The People vs. Donald J. Trump

He is demonstrably unfit for office. What are we waiting for?

The presidential oath of office contains 35 words and one core promise: to “preserve, protect and defend the Constitution of the United States.” Since virtually the moment Donald J. Trump took that oath two years ago, he has been violating it. He has

  • repeatedly put his own interests above those of the country. He has
  • used the presidency to promote his businesses. He has accepted financial gifts from foreign countries. He has
  • lied to the American people about his relationship with a hostile foreign government. He has
  • tolerated cabinet officials who use their position to enrich themselves.

To shield himself from accountability for all of this — and for his unscrupulous presidential campaign — he has

  • set out to undermine the American system of checks and balances. He has
  • called for the prosecution of his political enemies and the protection of his allies. He has
  • attempted to obstruct justice. He has
  • tried to shake the public’s confidence in one democratic institution after another, including
    • the press,
    • federal law enforcement and the
    • federal judiciary.

The unrelenting chaos that Trump creates can sometimes obscure the big picture. But the big picture is simple: The United States has never had a president as demonstrably unfit for the office as Trump. And it’s becoming clear that 2019 is likely to be dominated by a single question: What are we going to do about it?

The easy answer is to wait — to allow the various investigations of Trump to run their course and ask voters to deliver a verdict in 2020. That answer has one great advantage. It would avoid the national trauma of overturning an election result. Ultimately, however, waiting is too dangerous. The cost of removing a president from office is smaller than the cost of allowing this president to remain.

He has already shown, repeatedly, that

  • he will hurt the country in order to help himself. He will damage American interests around the world and
  • damage vital parts of our constitutional system at home.

The risks that he will cause much more harm are growing.

Some of the biggest moderating influences have recently left the administration. The

  • defense secretary who defended our alliances with NATO and South Korea is gone. So is
  • the attorney general who refused to let Trump subvert a federal investigation into himself. The administration is increasingly filled with lackeys and enablers. Trump has become freer to turn his whims into policy — like, say, shutting down the government on the advice of Fox News hosts or pulling troops from Syria on the advice of a Turkish autocrat.

The biggest risk may be that an external emergency — a war, a terrorist attack, a financial crisis, an immense natural disaster — will arise. By then, it will be too late to pretend that he is anything other than manifestly unfit to lead.

For the country’s sake, there is only one acceptable outcome, just as there was after Americans realized in 1974 that a criminal was occupying the Oval Office. The president must go.

Since the midterm election showed the political costs that Trump inflicts on Republicans, this criticism seems to be growing. They have broken with him on foreign policy (in Saudi Arabia, Yemen and Syria) and are anxious about the government shutdown. Trump is vulnerable to any erosion in his already weak approval rating, be it from an economic downturn, more Russia revelations or simply the defection of a few key allies. When support for an unpopular leader starts to crack, it can crumble.

Before we get to the how of Trump’s removal, though, I want to spend a little more time on the why — because even talking about the ouster of an elected president should happen only under extreme circumstances. Unfortunately, the country is now so polarized that such talk instead occurs with every president. Both George W. Bush and Barack Obama were subjected to reckless calls for their impeachment, from members of Congress no less.

So let’s be clear. Trump’s ideology is not an impeachable offense. However much you may disagree with Trump’s tax policy — and I disagree vehemently — it is not a reason to remove him from office. Nor are his efforts to cut government health insurance or to deport undocumented immigrants. Such issues, among others, are legitimate matters of democratic struggle, to be decided by elections, legislative debates, protests and the other normal tools of democracy. These issues are not the “treason, bribery or other high crimes and misdemeanors” that the founders intended impeachment to address.

Yet the founders also did not intend for the removal of a president to be impossible. They insisted on including an impeachment clause in the Constitution because they understood that an incompetent or corrupt person was nonetheless likely to attain high office every so often. And they understood how much harm such a person could do. The country needed a way to address what Alexander Hamilton called “the abuse or violation of some public trust” and James Madison called the “incapacity, negligence or perfidy” of a president.

The negligence and perfidy of President Trump — his high crimes and misdemeanors — can be separated into four categories. This list is conservative. It does not include the possibility that his campaign coordinated strategy with Russia, which remains uncertain. It also does not include his lazy approach to the job, like his refusal to read briefing books or the many empty hours on his schedule. It instead focuses on demonstrable ways that he has broken the law or violated his constitutional oath.

Regardless of party, Trump’s predecessors took elaborate steps to separate their personal financial interests from their governing responsibilities. They released their tax returns, so that any potential conflicts would be public. They placed their assets in a blind trust, to avoid knowing how their policies might affect their own investments.

