Impeach

by Neal Katyal

  This worried Whigs in Congress—and their fears were confirmed when Tyler started regularly vetoing their bills. Before long he was kicked out of the Whig Party, and his closest friend in Congress, Henry Wise, was punched on the House floor by a Whig named Edward Stanly. “He lies like a dog,” Stanly said of Tyler.

  In July of 1842 these disagreements boiled over when Virginia representative John Minor Botts filed the first petition for impeachment in the history of the United States “on the grounds of [President Tyler’s] ignorance of the interest and true policy of this Government.”

  “If the power of impeachment is not exercised by the House in less than six months,” Botts threatened, “ten thousand bayonets will gleam on Pennsylvania Avenue.”

  But even many Whigs in Congress knew they couldn’t impeach a president for purely political reasons. And ultimately, Tyler’s opponents in Congress decided they had no choice but to wait until the next election—so they never even brought impeachment up for a floor vote. As Senator Henry Clay put it, “Let him serve out his time and go back to Virginia from whence the Whigs have bitter cause to lament that they ever sent him forth.”

  Our Constitution, Clay recognized, calls on members of Congress to vote to impeach the president only when the interests of their country, not their party, demand they do so, which is why, despite Botts’s bluster, ten thousand bayonets didn’t end up on Pennsylvania Avenue after all.

  What High Crimes and Misdemeanors Are

  Like most of American history, most of this chapter has been defined by what high crimes and misdemeanors aren’t. They aren’t any and all crimes, as President Johnson’s case proves. They aren’t only crimes as defined by our criminal codes, as Aaron Burr’s unprosecuted murder proves. And they aren’t cases grounded predominantly in political differences, as President Clinton’s and President Tyler’s cases prove.

  Earlier in this chapter I broadly defined “high crimes and misdemeanors” as offenses committed against “the people,” but I haven’t explained what exactly that means or provided many specific examples. This is in part because so few elected officials have been impeached in our history, so while there’s some precedent for what doesn’t qualify as an impeachable offense, there’s far less precedent for what does. But it’s also because our Constitution does not provide a specific definition of the term “high crimes and misdemeanors.” Our founders simply assumed we’d know what they meant.

  As Rufus King, a delegate at the Constitutional Convention, was quoted as saying at the time: “It was the intention and honest desire of the Convention to use those expressions that were most easy to be understood and least equivocal in their meaning.”

  Needless to say, King failed at his job.

  Since the convention, scholars, lawyers, and legislators have debated the meaning of the phrase “high crimes and misdemeanors.” And we still do not have a specific definition written into our laws. But from notes taken during the Constitutional Convention and from the Federalist Papers, we do know what kind of president Congress was meant to remove—one who wielded the powers of the office for their personal benefit instead of for the benefit of the people.

  This is why, as I indicated in the introduction, the best understanding of “high crimes and misdemeanors” is captured by Alexander Hamilton’s description of an impeachable offense in Federalist No. 65 as being an “abuse or violation of some public trust,” relating “chiefly to injuries done immediately to the society itself.” And we have one example from American history of a commander in chief who resigned for committing exactly that kind of offense.

  The Impeachment of Richard Nixon

  The midnight to 7 a.m. shift at the Watergate Office Building belonged to a security guard named Frank Wills, who was paid $80 a week for his services. Most nights he didn’t have much to do. He’d walk around the building a few times, make sure no one had entered, and leave the next morning.

  But late in the night on June 17, 1972, Frank saw something he hadn’t seen before: tape holding doors open around the building. At first Frank assumed that the tape had been put up by the maintenance staff, so he removed it from the doors and went across the street to Howard Johnson’s Motor Lodge to pick up food.

  But when he returned, and found the doors had once again been taped open, he knew that what he’d seen wasn’t normal. As he wrote in the security logs: “1:47 AM Found tape on doors; call police to make . . . another inspection.”

  This marked the beginning of Watergate, a scandal that would end the Nixon presidency, change the course of American history, and become the etymological precursor for a plethora of controversies both real and fake to follow, from Deflategate to Pizzagate.

  But for more than two years after Frank Wills discovered tape on the doors of the Watergate building, President Nixon didn’t step down from office. And for a long time, the country didn’t even know that the Committee to Reelect the President—mockingly referred to as CREEP—had anything to do with the break-in.

  But then, to use a cliché, the dam started to break.

  On August 1, the Washington Post found a $25,000 check written by Nixon’s campaign to one of the burglars, an early story in what would become one of the most legendary streaks of investigative journalism in American history, as reporters Bob Woodward and Carl Bernstein added revelation after revelation—about the burglars, the money they were paid, and the efforts of the White House to cover up the involvement of campaign officials.

  In April of the next year, two of Nixon’s closest aides, John Ehrlichman and H. R. Haldeman, stepped down. Soon, even Nixon had to acknowledge his campaign’s involvement in the break-in, conceding in a prime-time address to the nation that he took “responsibility” for the “abuses that occurred.”

