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.
In his letter to House leadership, the White House counsel, Pat Cipollone, drew a line in the sand: The administration will not “participate in” the impeachment proceedings in any way. The odd language of “participate in” — presidential impeachment is not meant to be a collaboration between Congress and the president — obscures the central thrust of the letter: The White House is refusing to respond to any subpoenas or other demands for information from the House.
Of course, other administrations have fought with Congress over access to information, but those fights have centered around clearly articulated objections, supported by legal reasoning, to turning over specific documents or allowing specific officials to testify. The Trump administration’s wholesale refusal to treat congressional information demands as legitimate is so different in degree as to become different in kind.
It might seem like the White House has the House of Representatives over a barrel. If the president simply refuses to engage, what can the House do? How does a chamber of Congress go about wringing information from an unwilling executive branch?
Let’s get one thing out of the way at the outset: The answer is unlikely to be found in a courtroom. That’s not to say that the House probably wouldn’t win on the merits. Most of the administration’s arguments are risible, and even many Republican judges will have trouble swallowing them. Indeed, when the George W. Bush and Barack Obama administrations raised significantly more plausible objections to congressional subpoenas, the courts sided with the House, ordering the executive to turn over the vast majority of the subpoenaed material.
But those court battles took years. Courts could expedite proceedings to an extent, but thus far they have shown themselves in no hurry to render final judgments in these disputes. And a court “victory” coming in 2021 or 2022 is no victory at all for the House — even assuming that the Trump administration would comply with a court order when it refuses to comply with a congressional one.
So what should the House do instead? Let me suggest two ways that it can play some constitutional hardball of its own, matching the White House’s aggressive tactics.
Refusal to comply with a duly authorized subpoena from Congress constitutes contempt of Congress. Contempt of Congress is a crime, and there is a mechanism for referring such cases to federal prosecutors. The problem, of course, is that federal prosecutors answer to the attorney general and, through him, to the White House, and they refuse to prosecute contempts committed by executive officials. In recent decades, congressional houses have sought a court order requiring executive officials to comply with their subpoenas, but that has all the problems described above.
The House should instead put back on the table the option of using its sergeant-at-arms to arrest contemnors — as the person in violation of the order is called — especially when an individual, like Rudy Giuliani, is not an executive branch official. Neither house of Congress has arrested anyone since 1935, but it was not uncommon before that point (and was blessed by the Supreme Court in 1927). Indeed, on at least two occasions, the second in 1916, a house of Congress had its sergeant arrest an executive branch official. (In that case, the Supreme Court eventually ruled against the House, not because it did not have the power to arrest for contempt, but rather because the offense — writing a nasty public letter to a House subcommittee — could not properly be understood as contempt of Congress.)
Facilities in the Capitol or one of the House office buildings can be made into a makeshift holding cell if necessary. Of course, arrestees will ask the courts to set them free, but the case should be relatively open-and-shut against them: They will have committed a contempt in refusing to turn over subpoenaed materials, and the House has the power to hold contemnors. Moreover, time would work in the House’s favor here: The unpleasantness of being in custody while the issue was being litigated might make some contemnors decide to cooperate.
The House arresting someone would be explosive and clearly should not be undertaken lightly. But the very explosiveness of it would be a way for the House to signal the seriousness of White House obstructionism to the public. Moreover, having arrest as an option of last resort might also make less extreme options more palatable.
One of those less extreme options would be using the power of the purse. The government is currently funded through Nov. 21. There is nothing stopping the House from putting a provision in the next funding bill that zeros out funding for the White House Counsel’s Office. House leadership could announce that, so long as the counsel’s office is producing bad legal argumentation designed for no purpose other than protecting the president from constitutional checks, the American people should not have to pay for it.
Of course, the Senate could try to strip that rider, or President Trump could veto the bill, but if the House held firm, the administration’s choice would be to mollify the House by turning over subpoenaed information, accept the defunding of the counsel’s office, or accept the partial government shutdown that would come with failure to pass the appropriations bill.
In the end, whether the House wins that fight, like whether it wins a fight over arresting a contemnor, would be a function of which side best convinces the public. But President Trump is deeply unpopular, and the public supports impeachment. If necessary, the House should be willing to have these fights.