Trump has instead treated the presidency as a branding opportunity. He has continued to own and promote the Trump Organization. He has spent more than 200 days at one of his properties and billed taxpayers for hundreds of thousands of dollars.

If this pattern were merely petty corruption, without damage to the national interest, it might not warrant removal from office. But Trump’s focus on personal profit certainly appears to be affecting policy. Most worrisome, foreign officials and others have realized they can curry favor with the president by spending money at one of his properties.

Then, of course, there is Russia. Even before Robert Mueller, the special counsel, completes his investigation, the known facts are damning enough in at least one way. Trump lied to the American people during the 2016 campaign about business negotiations between his company and Vladimir Putin’s government. As president, Trump has taken steps — in Europe and Syria — that benefit Putin. To put it succinctly:

The president of the United States lied to the country about his commercial relationship with a hostile foreign government toward which he has a strangely accommodating policy.

Combine Trump’s actions with his tolerance for unethical cabinet officials — including ones who have made shady stock trades, accepted lavish perks or used government to promote their own companies or those of their friends — and the Trump administration is almost certainly the most corrupt in American history. It makes Warren G. Harding’s Teapot Dome scandal look like, well, a tempest in a teapot.

A Watergate grand jury famously described Richard Nixon as “an unindicted co-conspirator.” Trump now has his own indictment tag: “Individual-1.”

Federal prosecutors in New York filed papers last month alleging that Trump — identified as Individual-1 — directed a criminal plan to evade campaign finance laws. It happened during the final weeks of the 2016 campaign, when he instructed his lawyer, Michael Cohen, to pay a combined $280,000 in hush money to two women with whom Trump evidently had affairs. Trump and his campaign did not disclose these payments, as required by law. In the two years since, Trump has lied publicly about them — initially saying he did not know about the payments, only to change his story later.

It’s worth acknowledging that most campaign finance violations do not warrant removal from office. But these payments were not most campaign finance violations. They involved large, secret payoffs in the final weeks of a presidential campaign that, prosecutors said, “deceived the voting public.” The seriousness of the deception is presumably the reason that the prosecutors filed criminal charges against Cohen, rather than the more common penalty of civil fines for campaign finance violations.

What should happen to a president who won office with help from criminal behavior? The founders specifically considered this possibility during their debates at the Constitutional Convention. The most direct answer came from George Mason: A president who “practiced corruption and by that means procured his appointment in the first instance” should be subject to impeachment.

Whatever Mueller ultimately reveals about the relationship between the Trump campaign and Russia, Trump has obstructed justice to keep Mueller — and others — from getting to the truth.

Again and again, Trump has interfered with the investigation in ways that may violate the law and clearly do violate decades-old standards of presidential conduct. He

  •  pressured James Comey, then the F.B.I. director, to let up on the Russia investigation, as a political favor. When Comey refused, Trump fired him. Trump also repeatedly
  • pressured Jeff Sessions, the attorney general, to halt the investigation and ultimately forced Sessions to resign for not doing so. Trump has also
  • publicly hounded several of the government’s top experts on Russian organized crime, including Andrew McCabe and Bruce Orr.

And Trump has repeatedly lied to the American people.

  • He has claimed, outrageously, that the Justice Department tells witnesses to lie in exchange for leniency. He has
  • rejected, with no factual basis, the findings of multiple intelligence agencies about Russia’s role in the 2016 campaign. He reportedly
  • helped his son Donald Trump Jr. draft a false statement about a 2016 meeting with a Russian lawyer.

Obstruction of justice is certainly grounds for the removal of a president. It was the subject of the first Nixon article of impeachment passed by the House Judiciary Committee. Among other things, that article accused him of making “false or misleading public statements for the purpose of deceiving the people of the United States.”

The Constitution that Trump swore to uphold revolves around checks and balances. It depends on the idea that the president is not a monarch. He is a citizen to whom, like all other citizens, the country’s laws apply. Trump rejects this principle. He has instead tried to undermine the credibility of any independent source of power or information that does not serve his interests.

It’s much more than just the Russia investigation. He has

  • tried to delegitimize federal judges based on their ethnicity or on the president who appointed them, drawing a rare rebuke from Chief Justice John Roberts. Trump has
  •  criticized the Justice Department for indicting Republican politicians during an election year. He has
  • called for Comey, Hillary Clinton and other political opponents of his to be jailed. Trump has .
  • described journalists as “the enemy of the people” — an insult usually leveled by autocrats. He has
  • rejected basic factual findings from the
    • C.I.A., the
    • Congressional Budget Office,
    • research scientists and
    • others.
  • He has told bald lies about election fraud.