  Yet, in November 1973, 17 months after the break-in, Nixon still insisted that he was “not a crook.” And Congress had difficulty proving him wrong, because Nixon did everything he could to minimize his cooperation with its impeachment inquiry. This included stonewalling Congress and asserting executive privilege to avoid turning over tapes that implicated him and his staff in criminal activity.

  This didn’t go well for him. In a unanimous ruling, signed by three justices appointed by none other than Nixon himself, the Supreme Court ordered Nixon to release the tapes. Executive privilege, they declared, “cannot prevail over the fundamental demands of due process of law.” No one, not even the president, they explained, was above the law.

  In response to the Court’s ruling, members of Congress from Nixon’s party visited him at the White House and demanded that he step down. Recognizing that he had no chance of escaping impeachment, and “abhorrent to every instinct in [his] body,” he resigned in a matter of days.

  Why was Nixon’s fate so different from Johnson’s and Clinton’s? The answer isn’t just that Nixon committed violations of federal law; in most readings of the law, so too did Johnson and Clinton. And it isn’t just that he obstructed justice, a crime Clinton was almost certainly guilty of as well.

  The reason Nixon was going to be impeached, if he had not resigned, was that the crime he was covering up—a burglary of his political opponent’s headquarters—was an “abuse of public trust,” in that it undermined our democracy itself. It was, in other words, a high crime, a crime against the people, one Democrats and Republicans would both see as fundamentally wrong and at odds with American democracy, as long as they applied the Yardstick Rule. And it was exactly that kind of offense—a public servant putting their interests above the nation’s—that our founders wanted to prevent a president from ever committing.

  After all, the framers viewed the president as a fiduciary, the government of the United States as a sacred trust, and the people of the United States as its beneficiaries. The central manner in which they feared a president would break his oath of office was if he engaged in self-dealing—if he profited personally from his position at the expense of the people he served.

  President Nixon violated tha
t oath as soon as he deployed his powers as president to cover up evidence of a crime committed to benefit himself, which is why I’m confident our founders would have believed he should have been impeached. But as much as they disdained ordinary electoral interference of the type Nixon covered up, there was one thing they feared even more: a president who pursued electoral interference from a foreign power.

  Why Our Founders, and Past Presidents, Were So Afraid of Foreign Interference

  As President Trump’s phone call with President Zelensky started to raise questions, the New York Times’s Peter Baker called up 10 former White House chiefs of staff, who had worked under Obama, Bush Jr., Clinton, Bush Sr., and Reagan. He asked them whether they’d ever work with a foreign power to win an election. Every single one of the chiefs of staff provided Baker with a definitive no.

  James A. Baker III, George H. W. Bush’s chief of staff, recalled a day in October 1992 when President Bush was approached by four Republican members of Congress who had an idea for how he could win reelection. “They told him the only way to win was to hammer his challenger Bill Clinton’s patriotism for protesting the Vietnam War while in London and visiting Moscow as a young man,” Baker writes. Bush didn’t reject the idea out of hand; in fact, he thought it might work. But when Baker heard that the only way to reveal this information would be to “contact the Russians or the British,” he realized that the administration “absolutely could not do that.”

  Why would someone as canny and strategic as Baker be so opposed to the idea of asking a foreign power to help his boss win an election? Because opposition to foreign interference in our elections is as old as America itself.

  At the beginning of this book, I mentioned Washington’s belief that “foreign influence is one of the most baneful foes of republican government,” Adams’s fear that “the danger of foreign influence” would “recur” as “often as elections happen,” and Madison’s belief that we needed impeachment in our Constitution to ensure that no president would “betray his trust to foreign powers.” These comments represent only a glimpse into the founders’ fear of other nations invading our democracy. Federalist No. 68, written by Alexander Hamilton, warned that the “most deadly adversaries of republican government” would come “chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”

  “How could they better gratify this,” he added, “than by raising a creature of their own to the chief magistracy of the Union?”

  This apprehension of foreign actors—shared by Hamilton, Washington, and Madison alike—affected our Constitution in multifarious ways. It led to the natural-born citizen clause, which states that “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” It led to the emoluments clause, which states that “no Person holding any Office of Profit or Trust under them . . . shall . . . accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” And, of course, it led to the Constitution granting Congress the power to impeach a president. The latter two of these constitutional provisions were linked together. As Edmund Randolph told the Virginia Ratifying Convention, a president “may be impeached” for “receiving emoluments from foreign powers.”

  Within years of the Constitution’s ratification, the founders’ worst fears were confirmed: foreign officials had begun to interfere in our democracy. As historian Jordan Taylor writes: “Throughout the 1790s, France’s ambassadors repeatedly sought to influence the results of American elections, hoping to sway policy in their favor.” When Edmond-Charles Genêt, France’s ambassador to the United States, failed to influence President George Washington’s foreign policy, Genêt threatened to launch a persuasion campaign on voters themselves. Washington, wary as ever of foreign influence, asked France to fire him—a request the French government fulfilled.

