Impeach

by Neal Katyal

  If this fear of blackmail sounds familiar to you, that’s because it isn’t the first time this has happened under the Trump Administration. As you may recall, President Trump’s first national security adviser, Michael Flynn, was successfully prosecuted for lying to the FBI. The reason this particular lie was so dangerous was that Russia knew it wasn’t true, which meant they had substantial leverage over him. As Sally Yates, then the acting attorney general, put it, “This was a problem because not only do we believe that the Russians knew [he was lying], but that they likely had proof of this information—and that created a compromise situation, where the national security adviser essentially could be blackmailed by the Russians.”

  That is why it’s such a damaging abuse of public trust for a government official at any level to involve a foreign power in a scheme they would like to be kept secret from the American people—because in doing so, they can be manipulated into serving the interests of that foreign power instead of the interests of the American people.

  This time it wasn’t the national security adviser who was at risk of being blackmailed but the president of the United States himself. The fact that President Trump was willing to put himself in that kind of compromised position—for the purpose of eliminating Vice President Biden from the presidential race—demonstrates that he is unfit to be president of the United States. After all, this is the primary evil our founders (and then-Representative Pence) warned against: a president who would use his power to benefit himself instead of the people he represents.

  With President Trump, we’ve learned, it’s not “ask what you can do for your country,” it’s “ask what a foreign country can do for you.”

  What We Should (and Shouldn’t) Care About with Respect to Russian Interference

  As far as impeachment goes, I do not care whether or not President Trump “colluded” with Russia in 2016. Special Counsel Mueller said he did not have enough evidence to prove it, and I am inclined to believe him.

  But here is what’s undoubtedly true: President Trump and his campaign tried, over and over again, to collude with Russia. This may not in itself be an impeachable offense, since Trump wasn’t president at the time and thus couldn’t abuse his power, per se. It is nonetheless important context for what took place with Ukraine, because it’s more proof that he is open to help from foreign powers.

  As I alluded to in the introduction, at a news conference on July 27, 2016, Trump addressed Russia directly: “Russia, if you’re listening,” he said, “I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

  That same day, Russia began spearfishing attacks on 76 Hillary Clinton staffers. And before long John Podesta, the chairman of Clinton’s campaign, clicked on the wrong link, providing Russia with access to thousands of his emails—which would later be posted by WikiLeaks just a few hours after a video came out in which President Trump said he likes to “grab [women] by the pussy.”

  The timing of Russia’s attack and the release of WikiLeaks’ emails may well have been a remarkable coincidence, but Trump’s willingness to ask for foreign assistance was unambiguous. And over the course of the 2016 campaign, members of Trump’s staff repeatedly followed suit, trying desperately to coordinate with Russia. In all, Mueller’s report delineated at least 140 points of contact between Russians, WikiLeaks, and President Trump’s associates. These included a meeting at Trump Tower between President Trump’s son Don Jr., his son-in-law, Jared Kushner, his campaign manager, Paul Manafort, and a Russian lawyer named Natalia Veselnitskaya, who had ties to the Russian government.

  Regardless of what information was communicated at the Trump Tower meeting, Trump’s campaign had been told in advance that the discussion would focus on “very high level and sensitive information” meant to “incriminate Hillary.” And, they were told, the meeting was only one element of “Russia and its government’s support for Mr. Trump.”

  What, then, did Donald Trump, Jr., do when he was told that the Russian government would provide the campaign with dirt on Clinton? Did he do what any right-thinking person would do and write, “Um, thank you, can I get back to you?” and then pick up the phone to call the FBI? No. Instead, he wrote, “If it’s what you say I love it especially later in the summer.”

  This meeting is the exact hypothetical Stephanopoulos asked Trump about: if a foreign power came to you with information on your political opponent, would you take it? The answer of Trump’s 2016 campaign, it turns out, was the same one he gave to Stephanopoulos: “Yes.” That’s damning whether or not the campaign ended up succeeding in its efforts to collude with Russia. Because it showed President Trump wasn’t only willing to cheat to win an election; he was willing to ask a foreign power to help him do it.

  What’s worse: as president, Trump has declined to hold Russia accountable for what Special Counsel Mueller described as “multiple, systematic efforts to interfere in our election.” Russia’s interference in 2016, the Mueller report revealed, wasn’t limited to hacking John Podesta’s email account. The Russians also launched disinformation campaigns on social media, sowed divisions in American political discourse, and went as far as to pay Trump supporters to wear costumes of Hillary Clinton in a prison uniform at rallies. They even penetrated the electronic voting systems of many states. This was a coordinated attack on our democracy, which President Trump has refused to do anything about.