Individually, these sins may not seem to deserve removal from office. Collectively, though, they exact a terrible toll on American society. They cause people to lose the faith on which a democracy depends — faith in elections, in the justice system, in the basic notion of truth.

No other president since Nixon has engaged in behavior remotely like Trump’s. To accept it without sanction is ultimately to endorse it. Unpleasant though it is to remove a president, the costs and the risks of a continued Trump presidency are worse.

The most relevant precedent for the removal of Trump is Nixon, the only American president to be forced from office because of his conduct. And two aspects of Nixon’s departure tend to get overlooked today. One, he was never impeached. Two, most Republicans — both voters and elites — stuck by him until almost the very end. His approval rating among Republicans was still about 50 percent when, realizing in the summer of 1974 that he was doomed, he resigned.

The current political dynamics have some similarities. Whether the House of Representatives, under Democratic control, impeaches Trump is not the big question. The question is whether he loses the support of a meaningful slice of Republicans.

I know that many of Trump’s critics have given up hoping that he ever will. They assume that Republican senators will go on occasionally criticizing him without confronting him. But it is a mistake to give up. The stakes are too large — and the chances of success are too real.

Consider the following descriptions of Trump:

Every one of these descriptions comes from a Republican member of Congress or of Trump’s own administration.

They know. They know he is unfit for office. They do not need to be persuaded of the truth. They need to be persuaded to act on it.

.. Democrats won’t persuade them by impeaching Trump. Doing so would probably rally the president’s supporters. It would shift the focus from Trump’s behavior toward a group of Democratic leaders whom Republicans are never going to like. A smarter approach is a series of sober-minded hearings to highlight Trump’s misconduct.

Democrats should focus on easily understandable issues most likely to bother Trump’s supporters, like corruption.

If this approach works at all — or if Mueller’s findings shift opinion, or if a separate problem arises, like the economy — Trump’s Republican allies will find themselves in a very difficult spot. At his current approval rating of about 40 percent, Republicans were thumped in the midterms. Were his rating to fall further, a significant number of congressional Republicans would be facing long re-election odds in 2020.

Two examples are Cory Gardner of Colorado and Susan Collins of Maine, senators who, not coincidentally, have shown tentative signs of breaking with Trump on the government shutdown. The recent criticism from Mitt Romney — who alternates between critical and sycophantic, depending on his own political interests — is another sign of Trump’s weakness.

For now, most Republicans worry that a full break with Trump will cause them to lose a primary, and it might. But sticking by him is no free lunch. Just ask the 27 Republican incumbents who were defeated last year and are now former members of Congress. By wide margins, suburban voters and younger voters find Trump abhorrent. The Republican Party needs to hold its own among these voters, starting in 2020.

It’s not only that Trump is unfit to be president and that Republicans know it. It also may be the case that they will soon have a political self-interest in abandoning him. If they did, the end could come swiftly. The House could then impeach Trump, knowing the Senate might act to convict. Or negotiations could begin over whether Trump deserves to trade resignation for some version of immunity.

Finally, there is the hope — naïve though it may seem — that some Republicans will choose to act on principle. There now exists a small club of former Trump administration officials who were widely respected before joining the administration and whom Trump has sullied, to greater or lesser degrees. It includes

  • Rex Tillerson,
  • Gary Cohn,
  • H.R. McMaster and
  • Jim Mattis.

Imagine if one of them gave a television interview and told the truth about Trump. Doing so would be a service to their country at a time of national need. It would be an illustration of duty.

Throughout his career, Trump has worked hard to invent his own reality, and largely succeeded. It has made him very rich and, against all odds, elected him president. But whatever happens in 2019, his false version of reality will not survive history, just as Nixon’s did not. Which side of that history do today’s Republicans want to be on?

Bill Barr: Mueller’s “Obstruction” Theory

Indeed,the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful, subversive acts.

The President, as far as I know,is not being accused of engaging in any wrongful act of evidence impairment. Instead, Mueller is proposing an unprecedented expansion of obstruction laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution. It appears Mueller is relying on 18 U.S.C. §1512, which generally prohibits acts undermining the integrity of evidence or preventing its production. Section 1512 is relevant here because, unlike other obstruction statutes, it does not require that a proceeding be actually “pending” at the time of an obstruction, but only that a defendant have in mind an anticipated proceeding. Because there were seemingly no relevant proceedings pending when the President allegedly engaged in the alleged obstruction, I believe that Mueller’s team is considering the “residual clause” in Section 1512 — subsection (c)(2) —as the potential basis for an obstruction case. Subsection (c) reads: (c) Whoever corruptly– (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction]. [emphasis added].

