. Mueller and others, not the House Judiciary Committee.
Nonetheless, it is worth noting that the Watergate grand jury named President Richard Nixon as an unindicted co-conspirator in connection with the prosecution of a number of his top aides, including H. R. Haldeman, his chief of staff; John Ehrlichman, another top White House aide; and John Mitchell, the
former attorney general, for obstruction of justice, conspiracy, and perjury. Nixon was the first president to be so named. These defendants were convicted and served prison sentences—in fact, forty-nine people were convicted of crimes related to Watergate, a testament to the breadth of misconduct that occurs when a president enlists his campaign aides, his staff, and his cabinet in a cover-up and other abuses of presidential power.
“Richard M. Nixon,” reads the summary of each of his three articles of impeachment, “has acted in a manner contrary to his trust as president and subversive of constitutional government.” What follows reads: “to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.”
While the full scope of President Trump’s efforts to impede the investigations into Russian interference in the 2016 presidential election is as yet undetermined, the standard for commencing an impeachment inquiry has been more than met. From the firing of Comey, to the attacks on the investigation, to the release of false exonerating reports and information, to the apparent offers of pardons to keep potential witnesses from talking, Trump’s behavior appears to replicate conduct for which a vote to impeach Nixon was taken by the House Judiciary Committee. Significantly, we are not talking in this chapter about isolated incidents, but a far-reaching and continuing groundswell of assaults on the rule of law. Presidents cannot stop an investigation into possible misconduct—they can’t pick their investigator or their prosecutor. That was the principle established in the Nixon impeachment, and it is a precedent we need to follow.
We are in an intensely polarized moment in our nation’s history, but what we must clearly attend to is that we have a chief executive who is apparently trying to destroy a core democratic value; whose relentless assault on the integrity, independence, and professionalism of our prosecutorial institutions has no modern parallel, and who reduces the might of federal law enforcement to something he can use or manipulate for personal purposes and has the temerity to admit it. In late 2017, he asserted: “I have absolute right to do what I want to do with the Justice Department.” He does not; nor do we have to wait until he has succeeded in so doing before we begin an impeachment inquiry.
The Case for Impeaching Trump Page 10