Impeach

by Neal Katyal

  As Senator Romney tweeted, “When the only American citizen President Trump singles out . . . is his political opponent in the midst of the Democratic nomination process, it strains credulity to suggest that it is anything other than politically motivated.” This is especially true because:

  When Trump was asked if he’d ever asked a foreign leader to launch a corruption investigation into someone who was not his political opponent, he couldn’t name a single case;

  A member of President Trump’s own administration wrote a formal letter to Congress saying Ukraine had been effectively combating corruption, with the express purpose of convincing Congress to send them aid. So it doesn’t make much sense that President Trump would then do a blatant about-face and object to doling out that aid on the basis of corruption;

  President Trump did not mention general corruption during his phone call with President Zelensky. Instead, he focused entirely on matters that would help his campaign;

  President Trump cut the State Department’s budget for fighting corruption, which wouldn’t make a whole lot of sense if that was genuinely one of his priorities. Indeed, he involved his private attorney, Rudy Giuliani, in all sorts of suspicious interactions instead of letting the State Department handle them;

  If President Trump really wanted to combat corruption in Ukraine, he would never have asked President Zelensky to go on television to announce an investigation. Serious law enforcement investigations are done in secret. What Trump wanted would have been a show investigation, designed not to find the truth but to damage Vice President Biden’s reputation. If Trump really cared about fighting corruption, why did he want the investigation publicly announced? It strains credulity to think that this was about corruption, which is presumably why President Trump trotted out a grab bag of other defenses.

  Case Question #9: Aren’t the people voting on impeachment biased?

  Yes. Everyone deciding whether or not President Trump should be impeached has a political bias—and many have expressed an opinion of his conduct on the record. This is, of course, very different from how a traditional jury is selected. As law professor Charles Black writes: “In an ordinary judicial trial, persons in such a position would of course be disqualified to act, whether as judges or jurors.” But, he notes, “it cannot have been the intention of the Framers that this rule apply in impeachments,” since they wrote the Constitution in such a way that impeachment would be decided by politicians, who are biased by dint of their very positions.

  “The remedy,” he concludes, “has to be in the conscience of each senator, who ought to realize the danger and try as far as possible to divest himself of all prejudice.” Black’s point is what I’ve called the Yardstick Rule in this book—the idea that senators must apply a consistent yardstick in determining whether a given offense is impeachable, regardless of the president’s political party.

  Thankfully, this investigation is being led by Speaker Pelosi, who has exercised special caution in this case—as she has throughout her career. When many in her party sought to impeach President Trump over the Mueller report, she declined to do so. And back when Democrats were trying to impeach President Bush in 2008 over the Iraq war, she sided against them. She even went across the country on what the New York Times described as “the Why-Haven’t-You-Impeached-the-President Tour.” Across the board, Speaker Pelosi has viewed impeachment as a last resort.

  Throughout our history, at moments of great consequence, partisans have been able to put aside their personal views for the good of the country. Just think about Senator Ross during President Johnson’s impeachment. Or think about my frequent collaborator, George Conway, a lifelong conservative, married to one of President Trump’s most important advisers, who has come forward time and again to document and describe the existential threat Trump’s actions pose to our democracy. He’s not the only public figure to break from his party. And it’s my fervent hope that there will be more.

  Case Question #10: Doesn’t every politician ask for help from foreign powers? Why is foreign interference so bad anyway? Why is accepting it a high crime?

  No, American politicians don’t simply go around asking foreign powers to help them win elections. In fact, as I mentioned in Chapter 2, when President Trump’s phone call with President Zelensky started to raise questions, the New York Times called up 10 former White House chiefs of staff, who worked under Obama, Bush Jr., Clinton, Bush Sr., and Reagan. They asked each of them whether they would have ever even considered working with a foreign power to win an election. Every single one of these chiefs of staff provided a definitive no.

  Opposition to foreign interference in our elections is as old as America itself. In the opening pages 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.”

  In Federalist No. 68, Alexander Hamilton stated his view 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?”

  The reason our founders feared foreign interference was that they knew it had the power to undermine our democracy. Instead of the government reflecting the will of the American people, they worried, it could come to represent the interests of whichever foreign power intervened in a given election. (And, they recognized, foreign interference would be particularly pernicious if it were done in secret, as the Ukraine plot was supposed to be, because the American people would never know they were living under foreign influence—like puppets unaware of their puppet master.)

  That’s why our Constitution has so many protections designed to shield us from foreign influence, from the natural-born citizen clause, which states that “no Person except a natural born Citizen . . . shall be eligible to the Office of President,” 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, fear of foreign interference is also one of the reasons our Constitution granted Congress the power to impeach a president. As one of our founders, Edmund Randolph, told the Virginia Ratifying Convention, a president “may be impeached” for “receiving emoluments from foreign powers.”

