Pol­i­tics

The Case for Im­peach­ment

Newsweek - - News - BY EL­IZ­A­BETH HOLTZ­MAN

SHOULD WE BE CON­SID­ER­ING THE IM­PEACH­MENT of Pres­i­dent Don­ald Trump?

Many trem­ble at the idea, fear­ing how Trump’s sup­port­ers will re­act to an im­peach­ment in­quiry, wor­ry­ing that it will only fur­ther po­lar­ize an al­ready deeply di­vided na­tion or that there will not be enough votes in the Se­nate to con­vict him even if the House of Rep­re­sen­ta­tives votes to im­peach.

I’m not afraid. As a ju­nior con­gress­woman, the youngest ever elected at that time, I served on the House Ju­di­ciary Com­mit­tee that voted to im­peach Pres­i­dent Richard Nixon for the high crimes and mis­de­meanors he com­mit­ted in con­nec­tion with the Water­gate cover-up and other mat­ters.

To eval­u­ate the case against Trump fairly, we need to set aside his un­remit­ting at­tacks on the en­vi­ron­ment, on our close al­lies, on al­most ev­ery pro­gram that Pres­i­dent Barack Obama put into ef­fect (in­clud­ing the Af­ford­able Care Act) and any dis­agree­ments we have over pol­icy, as well as any per­sonal an­i­mus.

With Trump again de­cry­ing spe­cial coun­sel Robert Mueller’s in­ves­ti­ga­tion as a “phony witch hunt,” we’ll even leave Rus­sia off the ta­ble. Po­ten­tial col­lu­sion aside, there are still plenty of im­peach­able of­fenses. Two of the strong­est are Trump’s re­fusal to sep­a­rate him­self from his busi­ness in­ter­ests (a po­ten­tial vi­o­la­tion of the bribery ban and the Con­sti­tu­tion’s emol­u­ments clause) and his ap­proval of a “fam­ily sep­a­ra­tion” im­mi­gra­tion pol­icy (a po­ten­tial abuse of power).

BRIBERY

Bribery strikes at the heart of democ­racy and se­ri­ously en­dan­gers the coun­try. It is one of the con­sti­tu­tion­ally spec­i­fied grounds for im­peach­ment for good rea­son, as a pres­i­dent who is swayed by bribes is no longer act­ing in the best in­ter­ests of the coun­try and its peo­ple. Congress may not be strictly bound in an im­peach­ment pro­ceed­ing by the el­e­ments of the cur­rent fed­eral bribery statutes or

the re­cent Supreme Court de­ci­sions in­ter­pret­ing them. But im­peach­ment for tak­ing bribes should none­the­less en­com­pass the know­ing re­ceipt by a pres­i­dent of money or some­thing of value de­signed to af­fect the pres­i­dent’s of­fi­cial be­hav­ior—whether the pres­i­dent’s be­hav­ior is af­fected or not. This is the gist of bribery.

Trump, of course, is a prime tar­get for such charges be­cause, un­like his pre­de­ces­sors, he has re­fused to sep­a­rate him­self from his numer­ous and far-flung busi­ness in­ter­ests, such as ho­tels and golf cour­ses, and is still able, while pres­i­dent, to earn money from those busi­nesses. Bribes may eas­ily be dis­guised in the busi­ness con­text—for ex­am­ple, by over­pay­ments for prop­erty, goods or ser­vices.

Three re­cent trans­ac­tions in­volv­ing Trump raise the specter of bribery and should be fully in­ves­ti­gated. After ini­tially ques­tion­ing Bei­jing’s “One China” pol­icy, which con­sid­ers self-gov­ern­ing, demo­cratic Tai­wan part of China, Trump re­versed course after the Chi­nese gov­ern­ment ap­proved Trump Or­ga­ni­za­tion trade­marks. Like­wise, the pres­i­dent or­dered the U.S. gov­ern­ment to lift sanc­tions on Chi­nese com­pany ZTE after China an­nounced it was go­ing to in­vest “bigly” in an In­done­sia theme park with which the Trump Or­ga­ni­za­tion had a li­cens­ing deal.

This pat­tern of be­hav­ior ex­tends to the Mid­dle East. In June 2017, Trump joined a coali­tion of coun­tries in a block­ade of Qatar, which he called “a great spon­sor of ter­ror­ism.” A year later, how­ever, Qatar be­came “a great friend” after a ma­jor part­ner of the Qatari gov­ern­ment reached a fi­nanc­ing deal for a fail­ing build­ing on Man­hat­tan’s Fifth Av­enue owned by Trump’s son-in-law and ad­viser Jared Kush­ner.

More­over, non­pub­lic in­for­ma­tion may be in the hands of Mueller, other branches of the Depart­ment of Jus­tice or our in­tel­li­gence agen­cies. All the pub­licly avail­able in­stances would re­quire fur­ther in­ves­ti­ga­tion, which could be un­der­taken as part of an im­peach­ment in­quiry con­ducted by the House Ju­di­ciary Com­mit­tee or an­other com­mit­tee of the House or Se­nate.