  In fact, according to the Washington Post, at a 2017 meeting in the Oval Office with Russian foreign minister Sergei Lavrov and Russian ambassador Sergey Kislyak, Trump communicated that he was “unconcerned” about Russia’s interference in 2016. A former senior official in Trump’s administration, quoted in the story, said Trump “was always defensive of Russia.” He added, “He thought the whole interference thing was ridiculous.”

  Trump’s failure to even acknowledge intelligence community reports proving Russia’s interference—and his unwillingness to hold Russia accountable—were early signs that he didn’t view foreign interference in our elections as an urgent threat. Indeed, we would later learn, he viewed it as an opportunity. That’s the explanation for his answer to George Stephanopoulos, saying he would listen to “opposition research” from a foreign power. It’s the explanation for the requests he made to President Zelensky over the phone. And it’s the explanation for why President Trump asked China to investigate Vice President Biden, even after the House had already begun its impeachment inquiry into his dealings with Ukraine.

  Fundamentally, President Trump doesn’t have a problem with foreign interference in our elections—indeed, he encourages it—and he simply doesn’t believe he will be held accountable for doing so. This is not only a high crime. It’s the very one our founders feared most. And if we allow an incumbent president to get away with using the mighty constitutional powers of his office to pressure a foreign power into helping him win, our democracy might never recover.

  High Crime #2: Bribery

  But, of course, even though High Crime #1 is sufficient reason for impeachment, President Trump did, in fact, also offer quid pro quo exchanges to Ukraine. That’s a form of bribery, one of the two impeachable acts that our Constitution specifically delineates as a “high crime and misdemeanor” in Article II, Section 4.

  Now, the Constitution doesn’t provide a definition of “bribery,” nor, as Laurence Tribe and Joshua Matz note, “did federal law do so until 1853.” So when evaluating President Trump’s conduct, instead of asking exactly what the founders meant by “bribery,” as Tribe and Matz argue, we are better off thinking about why “the Constitution singled out this offense.”

  As Gouverneur Morris, one of the early opponents of impeachment at the Constitutional Convention who later came around to being a supporter, explained, if bribery weren’t an impeachable offense, a president “may be bribed by a greater interest to betray his trust.” He feared, in other words, that without protections against bribery, the president coul
d be persuaded to put his own interests above those of the people he serves.

  Morris continued, in terms that are striking today, “No one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay.”

  For this reason, Tribe and Matz argue, our founders “built a multilayer defense system” against bribery, encompassing Article I’s ban on emoluments (things of value given by foreign governments or states to the president) and the specific prohibition in the impeachment clause against bribery. “By writing bribery into the Impeachment Clause, they ensured that the nation could expel a leader who would sell out its interests to advance his own,” Tribe and Matz write. This isn’t only true when the president is the recipient of bribes, they continue. “It’s also true when the president offers bribes to other officials.”

  “In either case,” they conclude, “the president is fully complicit in a grave degradation of power, and he can never again be trusted to act as a faithful public servant.”

  But without a clear definition of “bribery” in our Constitution—and given that “bribery” wasn’t even in the criminal code when our founders wrote the Constitution—how did they expect Congress to define it?

  Well, our founders were common-law lawyers, focused not on legal technicalities but on the commonsense definition of bribery used by courts day in and day out. And that definition was pretty simple. As far as the founders were concerned, bribery occurred when a public official used his public powers for a personal benefit. In this sense, bribery is a clear violation of the Pence Standard.

  William Hawkins’s “A Treatise of the Pleas of the Crown” defined bribery this way in 1716: “Bribery in a large sense is sometimes taken for the receiving or offering of any undue reward, by or to any person whatsoever, whose ordinary profession or business relates to the administration of publick justice.”

  Notably, federal criminal law has moved in that direction, too (though remember my earlier caution that violating a specific statute is not at all necessary for impeachment). In the weeks after news broke about the president’s call with the leader of Ukraine, many commentators focused on Section 201(b)(1), a provision in the federal bribery statute that says it is a crime to give or offer to a “public official” anything of value in exchange for performing an official act. Indeed, the mayor of Detroit, Kwame Fitzpatrick, was jailed for doing exactly this: demanding that his friend be cut in on various government contracts. But the term “public official” in Section 201(b)(1) is defined explicitly as a US official, not a foreign one, which means it’s not exactly analogous.

  So what does the law say about a US official soliciting a bribe from a foreign actor? A lot, actually. A separate provision in the law, Section 201(b)(2), says it is a crime if a public official (here, Trump) “directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for . . . an official act.” That fits Trump to a T. It is also a textbook definition of quid pro quo.

  This is why quid pro quos are a big deal: because they are a form of bribery, which is an impeachable offense under the Constitution. And despite the protestations of Trump and his allies, the call between President Trump and President Zelensky featured not only one but two explicit demands of this kind.

