It’s been a mere week since Senate Republicans acquitted President Trump in his impeachment trial — assuring him once and for all that he needn’t fret about congressional accountability — but he has already made significant progress on his enemies list.
Members of Congress, administration officials, law enforcement officials, residents of blue states — anyone who has ever displeased Mr. Trump is a potential target. Heads may not wind up on literal pikes, but the president is already neck-deep into his reprisal tour.
The president’s targets can be sorted into multiple different categories, some better equipped than others to endure his wrath. Democratic senators such as Mr. Jones of Alabama and Mr. Manchin of West Virginia, both of whom have drawn Trumpian ire for their votes to convict the president, understand that politics is a blood sport. Ditto House members like Ms. Dingell, whom Mr. Trump randomly attackedagain over the weekend, and Mr. Schiff, who was the point person on impeachment. These professionals know how to brush off — or brush back — the taunts.
After a particularly childish screed, in which Mr. Trump called Mr. Manchin “Joe Munchkin,” the West Virginia lawmaker returned fire Monday on CNN: “I guess he’s confused on that, because I am a little bigger than him. He’s got me about 30 pounds on weight. But I am a little taller than him.”
Mr. Romney, the lone Republican to vote to convict Mr. Trump of abuse of power, is more exposed. It’s not just the president mocking him and denigrating his religious faith. The White House also blasted out nasty talking points for surrogates to disseminate. Title: “Romney (Once Again) Ditches Principles to Seek Far Left’s Adulation.”
That said, Mr. Romney is a former presidential combatant. He knows how to take a punch. He also isn’t up for re-election until 2024, plenty of time for all this to pass. In the meantime, he’ll enjoy some brand burnishing in non-Trump circles for having followed his conscience.
Mr. Trump is also grumpy with Mr. Bolton, the former national security adviser who, The Times reported, wrote in his forthcoming memoir that the president told him that there was a link between Ukraine aid and the announcement of investigations of Joe Biden and his son. In addition to calling Mr. Bolton a liar, Mr. Trump has sought to block the release of his book, and there is talk of stripping him of his security clearance.
But Mr. Bolton, too, is nobody’s victim. He is a seasoned Washington knife-fighter who played his own coy game with impeachment investigators.
It’s also hard to feel too sorry for Gordon Sondland, the ambassador to the European Union whom Mr. Trump fired last week. Mr. Sondland essentially bought his diplomatic post with fat donations to Mr. Trump’s inauguration. He changed his testimony mid-impeachment, rendering him a less than exemplary witness. He is, above all, a cautionary tale for those willing to sell their souls for power and prestige.
Far more troubling is the assault on not-so-political public servants, such as Lt. Col. Alexander Vindman, a key impeachment witness. On Friday, Colonel Vindman was ousted from his post on the National Security Council.
Creepier still, the president also fired Colonel Vindman’s twin brother, Yevgeny, a lawyer at the National Security Council who was not an impeachment witness. Such gratuitous score-settling carries a whiff of the Cosa Nostra, in which talking to the feds results in one’s family being targeted — in part to send a message to other potential rats.
Mr. Trump is making perfectly clear the high cost of questioning his questionable behavior or cooperating with Congress.
Also this week, federal prosecutors are back in the president’s cross hairs. On Monday, prosecutors recommended sentencing Roger Stone, Mr. Trump’s longtime political fixer who was convicted in November on charges stemming from Robert Mueller’s investigation of Russian influence, to seven to nine years behind bars. This did not sit well with the president, who was up in the wee hours on Tuesday tweeting his displeasure. “Disgraceful!” he erupted shortly before 1 a.m. Not quite an hour later, he elaborated: “This is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”
By Tuesday afternoon, the Justice Department had dutifully announced it would revisit the “grossly disproportionate” sentencing recommendation. All four prosecutors handling the case promptly withdrew.
Far from denying Operation Vengeance, the White House has been justifying it. In the run-up to the president’s acquittal address last Thursday, the White House press secretary, Stephanie Grisham, assured Fox News viewers that he would be talking about “just how horribly he was treated and, you know, that maybe people should pay for that.”
Mr. Trump is now hard at work making that happen. And who’s to stop him?
Over his nearly three years in office, lawyers representing President Trump have made numerous legal arguments that, taken as a whole, would give the president sweeping immunity—even if he were to commit murder.
An extensive review of correspondence, court documents, legal opinions and public statements from lawyers representing Mr. Trump shows the president’s attorneys have consistently pushed to put him beyond the reach of any other institution in federal, state or local government—immune to civil lawsuits, judicial orders, criminal investigations or congressional probes.
One lawyer for the president recently went so far as to suggest that Mr. Trump could shoot someone on Manhattan’s Fifth Avenue and not be investigated by local authorities, echoing a statement the president made during his 2016 campaign in which he said he wouldn’t lose any voters over such an action.
“This administration has articulated a view of presidential power in which the president is above the law,” said Erica Newland, who served in the Justice Department Office of Legal Counsel during both the Obama and Trump administrations.