As I understand the theory, Mueller proposes to give clause (c)(2), which previously has been exclusively confined to acts of evidence impairment, a new unbounded interpretation. First, by reading clause (c)(2)in isolation, and glossing over key terms, he construes the clause as a free- standing, all-encompassing provision prohibiting any act influencing a proceeding if done with an improper motive. Second, in a further unprecedented step, Mueller would apply this sweeping prohibition to facially-lawful acts taken by public officials exercising of their discretionary powers if those acts influence a proceeding. Thus, under this theory, simply by exercising his Constitutional discretion in a facially-lawful way — for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power ~ a President can be accused of committing a crime based solely on his subjective state of mind. As a result, any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.

If embraced by the Department, this theory would have potentially disastrous implications, not just for the Presidency, but for the Executive branch as a whole and for the Department in particular. While Mueller’s focus is the President’s discretionary actions, his theory would apply to all exercises of prosecutorial discretion by the President’s subordinates, from the Attorney General down to the most junior line prosecutor. Simply by giving direction on a case, or class of

.. cases, an official opens himself to the charge that he has acted with an “improper” motive and thus becomes subject to a criminal investigation. Moreover, the challenge to Comey’s removal shows that not just prosecutorial decisions are at issue. Any personnel or management decisions taken by an official charged with supervising and conducting litigation and enforcement matters in the Executive branch can become grist for the criminal mill based solely on the official’s subjective State of mind. All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case — such as removing a U.S. Attorney — could be cast as a crime of obstruction.

.. It is inconceivable to me that the Department could accept Mueller’s interpretation of §1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis for interrogating the President. I know you will agree that, if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime — not a debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.

.. First, the sweeping interpretation being proposed for § 1512’s residual clause is contrary to the Statute’s plain meaning and would directly contravene the Department’s longstanding and consistent position that generally-worded statutes like § 1512 can not be applied to the President’s exercise of his constitutional powers in the absence of a“clear statement”in the statute that such an application was intended.

Second, Mueller’s premise that, whenever an investigation touches on the President’s own conduct, it is inherently “corrupt” under § 1512 for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President’s supervisory authority. Moreover, such a limitation cannot be reconciled with the Department’s longstanding position that the “conflict of interest” laws do not, and cannot, apply to the President, since to apply them would impermissibly “disempower” the President from supervising a class of cases that the Constitution grants him the authority to supervise.

.. Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.

.. Fourth, even if one were to indulge Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt”unless the President and his campaign were actually guilty ofillegal collusion. Because the obstruction claim is entirely dependent on first finding collusion, Mueller should not be permitted to interrogate the President about obstruction until has enough evidence to establish collusion.

 

The Legal Perils That Michael Cohen’s Guilty Plea Poses for Donald Trump

on Thursday, Cohen admitted that this had been a lie; he acknowledged that he had continued to negotiate on Trump’s behalf well into 2016, until at least June, when Trump was already the presumptive Republican Presidential nominee. In other words, while Trump was running for President, his company was simultaneously (and secretly) negotiating with Russia to build a tower. Since Putin and his government effectively control all such developments in Russia, they held the fate of the project in their hands. As I wrote in the magazine in February, Trump had dreamed of building in Moscow for decades, and had travelled to the Russian capital as far back as the nineteen-eighties to try to make it happen.

.. The timing of Cohen’s guilty plea is significant. It seems that the prosecution team, led by Robert Mueller, the special counsel, delayed Cohen’s admission of guilt until after Trump and his legal team had submitted the President’s written answers to Mueller’s questions, which he did earlier this month. Mueller surely asked Trump about the Moscow negotiation, and the President’s answers were likely locked in before he and his lawyers could factor in Cohen’s admissions

.. If those answers were to conflict with Cohen’s latest version of events, it would potentially be a matter of great peril for the President.

.. The charging document from the guilty plea, prepared by the Mueller office, shows that Cohen’s account is corroborated by multiple contemporaneous e-mails between him and an “Individual 2,” who is likely Felix Sater, a frequent Trump business associate. (Sater is not named in the document.)

