Impeach

by Neal Katyal

  These two beliefs together would leave Congress with no way to compel the president to participate in their inquiry—in effect, rendering him above the law. That, it seems, is exactly the intention of President Trump’s lawyers at the Justice Department. Indeed, they recently went so far as to tell US District Court chief judge Beryl Howell that they believed the Supreme Court ruling compelling Nixon to release his tapes may have been decided differently today.

  Judge Howell’s response to the Trump Administration? “Wow. Okay.”

  Our Constitution leaves us with two remedies for a president like this. The first is our courts. Whenever a president refuses to comply with a formal subpoena from Congress, the House can challenge his claims of executive privilege before a federal court in Washington, DC. If either party is unsatisfied with this ruling, they can challenge it at the Court of Appeals in Washington—and, if they are still unsatisfied, ultimately at the Supreme Court. That is exactly what happened in Watergate.

  Many believe this time will be different, because the majority of justices on today’s Supreme Court were appointed by Republican presidents. But the experience of President Nixon, who lost his case unanimously despite having nominated three of the justices who heard it, is instructive. The Supreme Court is composed of life-tenured justices precisely for moments such as this. And no one, particularly this president, should assume that politics will protect him in the highest court in the land.

  The second remedy for a president like this is impeachment, regardless of whether the Supreme Court compels him to release additional evidence. Even without a single new piece of information, we already know with 100 percent certainty the answer to the question of whether or not he obstructed justice: yes. (And no matter what happens next, the answer to that question will be the same.)

  We also know that this isn’t the first time President Trump obstructed justice.

  While none of Special Counsel Mueller’s findings need to be (or even, for that matter, should be) included in the articles of impeachment against President Trump, they do provide us with more evidence that President Trump is likely to obstruct justice again. After all, he obstructed Mueller’s investigation not once, not twice, but at least ten times.

  He asked FBI director James Comey to “see [his] way clear to letting [the investigation into Michael] Flynn go.” When Comey refused, he fired him—later telling Russian officials he had faced “great pressure because of Russia,” which had been “taken off” by Comey’s removal. He asked his lawyer, Don McGahn, to fire Special Counsel Mueller as well—a request McGahn refused to carry out, according to Mueller, “deciding he would rather resign than trigger what he regarded as a potential Saturday Night Massacre.” He edited a statement from his son Donald Trump, Jr., about the Trump Tower meeting and then lied about it. He intimidated witnesses, calling on Michael Cohen to “stay strong” and saying he believed “flipping . . . almost ought to be outlawed.” He tried to convince his attorney general, Jeff Sessions, to “unrecuse” himself from the case, telling aides he wanted Sessions to “protect” him. And on and on and on.

  President Trump may not have colluded with Russia, but he did all he could to impede and bring an end to the investigation into whether or not he did. And he got away with it only because he played his DOJ “get-out-of-jail-free card,” with Mueller stymied by the notion that a sitting president could not be indicted.

  Now, as I’ve explained, President Trump’s conduct with Ukraine would be impeachable even if he had cooperated fully with the Mueller investigation—indeed, even if Russia had never interfered in the 2016 presidential election. But what Mueller’s report shows is that President Trump believes he can obstruct justice with impunity.

  And with Ukraine, by “locking down” the whistleblower report; by saying that the whistleblower should be treated like a “spy”; by refusing to comply with subpoenas from Congress; by claiming Adam Schiff, his principal investigator, should be “arrested for treason”; by calling the impeachment probe a “coup”; and by trying to block witnesses, like Sondland, from testifying, Trump is using the same playbook to obstruct justice once again.

  The only question is whether, this time, we’ll do anything about it.

  The Bottom Line

  Here’s the bottom line: President Trump asked President Zelensky of Ukraine to investigate Vice President Biden. He solicited bribes. He covered up what he did. And he has refused to participate in the impeachment inquiry against him, depriving Congress of its constitutionally guaranteed authority—and indeed responsibility—to investigate the executive branch.

  In committing these acts, he clearly is guilty of three high crimes:

  Abusing the public trust by soliciting foreign interference in the 2020 presidential election;

  Abusing the public trust by engaging in bribery—repeatedly—through his quid pro quo exchanges with President Zelensky of Ukraine;

  Abusing the public trust by obstructing justice in the investigations of his conduct, adopting an unconstitutional view of executive power.

  We have all the evidence we need to prove the underlying high crime of soliciting foreign interference. The evidence on bribery, too, is open-and-shut—so much so that the president’s acting chief of staff at one point confessed to it. And we have all the evidence we need to prove the cover-up. What’s more, President Trump has clearly stated that he will not stop asking foreign powers to help him win elections—unless we remove him.