PRESIDENTIAL POWER
Some positions that lawyers representing Mr. Trump, the White House or the Department of Justice have argued since January 2017 in court or in other legal documents:
Mr. Trump is immune from criminal investigation while he remains in office, even if he were to shoot someone on the streets of Manhattan.
“If he can’t be held accountable via executive-branch law enforcement and he can’t be held accountable via congressional impeachment, then we really do have a king,” said Ms. Newland, now counsel at the bipartisan legal advocacy group Protect Democracy.
Lawyers representing the president either in his personal or institutional capacity have argued that
law enforcement can’t investigate the president at all; that
he can shut down investigations into himself or his associates; and that
obstruction-of-justice laws don’t apply to the president.
At the same time, since Democrats took over Congress in January, Mr. Trump’s government and personal lawyers have fought numerous legal battles over congressional oversight—arguing that close aides don’t have to testify even if subpoenaed, that all congressional investigations must serve a “legislative purpose,” that cabinet secretaries can disobey subpoenas and that a congressional impeachment inquiry is invalid.
Further, they have argued that federal courts don’t have the authority to transmit any evidence of presidential wrongdoing obtained by a grand jury to Congress for possible consideration of impeachment. In some instances, Trump administration attorneys have contended that some executive decisions are unreviewable by the courts, or that courts have no right to issue orders stopping the president from taking official actions.
Some of the claims contradict each other: Mr. Trump’s personal attorneys have argued he can be held accountable only by Congress, while his White House lawyers fought efforts to hold him accountable in Congress.
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The White House, the Justice Department and an attorney representing Mr. Trump personally didn’t respond to multiple requests for comment.
To some extent, these positions reflect what all lawyers do: take aggressive, maximalist legal positions in the best interests of the client, and see if a court agrees. Lawyers for previous presidents—Democrats and Republicans—are no strangers to making similarly aggressive claims about powers, authority and immunities to defend the president personally or the long-term power and authority of the office.
But scholars who study the history of presidential power say what is different about the Trump administration is its unwillingness to acknowledge the legitimacy and interests of other institutions.
“Mr. Trump has taken the position that the [Constitution’s] Article II powers of the president give him absolute authority. What makes his case different is that he is not even recognizing the legitimacy of countervailing powers” such as Congress, said Mark Rozell, a dean at George Mason University who has studied presidential authority. “He is deeming them as politically motivated and not legitimate in their inquiries and therefore to be obstructed at every turn.”
Executive Privilege: What Are the Limits?
Executive privilege refers to the president’s right to keep certain things confidential. But how far can it be stretched? WSJ’s Shelby Holliday looks at past uses of executive privilege and explains how it could factor into the impeachment inquiry. Photo: Getty
The issue gets even more complicated in investigations like impeachment because overlapping legal teams are defending the president in both his capacity as an individual and his capacity as the president.
Government lawyers represent the presidency as an institution and are supposed to advance arguments to preserve the institutional powers of the president—but aren’t supposed to defend the president’s personal interests.
The Justice Department, the White House counsel and his personal legal team are all defending the president on a cornucopia of different lawsuits around the country.
John Yoo, a former Bush administration official known for his advocacy of expansive presidential power, said many of the most extreme legal positions taken by the Trump lawyers have come from his personal attorneystrying to defend him by invoking the powers of the presidency. He said that most of the positions the Justice Department, White House counsel and other government lawyers have taken are in line with previous practices.
“When it comes to where he’s making the arguments on behalf of the office of the presidency, in his official capacity, I think he’s gone just as far as other presidents have,” Mr. Yoo said. “In the areas where the president has been defending himself as an individual rather than the office, he has made arguments that have gone beyond what past presidents have set out.”
Mr. Yoo added: “I think that Trump has been under unprecedented assault—constitutionally, legally—from his critics too. I can see why his lawyers are bringing out these arguments which are usually reserved for times of real crisis.”
Mr. Trump isn’t the first to provoke a legal showdown over his powers and immunities. But rarely did the attorneys representing other presidents deny that other institutions also had legitimate interests.
Richard Nixon sparked a major legal battle over his refusal to turn over tapes of Oval Office conversations to prosecutors and Congress. But he also offered numerous compromises, such as turning over transcripts, because he and his attorneys recognized that Congress and prosecutors had legitimate interests in access to the materials as part of their inquiries.
During a yearslong independent counsel investigation and later impeachment, President Bill Clinton also fought numerous legal battles over his privileges and immunities, but frequently argued before courts that they needed to balance the interests of the presidency against the needs of Congress or law enforcement. Mr. Clinton, for instance, agreed to testify before a grand jury in exchange for independent prosecutor Ken Starr dropping a subpoena.
President George W. Bush fought back against a Democratic-led congressional investigation to keep his top aides from testifying about the firing of federal prosecutors for what critics said were political reasons, but offered a compromise by allowing voluntary interviews and turning over documents to Congress.