You needn’t believe the hype about President Donald Trump being a 21st-century media wizard to concede he has a special talent for powershifting through the gears of the news cycle to blow past whatever current event might threaten his presidency. Whether it’s a function of Trump’s volatility or a measure of his craft, he has a knack for freezing out damaging news by creating his own news storms that transfix the press. He fires members of his Cabinet and staff, over-reaches with executive orders, picks fights with a Gold Star mother and football players, engages in ad hominem, and insults entire friendly countries.
In recent days as bad news has swelled around him, Trump has taken to screaming “treason” and “coup” at full volume to divert the news flow. But this time Trump’s hydraulics don’t seem to be working. Instead of Trump flooding the news cycle, the news cycle has begun to flood Trump. His special talents—if they really exist—have begun to fail him, and he seems to know it. In two recent press sprays, with the Finnish president and on the White House lawn, Trump’s peach complexion has gone scarlet with rage as he dodged and parried all the bad publicity.
You’d go scarlet, too, if you were Trump. Democratic members of the House of Representatives have begun marshaling evidence to prove Trump committed high crimes and misdemeanors as part of the House’s formal impeachment inquiry against the president. Two whistleblowers have come forward to allege abuse of power by Trump in his dealings with Ukraine’s president. An IRS whistleblower has filed a complaint alleging that a political appointee at the Treasury Department attempted to interfere with the annual audit of the president or vice president’s tax returns. A federal judge has ordered Trump to turn over his tax returns to the Manhattan district attorney. In recent days, three Republican senators (Susan Collins of Maine, Mitt Romney of Utah and Ben Sasse of Nebraska) have broken ranks with their cowardly colleagues to directly criticize Trump for urging China to investigate Joe Biden and Hunter Biden.
Even the president’s closest ally, Sen. Lindsey Graham, R-S.C., has turned on him. On Monday, Graham phoned into “Fox & Friends”to denounce Trump’s decision to dump the Kurds and embrace the Turks. The move is “shortsighted and irresponsible” as well as “unnerving,” Graham said, and his anger was shared by other Republican legislators. Inside the Pentagon, the brass also appeared to favor Graham’s position over Trump’s.
At the rate all this bad news is surging, Trump must be pining for the good old days when a new development in special counsel Robert S. Mueller III’s investigation was his greatest source of grief, and a nasty blast from his Twitter feed was potent enough to repel bad tidings. But suddenly Trump’s best-defense-is-a-good-offense talents are no longer sufficient to fend off the damage. In recent days, Trump has sought and failed to stall the impeachment express with tweets attacking Speaker Nancy Pelosi and Rep. Adam Schiff, D-Calif., but the press has largely ignored these pathetic lines of defense. In the old days, journalists would have rushed to their keyboards to dissect the Pelosi and Schiff tweets and placed under their magnifying glass Trump’s Monday tweet about the Kurds and Turks in which he referred to his own “great and unmatched wisdom.”
But as the Smiths once sang, that joke isn’t funny anymore. These days, the press seems more interested in charting the course of impeachment and the accumulating evidence than playing “go fetch” with Trump’s tweets. Not even Pat Robertson, a Trump stalwart if ever there was one, wants to follow the president on this one. Trump “is in great danger of losing the mandate of Heaven” if he spurns the Kurds, Robertson said.
Trump’s old techniques are failing—and not just due to the volume of the bad news. What’s unique about this phase of his presidency is that he’s being attacked with so much damning information from so many directions and so many different power centers that he can’t keep up. Not even a street fighter with Bruce Lee’s skills could repulse this sort of pile-on.
As somebody who has never counted Trump out, I believe he could restore his good fortune with some self-discipline. Midway through the first year of Trump’s presidency, columnist (and doctor of psychiatry) Charles Krauthammer took to calling the “general hysteria” the press and the political classes expressed for the president “Trump Derangement Syndrome.” According to Krauthammer and others, this reflexive, partisan hatred for Trump crippled people’s judgment of the man. Krauthammer urged us to stop listening to Trump’s id and pay more attention to what Trump was doing and what he had done. Finally, it appears, the press and Democrats have independently taken Krauthammer’s advice. As we enter impeachment autumn, the only principal still acting deranged is Trump himself.