  Which is why we must.

  As John Dean, President Nixon’s counsel, said during Watergate, “There is a cancer on the presidency, and cancers, if not removed, only grow.” Congress must use the authority granted to it by our Constitution to remove that cancer now, before it’s too late.

  4

  Questions and Answers

  The facts are clear. President Trump wielded the powers of the presidency for the benefit of himself instead of for the benefit of the American people. He solicited foreign interference in our elections—and, in the process, jeopardized our national security by leaving himself vulnerable to blackmail. He proposed not one but at least two quid pro quo exchanges to President Zelensky. He has obstructed justice into the investigations of his conduct, adopting an unconstitutional view of executive power. And he has promised to do it all again.

  No matter what new developments take place—as many surely will, even between the writing of this book and its arrival in your hands—these facts will not change. But you may still have questions about the process. Like: What does the Constitution say about impeachment? (Surprisingly, not very much.) If the House votes to impeach, does the Senate have to hold hearings? (Probably.) Can Congress send President Trump to prison? (No, but if he’s removed, courts can.)

  The first half of this chapter is devoted to answering these kinds of logistical questions about impeachment.

  The second half of the chapter, meanwhile, focuses on answering questions specifically related to the Ukraine case and responding to the most common arguments you might hear from President Trump’s defenders. Like: Didn’t Hunter Biden commit crimes? (No, but that doesn’t make what he did right.) Isn’t the case against President Trump based in hearsay? (No.) And why can’t we wait until the 2020 election? (Because Trump has promised to cheat to win it.)

  Most of these questions have been covered in the preceding chapters, so if you see one you already know the answer to, feel free to skip ahead. But I want you to have an analysis of the flaws in President Trump’s most common defenses all in one place, so if you’re in the middle of an argument about impeachment with your uncle, you’ll know where to look.

  Of course, none of the answers to these questions are essential to understanding the case for impeachment, so if you want to skip this chapter entirely, Godspeed. But if you have any loose ends you want tied up, or any questions you want answered, this chapter is for you. And if there’s anything I haven’t covered, you can ask me on Twitter via @neal_katyal.

  Process Question
s

  Process Question #1: What does the Constitution say about impeachment?

  Article I, Section 2, Clause 5: “The House of Representatives . . . shall have the sole Power of Impeachment.”

  This means only the House can begin impeachment proceedings against a president before a trial can occur in the Senate. It does not, however, mean the House can remove a president on its own. That requires the Senate. Impeachment, as defined in Clause 5, is merely the formal accusation.

  Think of the House’s role as charging a defendant (like a grand jury) and the Senate’s role as serving as the jury. Even if the members of the House think a crime has been committed, they cannot convict, since that’s the role of the Senate. And even if the senators are convinced that a high crime took place, they cannot initiate removal proceedings unless the House first brings them the accusation in the form of a referral of what are called “articles of impeachment.”

  Article I, Section 3, Clauses 6 and 7: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of members present. The judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

  These clauses can be distilled to a few key points:

  As mentioned above, the Senate ultimately determines whether or not a president should be convicted. Only if two-thirds of the senators agree with the verdict can the commander in chief be removed from office.

  The Senate can’t sentence the president to anything other than “removal from Office” and disqualification from future officeholding. Most importantly, it can’t send him to prison.

  Impeachment proceedings in the Senate are presided over by the chief justice of the United States. (More on what this means later.)

  Article II, Section 4: “The President, Vice President, and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

  There are two takeaways from this section: you can be impeached only for a high crime or misdemeanor (defined in Chapter 1 and below), and you can be impeached only if you’re a president, vice president, or civil officer. Historically, the term “civil officer” has mostly stood in for judges, who make up 15 of the 19 cases of impeachment in US history. Other presidential appointees, like cabinet members, are also subject to impeachment. Representatives and senators, on the other hand, do not qualify as “civil Officers of the United States.”

  Article II, Section 2: The president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

  This clause ensures the president cannot pardon himself or one of his appointees if they are impeached by Congress.

  Process Question #2: How does impeachment actually work?

  The Constitution provides sparse guidance on how to impeach a president; instead, many of the protocols have been determined by Congress over the last two centuries. And some are still being figured out.

  But we do have a sense of how impeachment works. After all, the procedures the Senate used for the impeachment of President Clinton were by and large the same ones they adopted for the impeachment of President Johnson more than a century earlier. And in all likelihood, President Trump’s impeachment would be conducted in a similar fashion.

