New white paper on the legal grounds for an impeachment investigation of the president

As we demonstrate in a new paper released today, The Legal Case for a Congressional Investigation on Whether to Impeach President Donald J. Trump, based on publicly reported information, as of today there are at least eight grounds for the House of Representatives to authorize the Judiciary Committee to begin hearings on whether to impeach President Donald J. Trump.

This paper presents a legal analysis based on the text, structure, and history of the Constitution and federal law, and legal and political precedent, that we have developed in consultation with a wide range of experts over the past ten months. Some of the grounds for investigation are based on violations of specific enumerated constitutional or statutory provisions, but in keeping with the intent of the Founders and the two-hundred-year history of impeachments, other grounds are based on abuses of power that do not fall easily within a specific proscription. The grounds for investigation are:

Obstructing justice

Beginning soon after the inauguration, the president engaged in a course of conduct that sought to obstruct justice in the Federal Bureau of Investigation’s investigations of Lieutenant General Michael Flynn and of his own campaign’s potential involvement with Russian activity in the 2016 election.

Violating the Foreign Emoluments Clause and Domestic Emoluments Clause of the United States Constitution

Through his businesses in the United States and abroad, the president receives payments, regulatory approval, and other forms of direct and indirect financial benefits from foreign governments. These violate the Constitution’s Foreign Emoluments Clause, which prohibits federal officials, including the president, from receiving a “present” or “emolument” from any foreign government or official. The president’s businesses also act as a conduit for enrichment from federal and state government coffers. These violate the Domestic Emoluments Clause, which prohibits the president from receiving, beyond his official salary, any emolument from the United States or any state.

Conspiring with others to commit crimes against the United States involving the solicitation and intended receipt by his presidential campaign of things of value from a foreign government and other foreign nationals, and to conceal those violations

In the 2016 election, the senior-most officials of Trump’s presidential campaign (including his campaign chairman, his son, and his son-in-law) met with Russian nationals after an invitation to receive compromising information about his campaign opponent, Hillary Clinton, that they were told would be of great value to the campaign. Federal campaign finance law prohibits a candidate or campaign from soliciting a foreign national (including a foreign government) for a thing of value. In 2017, after this meeting was revealed, President Trump personally dictated a misleading public statement on behalf of his son as to the intended purpose of the meeting.

Advocating illegal violence, giving aid and comfort to white supremacists and neo-Nazis, and undermining constitutional protections of equal protection under the law

Over the course of 2017, the president has made a series of public statements that, together, constitute a pattern of conduct that violates his constitutional obligation to “take care that the laws be faithfully executed,” protect the citizenry against “domestic violence,” and ensure “the equal protection of the laws.”

Abusing the pardon power

The president’s pardon of former Arizona sheriff Joseph Arpaio, who had been convicted of criminal contempt of court for willfully violating a court order to stop violating the constitutional rights of Latino drivers, abused the pardon power by sending the dangerous message that similarly-inclined unscrupulous law enforcement officials could not only violate individual rights, but could also violate court orders requiring them to stop violating those rights with impunity because the president would support them.

Recklessly threatening nuclear war against foreign nations, undermining and subverting the essential diplomatic functions and authority of federal agencies, including the United States Department of State, and engaging in other conduct that grossly and wantonly endangers the peace and security of the United States, its people and people of other nations, by heightening the risk of hostilities involving weapons of mass destruction, with reckless disregard for the risk of death and grievous bodily harm

Through a series of public statements (including on Twitter), and beginning particularly in the late summer of 2017, the president has made increasingly reckless public threats against North Korea. It is not clear whether President Trump understands the ramifications of his actions. While the president is the commander-in-chief of the armed forces, reckless or wanton conduct with the potential for millions of deaths constitutes an abuse of power.

Directing or endeavoring to direct law enforcement, including the Department of Justice and the Federal Bureau of Investigation, to investigate and prosecute political adversaries and others, for improper purposes not justified by any lawful function of his office, thereby eroding the rule of law, undermining the independence of law enforcement from politics, and compromising the constitutional right to due process of law

The president has repeatedly pressured federal law enforcement to investigate and prosecute political adversaries, including former campaign opponent Hillary Clinton and the Democratic Party. The president’s attempts to employ the criminal investigative powers of the federal government against political opponents for purposes unrelated to national security, the enforcement of laws, or any other lawful function of his office are grounds for impeachment.

Undermining the freedom of the press

The president has repeatedly attacked major U.S. news organizations as “fake news” and “the enemy of the American people.” To be sure, the president is certainly free to criticize particular news stories that he believes are inaccurate, and no one tweet in isolation constitutes an impeachable offense. But his consistent pattern of attacks undermines a critical foundation of a free society.

Download The Legal Case for a Congressional Investigation on Whether to Impeach President Donald J. Trump


 

Some of the impeachable offenses discussed in the paper overlap with the criminal investigation of Special Counsel Robert S. Mueller III; some overlap with other pending federal litigation; others do not overlap with any parallel proceeding. However, as our paper explains, an impeachment investigation is entirely separate from a criminal or other judicial proceeding. The purpose of impeachment is not to punish for past crimes, but to remove from office a dangerous official who threatens the rule of law and the republic itself.

Congress must not use the Mueller investigation or other litigation as an excuse to shirk its duty to conduct its own independent impeachment hearings. The abuse of power, the corruption, and the threat to our republic are here now.

About the authors: Ron Fein, John Bonifaz, and Ben Clements are, respectively, the Legal Director, President, and Chair of the Board of Directors of Free Speech For People. We are particularly grateful to Professor Catherine J. Ross of George Washington University Law School and Professor Jennifer Taub of Vermont Law School for their extensive comments and for joining us in presenting this paper.

 

 

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