Four senators up for re-election in swing states will be important leading indicators of GOP sentiments
Amid the hothouse atmosphere that has developed in Washington in recent days, some are seeing a strategy emerging from President Trump’s increasingly frequent and brazen broadsides against his opponents in the impeachment debate.
At this point, the strategy goes, Mr. Trump might as well urge House Democrats to bring on an impeachment case. That seems likely to happen anyway, so get your core supporters as agitated as possible in preparation. The impeachment case then would move to the Senate, controlled by fellow Republicans, where a loyal bloc of supporters would acquit the president.
Mr. Trump then could claim exoneration, his base would be more angry and energized than ever, and—added bonus—along the way, former Vice President Joe Biden would have been knocked out as the leading Democratic presidential contender, muddied by Mr. Trump’s frequent charges he engaged in shady activities in Ukraine. That means the president would run for re-election instead against Sen. Elizabeth Warren, a weaker general-election foe.
The theory is plausible enough, and even supported by the president’s declaration Friday that Democrats are “all in line” to impeach him.
That suggests the focus in the impeachment drama, heretofore on House Democrats, increasingly will shift to Senate Republicans. And in the first instance, that focus will be most intense on four particular Senate Republicans.
They are the four Senate Republicans up for re-election next year in swing states, where support for Mr. Trump isn’t as strong as it is in the deep-red states many of their colleagues represent. They are Sens.
Martha McSally of Arizona;
Cory Gardner of Colorado;
Susan Collins of Maine; and
Thom Tillis of North Carolina.
Comments critical of the president from sometimes-renegade Sens. Mitt Romney of Utah and Ben Sasse of Nebraska are noteworthy, but these four will be far more important leading indicators of GOP sentiments.
Sen. Cory Gardner, a Republican, is facing a difficult re-election race in his state of Colorado, where 56% of voters disapprove of President Trump. PHOTO: SUSAN WALSH/ASSOCIATED PRESS
These four face the toughest re-election races of any Republicans next year. The authoritative Cook Political Report rates the Arizona, Colorado and Maine races as tossups, and the North Carolina race as one that leans Republican.
They come from states where opinions of Mr. Trump are deeply divided. In fact, in each of the four states, Mr. Trump’s approval ratings are slightly underwater, meaning voters disapprove of him more than they approve of him, according to the rolling Morning Consult state-by-state poll. The picture is particularly difficult for Colorado’s Sen. Gardner; in his state, 41% of voters approve of Mr. Trump, while 56% disapprove.
Thus, when it comes to rendering judgment on the president, each of these four can be sure they will anger a significant chunk of their constituency no matter what they do. Their states have nearly an equal supply of fervent Trump supporters and Trump haters, with each group prepared to extract a painful price depending on how their senator behaves.
In fact, the four senators already began to feel the heat last week, when an organization named Need to Impeach began running ads in their states pressuring them to support impeachment. Need to Impeach, which is largely funded by billionaire and now Democratic presidential candidate Tom Steyer, is putting $3.1 million into running ads on television and on the internet. “How can we have a president who doesn’t think the law applies to him?” the ads ask, as patriotic images run in the background. “We are patriots who have always protected democracy. Will our senator?”
Kevin Mack, the top political strategist for Need to Impeach, says the ads represent a significant shift in the group’s efforts. Before now, the organization has focused on pressuring House Democrats to support impeaching Mr. Trump. With that goal seemingly reached, Need to Impeach is now shifting fire to Senate Republicans.
Next up on the group’s target list, Mr. Mack says, is the biggest Senate Republican of all: Majority Leader Mitch McConnell, who faces his own re-election battle in Kentucky next year.
The climb to the kind of supermajority needed in the Senate to convict and oust Mr. Trump is a steep one; the Constitution requires 67 Senate votes to convict an impeached president, and that means 20 Republican senators would have to turn on Mr. Trump. That seems wildly implausible right now.
Mr. Mack acknowledges the difficulty, but also argues: “One thing we’ve learned on this is that as soon as you get a few people to move your way it opens the floodgates and lots of people come your way.”
The Senate test remains a ways off. But when time comes to really gauge Republican backing for the president, it’s easy to know which four Senators represent the canaries in the coal mine.