.. It’s true that Trump had the right to do business in Russia during the time when he was a candidate, but the public also had a right to know where his true financial interests lay. It would have been highly relevant to the public to learn that Trump was negotiating a business deal with Russia at the same time that he was proposing to change American policy toward that country. Not only was the public deprived of this information but Cohen’s guilty plea indicates that voters were actively misled about Trump’s interests.

.. That is what is so important about Thursday morning’s news—it says that while Trump was running for President, he was doing his private business, not the public’s business. Trump may believe that his interest is the national interest, but it wasn’t true then, and it’s not true now.

Killer Politicians

What rulers crave most is deniability. But with the murder of the Saudi journalist Jamal Khashoggi by his own government, the poisoning of former Russian spies living in the United Kingdom, and whispers that the head of Interpol, Meng Hongwei, may have been executed in China, the curtain has been slipping more than usual of late. In Riyadh, Moscow, and even Beijing, the political class is scrambling to cover up its lethal ways.

Andrew Jackson, was a cold-blooded murderer, slaveowner, and ethnic cleanser of native Americans. For Harry Truman, the atomic bombing of Hiroshima spared him the likely high cost of invading Japan. But the second atomic bombing, of Nagasaki, was utterly indefensible and took place through sheer bureaucratic momentum: the bombing apparently occurred without Truman’s explicit order.

.. Since 1947, the deniability of presidential murder has been facilitated by the CIA, which has served as a secret army (and sometime death squad) for American presidents. The CIA has been a party to murders and mayhem in all parts of the world, with almost no oversight or accountability for its countless assassinations. It is possible, though not definitively proved, that the CIA even assassinated UN Secretary-General Dag Hammarskjöld.

.. Many mass killings by presidents have involved the conventional military. Lyndon Johnson escalated US military intervention in Vietnam on the pretext of a North Vietnamese attack in the Gulf of Tonkin that never happened. Richard Nixon went further: by carpet-bombing Vietnam, Cambodia, and Laos, he sought to instill in the Soviet Union the fear that he was an irrational leader capable of anything. (Nixon’s willingness to implement his “madman theory” is perhaps the self-fulfilling proof of his madness.) In the end, the Johnson-Nixon American war in Indochina cost millions of innocent lives. There was never a true accounting, and perhaps the opposite: plenty of precedents for later mass killings by US forces.

.. The mass killings in Iraq under George W. Bush are of course better known, because the US-led war there was made for TV. A supposedly civilized country engaged in “shock and awe” to overthrow another country’s government on utterly false pretenses. Hundreds of thousands of Iraqi civilians died as a result.

Barack Obama was widely attacked by the right for being too soft, yet he, too, notched up quite a death toll. His administration repeatedly approved drone attacks that killed not only terrorists, but also innocents and US citizens who opposed America’s bloody wars in Muslim countries. He signed the presidential finding authorizing the CIA to cooperate with Saudi Arabia in overthrowing the Syrian government. That “covert” operation (hardly discussed in the polite pages of the New York Times) led to an ongoing civil war that has resulted in hundreds of thousands of civilian deaths and millions displaced from their homes. He used NATO airstrikes to overthrow Libya’s Muammar el-Qaddafi, resulting in a failed state and ongoing violence.

.. Under Trump, the US has abetted Saudi Arabia’s mass murder (including of children) in Yemen by selling it bombs and advanced weapons with almost no awareness, oversight, or accountability by the Congress or the public. Murder committed out of view of the media is almost no longer murder at all.

When the curtain slips, as with the Khashoggi killing, we briefly see the world as it is. A Washington Post columnist is lured to a brutal death and dismembered by America’s close “ally.” The American-Israeli-Saudi big lie that Iran is at the center of global terrorism, a claim refuted by the data, is briefly threatened by the embarrassing disclosure of Khashoggi’s grisly end. Crown Prince Mohammed bin Salman, who ostensibly ordered the operation, is put in charge of the “investigation” of the case; the Saudis duly cashier a few senior officials; and Trump, a master of non-stop lies, parrots official Saudi tall tales about a rogue operation.

A few government and business leaders have postponed visits to Saudi Arabia. The list of announced withdrawals from a glitzy investment conference is a who’s who of America’s military-industrial complex: top Wall Street bankers, CEOs of major media companies, and senior officials of military contractors, such as Airbus’s defense chief.

.. Political scientists should test the following hypothesis: countries led by presidents (as in the US) and non-constitutional monarchs (as in Saudi Arabia), rather than by parliaments and prime ministers, are especially vulnerable to murderous politics. Parliaments provide no guarantees of restraint, but one-man rule in foreign policy, as in the US and Saudi Arabia, almost guarantees massive bloodletting.