  On October 21, 2019, President Trump called this clause in our Constitution, there since 1787, “phony.”

  Case Question #11: Is there actually any hope of 67 senators really voting to impeach President Trump?

  Before Republicans decided to impeach President Nixon, they were vehemently opposed to the idea of impeaching him. Lawrence Hogan, the first Republican in Congress to announce his support for impeachment, didn’t do so until right before the House Judiciary Committee was set to vote—only two weeks before President Nixon resigned. This stuff moves fast.

  Until its final hours, the investigation into Watergate had been highly unpopular with the American public. Even after the Saturday Night Massacre, only 38 percent of Americans supported removing President Nixon from office. But as more citizens began to understand how he had abused his power, public support for impeachment began to increase—and, in turn, so did support for impeachment among Republicans in Congress.

  While public support for impeachment never topped 57 percent, Republican senator Barry Goldwater—alongside House Republican leader John Jacob Rhodes and Senate Republican leader Hugh Scott—eventually paid a visit to the White House and told President Nixon that he had no choice but to resign. They did so despite the fact that over 50 percent of Republicans approved of his pe
rformance at the time.

  This story by no means guarantees that President Trump will meet the same fate, but it is proof that sometimes Congress really does put country before party.

  There are, after all, at least some similarities between President Nixon’s impeachment and President Trump’s. Lawrence Hogan, for instance, had a son, who, naturally, he named Larry. Now the governor of Maryland, Larry Hogan, a Republican, has channeled his father’s courage and called for impeachment proceedings against Trump.

  Perhaps Congress will follow the lead of a Lawrence Hogan once again.

  One More Question

  I could have answered hundreds of additional questions about the case against President Trump—from whether tweets are admissible in court as a form of witness intimidation (yes) to why President Trump hired Rudy Giuliani in the first place (who knows?). As I mentioned at the beginning of the chapter, I am happy to answer any of these questions if you send them to @neal_katyal.

  But I kept this chapter concise because there’s no need to overcomplicate an open-and-shut case. You know what our Constitution says about impeachment. You know why President Trump’s abuses of trust qualify as high crimes. And now you know how Congress can act to remove him.

  Before I conclude this book, though, there’s one more question I still have to address—a question whose answer may well be more important to the future of our country than anything else I’ve discussed:

  What will become of our country if we impeach President Trump?

  That is the subject of the next, and final, chapter.

  5

  Out of Many, One

  Try to impeach him. Just try it. You will have a spasm of violence in this country, an insurrection, like you’ve never seen. Both sides are heavily armed, my friend. This is not 1974. The people will not stand for impeachment. A politician who votes for it would be endangering their own life.

  Roger Stone, President Trump’s longtime adviser, claims he wasn’t “advocating” violence when he said this to a reporter, he was just “predicting” it.

  On September 29, 2019, President Trump made a similar claim on his Twitter page. “If the Democrats are successful in removing the President from office,” he wrote, quoting a Fox News guest, “it will cause a Civil War like fracture in this Nation from which our Country will never heal.” This, Trump might argue, was a premonition as well. He didn’t intend to incite a “Civil War like fracture in this Nation.” He simply predicted one.

  Trump’s supporters, however, treated his words like a command. As my Georgetown colleague Mary McCord detailed in Lawfare, a national security blog run by law professors, militias around the country believed President Trump was calling them to action with his tweet. Oath Keepers, a far-right armed organization, told its 24,000 followers that Trump’s tweet brought our country to “the verge of a HOT civil war.”

  “This is the truth,” its members wrote. “We ARE on the verge of a HOT civil war. Like in 1859. That’s where we are. And the Right has ZERO trust or respect for anything the left is doing. We see THEM as illegitimate too.”

  This wasn’t necessarily an empty threat. According to its website, Oath Keepers has trained Americans “in as many states as possible” to “serve as the local militia” if they are “called upon by President Trump to serve the nation.” And, by all appearances, they own the guns to do it.

  But we don’t even need another Civil War for President Trump’s impeachment to split our country at its seams. As Jelani Cobb wrote in The New Yorker, “The dark portent is not that Trump will inspire a reenactment of the central conflicts of America’s past. It’s that he will author a novel catastrophe all his own.”

  “Only When It Is Dark Enough”

  This doesn’t have to be our fate.

  Yes, we are living through one of the darkest moments in the history of our country—and President Trump’s impeachment could very well tear our country apart. Trump’s voters could be left feeling that their voices have been shut out of our democracy. Trump’s opponents could be left wondering if they will be the subjects of violence. Our house could be divided until it can no longer stand.

  Or impeachment could bring out the best of America. As Martin Luther King, Jr., said in Memphis, Tennessee, on the eve of his assassination, “Only when it is dark enough can you see the stars.” And despite everything we face, I believe we can get there.