  The first came when President Zelensky mentioned wanting to purchase Javelins from the United States, prompting President Trump to say, “I would like you to do us a favor though.”

  This is about as blatant a quid pro quo offer as you will find. That’s why House leader Kevin McCarthy, one of Trump’s staunchest defenders, denied that President Trump had ever said this during an interview with 60 Minutes. “You just added another word,” Leader McCarthy said, upon hearing the quote from CBS’s Scott Pelley. “No, it’s in the transcript,” Pelley responded.

  “He said—‘I’d like you to do a favor though’?” McCarthy asked, incredulous. “Yes,” Pelley responded once more, “it’s in the White House transcript.”

  Ross Spano, another Trump ally, made a similarly dubious argument to McCarthy in a speech on the floor of the House. “There is no quid pro quo,” he said. “No this for that.”

  I’ve been a lawyer for a quarter century, so I can tell you: nobody literally says “this for that,” but “I would like you to do us a favor though,” is about as close as it gets. Even drug dealers know to take better care with their texts.

  The second quid pro quo between President Trump and President Zelensky was the exchange of an investigation into President Biden for a visit to the White House. As discussed in Chapter 2, according to Ambassador Taylor, President Trump made clear before the call that he wouldn’t agree to a meeting with President Zelensky until the Ukrainian said he would help with these investigations. And in a text exchange with a Ukrainian aide, Ambassador Volker made these terms explicit. “Heard from the White House,” he wrote. “Assuming President Z convinces Trump he will investigate . . . we will nail down date for his visit to Washington.” Quid, meet quo.

  On the call itself, in direct response to Zelensky’s pledging to “work on the investigation,” Trump said, “Whenever you would like to come to the White House, feel free to call.” That is, once again, about as cut-and-dried a quid pro quo as you will find. So over the course of a 30-minute phone call, Trump partook in two explicit quid pro quo exchanges, as defined by bribery law.

  But as I’ve said, Congress doesn’t even need to look at criminal codes to make the case that President Trump engaged in bribery, since even subtle offers of a quid pro quo from a president are grounds for impeachment. Why? Because whenever the president asks for a favor from a foreign country—with the power of the US treasury and the US military at his disposal—a quid pro quo is always implicit. After all, other countries know that a failure to do what the president of the United States asks could result in any number of negative repercussions, while a willingness to accede to his demands could result in any number of benefits. Even if it’s not explicitly stated, that’s all of the quid a foreign country needs to justify giving up a quo.

  Now, I should note that this kind of implicit quid pro quo request is 100 percent acceptable when the president is asking for a favor on behalf of the people. If, for instance, President Trump asked England to share intelligence on a terrorist organization with the CIA in exchange for the US sharing intelligence about future threats to England, that would of course be aboveboard, as he would be eliciting intelligence to protect the American people.

  The problem arises when the president asks a foreign power for a personal favor—one that doesn’t align with the interests of those he represents. Because, as I mentioned in my discussion of High Crime #1, when a president abdicates his duty in front of another country, he leaves himself, and our nation, vulnerable to blackmail.

  That’s the abuse of trust. It’s why our founders believed we needed to remove any president from office who would, in Madison’s words, “betray his trust to foreign powers.” And it’s why they would be especially concerned by a president who has solicited bribes asking foreign officials to interfere in our elections over and over again—and shows no signs of stopping anytime soon.

  High Crime #3: Obstruction of Justice

  Compared to the severity of the core offenses President Trump has committed, Obstruction of Justice may seem like a petty crime. This is especially true because President Trump appears to be, well, pretty bad at obstructing justice. Not only have we learned about the high crimes he’s committed in private, but we’ve also witnessed him asking foreign powers to help him win reelection in public.

  And yet—as he has stonewalled Congress, refused to cooperate in the impeachment inquiry against him, and intimidated witnesses—President Trump has done more to obstruct the investigations into his conduct than any president since Richard Nixon, who ultimately resigned from office not because he broke into the Watergate building himself but because he obstructe
d the investigation into who did.

  President Nixon’s Obstruction of Justice

  In his conduct 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 violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice.

  So begins Article I in the impeachment of President Nixon, which details how Nixon wielded the powers of his office to obfuscate the truth about what happened at the Watergate building on the night of June 17, 1972. The charges leveled against President Nixon ranged from “withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States” to “interfering or endeavoring to interfere with the conduct of investigations by the Department of Justice of the United States.” In all, Article I listed nine counts of obstruction—and based on these counts, as well as Article II, which focused on abuses of power, and Article III, which focused on disobeying subpoenas, the House Judiciary Committee voted to impeach him.

  The charges themselves are dense—written in legalistic language—but they tell a story not dissimilar to the one we’re living through today, in which a president’s actions are driven not by a desire to serve the public but by a desire to hide the truth.