Few of those legal positions have ever been blessed by courts.
Last week, Mr. Trump’s personal attorney William Consovoy argued before a New York federal appeals court in the tax case that Mr. Trump couldn’t be investigated for any crime while in office. The judge asked if that included shooting someone on Fifth Avenue. “Nothing could be done?” he asked.
“That’s correct,” Mr. Consovoy said. That case is pending.
In another instance earlier this month, Justice Department lawyers argued that a court couldn’t give Congress evidence that was gathered by special counsel Robert Mueller if it was obtained using a grand jury—going so far as to say that a federal judge was wrong in 1974 to give Congress materials from the grand jury investigating the Watergate break-in.
“Wow, OK,” U.S. District Judge Beryl A. Howell said in response to that argument. “The department is taking extraordinary positions in this case.”
She ruled against the Justice Department last week, writing that her decision was motivated in part by the White House’s refusal to cooperate with congressional investigators.
We, former members of the Watergate special prosecutor force, believe there exists compelling prima facie evidence that President Trump has committed impeachable offenses. This evidence can be accepted as sufficient for impeachment, unless disproved by any contrary evidence that the president may choose to offer.
The ultimate judgment on whether to impeach the president is for members of the House of Representatives to make. The Constitution establishes impeachment as the proper mechanism for addressing these abuses; therefore, the House should proceed with the impeachment process, fairly, openly and promptly. The president’s refusal to cooperate in confirming (or disputing) the facts already on the public record should not delay or frustrate the House’s performance of its constitutional duty.
4) the president’s continuing refusal to produce documents or allow testimony by current and former government employees for pending investigations, as well as for oversight matters; and
5) other information now publicly available, including State Department text messages indicating that the release of essential military aid to Ukraine was conditioned on Ukraine’s willingness to commence a criminal investigation designed to further the president’s political interests.
In the 1970s, we investigated serious abuses of presidential power by President Richard M. Nixon, including obstruction of justice, concealment of government records and misuse of government agencies to punish his political enemies. We prosecuted many of Nixon’s aides for their complicity in Nixon’s offenses. Rather than indicting the president, the grand jury named him an unindicted co-conspirator, delivered to the House a “road map” of the evidence implicating him in wrongdoing and deferred to the House’s constitutional responsibility to address such presidential wrongdoing through the impeachment process.
The House, through its Judiciary Committee, fulfilled that responsibility by reviewing the evidence, interviewing witnesses and concluding that the facts warranted adopting three articles of impeachment:
In our considered view, the same three articles of impeachment could be specified against Trump, as he has demonstrated serious and persistent abuses of power that, in our view, satisfy the constitutional standard of “high crimes and misdemeanors.” For example:
● Trump conditioned protection of the military security of the United States and of an ally (Ukraine) on actions for his personal political benefit.
● Trump subordinated the integrity of our national electoral process to his own personal political interest by soliciting and encouraging foreign government interference in our electoral process, including by Russia and China. He also appears to have demanded that Ukraine investigate a potential 2020 political opponent and pursue the conspiracy theory that Ukraine had interfered in the 2016 presidential election, despite the unanimous conclusion of the U.S. intelligence community that it was Russia that had interfered.
● According to the evidence laid out in the Mueller report, Trump engaged in multiple acts of obstruction of justice in violation of federal criminal statutes and of his oath of office to “take care that the laws be faithfully executed.” Because Mueller viewed Justice Department policy as precluding him from filing criminal charges against the president, the special counsel appropriately stated that these abuses are for Congress to address.
● Trump obstructed lawful congressional investigations by systematically withholding evidence and by directing government agencies and employees to refuse to cooperate with legitimate oversight by Congress. Most significantly, the president’s blanket refusal to honor requests for relevant information sought by House members conducting an impeachment inquiry constitutes impeachable contempt and obstruction. The public is entitled to know the facts, and Congress is the body our democracy has entrusted with uncovering them.
The Constitution provides for the elected representatives of the people to resort to impeachment in extraordinary circumstances showing that this drastic remedy is necessary to restrain, and possibly remove, a president who has engaged in high crimes and misdemeanors. Proper regard for reestablishing and protecting the rule of law requires firm and resolute action by the House. Lawmakers should not allow any refusal by the president to cooperate in its process to frustrate the performance of its constitutional duties.
If a bill of impeachment comes before the Senate, we urge all members of the Senate to put aside partisan loyalties and carry out their own constitutional duties courageously and honestly. In 1974, it was a group of Republican senators who put national interest over party loyalty and informed Nixon that his conduct was indefensible and would compel conviction by the Senate and removal from office. We hope the current Senate would similarly put honor and integrity above partisanship and personal political interest.
Former head of the Office of Legal Counsel Walter Dellinger tells Lawrence that there is already enough evidence to find that “the president obstructed justice in the worst of high crimes and misdemeanors.” Mimi Rocah also joins.
Executive Privilege: What Are the Limits?