  Because I believe America is better than this moment. I believe our sense of weary resignation can be replaced with one of boundless resolve, and that while it’s certain to be contentious, impeachment can serve as a fresh start for our nation. And I believe we are ready to move past the division, the violence, and the toxicity in our politics—so we can get back to work building a union that’s a little more perfect tomorrow than it is today.

  But we can only realize this dream if all of us—Democrats and Republicans and Americans who couldn’t care less about politics—come together not only to protect our country from the kind of devastation Stone and Trump have envisaged taking place if President Trump is impeached, but also to strengthen our institutions so our democracy is never vulnerable to an attack like this again.

  And the key to getting there is understanding that this impeachment is not about politics.

  That’s what makes the Ukraine case different from past inquiries—like the Starr report. This is one where Democrats can honestly say, without a shadow of a doubt, that they would have impeached a president of their own party for this behavior. And Republicans know in their hearts that they would have impeached a Democrat for an abuse of power like this a long time ago as well. The Yardstick Rule, in other words, leads Democrats and Republicans alike to the same verdict: guilty.

  In the preceding pages I have explained why our laws and our history, from 1787 to the present day, have left Congress with no other choice, given what President Trump has already admitted doing and what he says he wants to do again. And I fervently believe that the House, and then the Senate, will do the right thing.

  But then what? What comes next? If we impeach President Trump, what reforms can we implement to try to prevent this from happening again?

  The reality is President Trump has ignored regulations and laws since he first descended the escalator at Trump Tower, so I cannot promise that he would have behaved any differently if the laws had been different. But I can guarantee that the following policies would have made it easier to hold him accountable for his misdeeds. And while this is far from a comprehensive list, I hope it’s a helpful start.

  Reform #1: Campaign Finance

  When officials at the Department of Justice were asked why they didn’t investigate President Trump’s phone call with President Zelensky after receiving the whistleblower’s report, they blamed campaign finance laws—which state that a contribution from a foreign power is illegal only if it’s a “thing of value.” And because they couldn’t place a direct value on the Ukrainian help, the DOJ tried to quietly close the investigation, hoping no one would find out about it.

  Let’s assume the DOJ’s decision was in fact based on campaign finance laws rather than on a self-serving directive from President Trump or Attorney General Barr. Even then, the decision would have made no sense, because under existing law, accepting or soliciting any foreign contribution to a campaign with a value of $2,000 or more is considered a misdemeanor—while accepting any foreign contribution with a value of at least $25,000 is considered a felony. And clearly, an investigation into your political rival by a foreign government is worth far more than $2,000, or $25,000, to a campaign. After all, campaigns spend millions of dollars on negative advertisements, which could never be even nearly as effective as a publicly announced investigation by a foreign power.

  What’s more, our Federal Election Commission is already on the record saying that donations don’t have to come in the form of cash for them to count as “things of value.” As its chairman, Ellen Weintraub, wrote two days after the impeachment inquiry was ope
ned: “The Commission has recognized the ‘broad scope’ of the foreign national contribution prohibition and found that even when the value of a good or service ‘may be nominal or difficult to ascertain,’ such contributions are nevertheless banned.” In other words, just because President Trump didn’t ask Ukraine to write him a check, under FEC guidelines he was still requesting that President Zelensky provide him with a “thing of value.”

  Elaborating on this point, Weintraub later said, “The law is pretty clear: it’s absolutely illegal for anyone to solicit, accept, or receive anything of value from a foreign national in connection with any election in the United States.”

  “Solicit,” of course, being the key word.

  The president’s lawyer Jay Sekulow, on the other hand, went on TV to claim that Special Counsel Mueller had found that foreign campaign help wasn’t a “thing of value.” When I heard him say that, I found it bizarre, as I didn’t recall reading that in the Mueller report. Turns out, Mueller said the opposite. “Candidate-related opposition research given to a campaign for the purpose of influencing an election could constitute a contribution to which the foreign-source ban could apply,” Mueller wrote. And that makes sense, as up until President Trump was elected, the Justice Department ruled that all sorts of things—even sexual relationships—count as “things of value.”

  This is all to say that President Trump’s request to President Zelensky was a clear campaign finance violation under existing laws—but to prevent the DOJ from making a similar ruling in the future, Congress should more clearly define a “thing of value” to include any and all coordination with a foreign power. We shouldn’t really need this, in the sense that this is already what current law requires. But in the wake of the absurd DOJ position that help from Ukraine wasn’t a “thing of value” because it could not be quantified (and also in the wake of Mueller grappling with the complexities of this issue in his final report), Congress needs to step in and clarify that a “thing of value” does not need to be quantifiable at a specific monetary value. That way, if a future candidate less blatantly (but still dangerously) solicits assistance from a foreign power, they can still be held accountable.