  However, Genêt’s successors, Jean Antoine Joseph Fauchet and Pierre-Auguste Adet, were no better. Indeed, both of them tried to sway the US elections in one way or another. But President Washington refused to let them hold any influence over our democracy—and neither did the American people. To quote Taylor:

  “One newspaper writer exhorted Americans to ‘be on your guard, this is the crisis, when foreign powers will make their great effort to secure a lasting influence over your affairs and Direct Your Government.’ Another essayist, signing his name ‘National Pride,’ remarked, ‘If the choice of a President of the United States is to depend on any Act of a foreign nation, farewell to your liberties and independence.’”

  “These Americans understood,” concludes Taylor, “that allowing a foreign adversary to determine the outcome of elections would mean the death of their experiment in democracy.”

  These are the stakes of President Trump’s impeachment. Like President Nixon, he abused the public trust by wielding the powers of the presidency to serve himself instead of the public. But unlike President Nixon, he didn’t do it solely with the assistance of fellow Americans; he did it by seeking help from a foreign power.

  That makes President Trump’s high crimes even worse. And if we fail to hold him accountable, as our founders feared, I believe that could very well mark the end of the American experiment.

  2

  The Evidence

  After much study and reflection, I have come to the view that President Trump should be removed from office. That’s no state secret. The title of this book kinda gives it away.

  But I promise: This chapter is not informed by my opinions on President Trump’s conduct. I will save those for later. My only goal here is to set out the facts, so you can decide for yourself whether or not President Trump should remain in the Oval Office.

  Of course, new facts may very well have come to light since this book went to press, but the evidence described here, alone, is more than enough to impeach President Trump—and it can only get worse.

  Here’s what happened.

  “If Foreign Powers Offer You Information on Your Opponents, Would You Accept It?”

  Early in the summer of 2019, George Stephanopoulos of ABC asked President Trump a simple question: if foreign powers offer you information on your opponents, would you accept it? The president answered without missing a beat. “I think you might want to listen, there isn’t anything wrong with listening,” he said. “If somebody called from a country . . . [saying] ‘we have information on your opponent,’ I think I’d want to hear it.”

  When President Trump’s comments aired, as The New Yorker’s John Cassidy noted at the time, even his allies had a hard time justifying them. “I’m not here to defend Trump’s interview with Stephanopoulos,” Fox News’s Tucker Carlson said, before qualifying his statement: “Why would you give an interview to Stephanopoulos in the first place?” Sean Hannity resorted to bestowing upon Stephanopoulos a Trumpian nickname: “Little Georgie.” Representative Tom Cole, a Republican from Oklahoma, went so far as to say that accepting assistance from a foreign power is “not an appropriate way to behave in a political campaign.” Even Republican senator Lindsey Graham, a loyal Trump ally, said that “it should be practice for all public officials who are contacted by a foreign government with an offer of assistance . . . to inform the FBI and reject the offer.”

  A Trump Administration official, Ellen Weintraub, who runs the Federal Election Commission, actually condemned President Trump’s statements in public. “Let me make something 100 percent clear to the American public or anyone running for public office,” she said. “It is illegal to solicit, accept, or receive anything of value from a foreign national in connection with a US election.”

  As Cassidy wrote: “Even the late-night comics, who have been feeding on Trump’s gaffes for years, were stunned.” “The guy who has spent two years scream-tweeting ‘no collusion!’ is now saying, ‘If anyone’s down to collude, I’m your guy,’” Seth Meyers joked. “If Trump had been president duri
ng Watergate, he would have left a business card at the break-in,” Stephen Colbert added.

  Even President Trump, who is not known to express regret, walked back his comments. “Of course you give it to the FBI or report it to the attorney general or somebody like that,” he conceded on Fox and Friends. “You couldn’t have that happen with our country—and everybody understands that, and I thought it was made clear.”

  As it turned out, President Trump was being honest the first time. Because a scant 43 days after his interview with Stephanopoulos, he didn’t merely accept foreign interference. He asked for it.

  In Chapter 3, I elaborate on why this request of President Trump’s was an impeachable offense, but for now, I want to present you with the timeline of what took place. The facts alone, from 2014, when Russia annexed Crimea, to 2019, when President Trump asked for Ukraine to interfere in our elections (and then covered it up), demonstrate how our commander in chief took advantage of the powers of his office to improve his chances of winning the 2020 presidential election.

  The Decision to Withhold Security Assistance from Ukraine (and the Plan for the Phone Call)

  In 2014, Russia annexed a peninsula called Crimea from Ukraine—and Ukraine has been forced to contend with Russian aggression ever since. So as part of the 2016 National Defense Authorization Act, the United States started the Ukraine Security Assistance Initiative, ensuring Ukraine’s military would have the training and equipment they need to fend off future attacks from Russia.

  In June of 2019, as had become a yearly ritual, Congress announced it would be including security assistance for Ukraine in the 2020 National Defense Authorization Act. As Republican senator Rob Portman, who cofounded the Senate Ukraine Caucus, said upon approval of the funding, “This security assistance package is good news, and it sends a clear message that America stands with the Ukrainian people in their struggle to secure a democratic, prosperous, and independent future in the face of Russian aggression.”