  Impeachment, as the Constitution demands, begins in the House of Representatives, where members of Congress decide whether they believe the president should be charged with a high crime or misdemeanor. This is generally determined in committees, but which committees it’s determined by is less clear.

  The House Judiciary Committee can run the investigation, as it did during Nixon’s impeachment, or the House can establish a new committee solely for the purpose of impeachment. The House can also move straight into drafting articles of impeachment if the representatives don’t think an investigation is necessary.

  Once articles of impeachment are drafted, they tend to be voted on by the investigatory committee before they are put to the entire House. (They can be voted on individually or all at once.) If the majority of the House votes to impeach for any of the articles, the case is sent to the Senate for trial.

  When articles arrive in the Senate, per Article I, Section 3, Clause 6 of the Constitution, senators take a special oath to “do impartial justice according to the Constitution and the laws.” With the chief justice of the United States presiding, senators hear arguments from both sides. The case for impeachment is made by “managers” who are appointed by the House of Representatives. The case against impeachment is made by the president’s lawyers. The chief justice is in charge of deciding what is and isn’t admissible evidence, but if a majority of senators disagree with his ruling, he can be overruled.

  After all the evidence has been presented, the Senate votes on each article of impeachment individually. As law professor Charles Black wrote, every senator is “registering his best judgment ‘on the facts’ and ‘on the law.’ That means that he is answering two questions together: ‘Did the president do what he is charged in this Article with having done?’ [And] if he did, did that action constitute an impeachable offense within the meaning of the constitutional phrase?”

  If fewer than 67 senators answer both of those questions “yes,” the president is acquitted. On the other hand, if 67 senators rule the president guilty of even one of the articles, he is convicted. The exclusive punishments for conviction, as indicated in Article I, Section 3, Clause 6, are removal from office and disqualification from future officeholding.

  Process Question #3: What rights does President Trump have during the impeachment process? Is President Trump within his rights to refuse to take the stand?

  Impeachment is not governed by the same rules as our courts, which means defendants are not guaranteed all of the same rights before Congress that they have in criminal proceedings. In fact, nowhere in the Constitution are defendants in impeachment proceedings expressly provided with rights of any kind.

  That didn’t stop President Nixon from trying to avoid participating in his impeachment inquiry. As I described in Chapters 1 and 3, he refused to comply with subpoenas and declined to cooperate with the inquiry. That in itself became the focus of Article III of his impeachment. To quote Senator Lindsey Graham, as I did in Chapter 3, “The day Richard Nixon failed to answer that subpoena is the day he was subject to impeachment because he took the power of Congress over the impeachment process away from Congress and became the judge and jury.” That’s why, despite Trump’s protestations, the president must respect subpoenas from Congress—and he certainly cannot decline to “participate” altogether, as his lawyer has suggested Trump plans to do.

  But must he appear and testify under oath? The answer to that question turns on whether Trump has a “privilege” he can cite to avoid testifying.

  A privilege is simply a legal right to keep certain information confidential, even when faced with questions in court. And there are many kinds of privileges in our justice system, from executive privilege, which I discussed in detail in Chapter 3, to spousal privilege, which protects husbands and wives from having to reveal information about each other.

  But just because there are lots of kinds of privileges does not mean that they are successfully invoked very often. In fact, the American legal system generally believes that people have rights to other folks’ evidence, so privileges are narrowly construed.

  The privilege germane to this question is the right to avoid self-incrimination. In ordinary criminal trials, presidents, like all Americans, can cite this privilege, as the
Fifth Amendment bars forcing anyone to self-incriminate. But there is no express privilege in the Constitution that protects the president from being compelled to participate in an impeachment proceeding.

  Now, one can imagine the president’s lawyers making an argument that goes like this: “I don’t have a privilege in the impeachment context, but I do in the criminal context, so if I give testimony in the impeachment context, it could be used one day in a criminal trial. That means that even in cases of impeachment, I still have Fifth Amendment protections against self-incrimination.”

  There are many problems with that argument, starting with the fact that Congress could agree to bar the president’s testimony in a future criminal proceeding if a credible argument could later be made to a judge that due process requires that exclusion. It would also, of course, be a hard argument for President Trump to make, because he’d essentially be admitting his criminal guilt. And he’d be doing something federal employees are generally not permitted to do.

  After all, unlike with civilians, we expect our federal employees to tell the truth to law enforcement, rather than hide behind their privileges—because our safety depends on their transparency. That’s true of the lowest-ranking members of our government; and it’s certainly true of our most important federal employee, the president of the United States.

  Process Question #4: What is the role of the House? Will it call witnesses, including Trump?