As with high crimes and mis­de­meanors, im­peach­ment for bribery need not be based on a con­vic­tion un­der a spe­cific crim­i­nal statute. We do not have to wait for the pres­i­dent to be con­victed of bribery be­fore he can be im­peached, a seem­ingly im­pos­si­ble pre­con­di­tion for im­peach­ment since Jus­tice Depart­ment pol­icy ap­pears to be that a pres­i­dent can­not be in­dicted while in of­fice.

EMOL­U­MENTS

As with bribery, the framers of the Con­sti­tu­tion pro­vide no def­i­ni­tion of emol­u­ments, which are first cousins of bribery. Framers so strongly feared that emol­u­ments would carve a path to cor­rup­tion that they wrote two pro­vi­sions to guard against it: one to bar the tak­ing of emol­u­ments from for­eign gov­ern­ments and an­other to bar their re­ceipt from states and the fed­eral gov­ern­ment.

From An­drew Jack­son to Barack Obama, U.S. pres­i­dents have asked for the ap­proval of ei­ther Congress or the Jus­tice Depart­ment in re­gard to the pro­pri­ety of po­ten­tial emol­u­ments, the lat­est be­ing the No­bel Peace Prize of more than $1 mil­lion given to Obama. The Jus­tice Depart­ment con­cluded that the prize was not im­proper, since it was not given by a “King, Prince or for­eign State.” Other pres­i­dents be­fore Trump, in­clud­ing Abra­ham Lin­coln and Ron­ald Rea­gan, tried scrupu­lously to ad­here to the clauses.

Keep­ing the pres­i­dent free of this kind of for­eign in­flu­ence—and the ap­pear­ance of it—was a ma­jor worry of the Con­sti­tu­tion’s framers. Trump’s re­fusal to at­tend to this con­cern—in fact, his to­tal dis­dain for it—is what makes his treat­ment of emol­u­ments a great and dan­ger­ous of­fense. The por­ous line be­tween his per­sonal and gov­ern­men­tal busi­ness, par­tic­u­larly in the area of for­eign af­fairs, poses an im­mi­nent dan­ger to Amer­ica, and his stead­fast re­fusal to rec­tify the prob­lem may con­sti­tute a high crime and mis­de­meanor.

Trump’s son Eric has said that he re­ports on the busi­ness reg­u­larly to his fa­ther. In late 2017, The Wash­ing­ton Post ob­tained an email from the di­rec­tor of rev­enue man­age­ment for the Trump In­ter­na­tional Ho­tel in Wash­ing­ton that stated Don­ald Trump is “very much still in­volved.”

In a vi­o­la­tion of the for­eign emol­u­ments clause, for­eign diplo­mats have re­peat­edly cho­sen to stay at Trump In­ter­na­tional de­spite its price

We do not have to wait for the pres­i­dent to be con­victed of bribery be­fore he can be im­peached.

be­ing the high­est in D.C. Trump has re­ceived mil­lions while in of­fice from rent and pur­chases by for­eign gov­ern­ments and dig­ni­taries from stays at his New York prop­er­ties. For­eign gov­ern­ments and their part­ners have also made spe­cial ac­com­mo­da­tions to Trump Or­ga­ni­za­tion pro­jects in In­done­sia, Is­tan­bul, Panama, and the Philip­pines’s Manila.

Al­though Trump has been of­fered mul­ti­ple ways to rem­edy these vi­o­la­tions and urged re­peat­edly to do so, he has cho­sen not to. Per­haps above all, he has ac­cepted emol­u­ments with­out ask­ing for con­gres­sional ap­proval, fla­grantly vi­o­lat­ing the Con­sti­tu­tion.

ABUSE OF POWER BY SEP­A­RAT­ING CHIL­DREN FROM PAR­ENTS

There is noth­ing in U.S. im­mi­gra­tion law that au­tho­rizes tak­ing chil­dren from par­ents as a penalty for vi­o­la­tion of im­mi­gra­tion laws. In im­pos­ing such a penalty, there­fore, Trump abuses the power of his of­fice in a most se­ri­ous way.

Tak­ing chil­dren from par­ents (when done not to pro­tect the child) is not just “hor­ri­ble,” as he him­self has said. It is cruel, de­praved and mer­ci­less. Yet, with­out law­ful au­thor­ity, the pres­i­dent has di­rected and ap­proved what amounts to the kid­nap­ping and tor­ture of thou­sands of chil­dren. No con­cern for fam­ily re­uni­fi­ca­tion was ap­par­ent at any stage in the pol­icy’s im­ple­men­ta­tion. The chil­dren and par­ents tar­geted, prob­a­bly be­cause of their Latin Amer­i­can ori­gin, were not even viewed as hu­man.

Fur­ther­more, it ap­pears that one of Trump’s mo­tives in creat­ing this “hor­ri­ble” pro­gram was to force the Democrats to ac­cept his im­mi­gra­tion poli­cies, in­clud­ing his wall. He all but ad­mit­ted this on Twit­ter on June 16: “Democrats can fix their forced fam­ily breakup at the Bor­der by work­ing with Repub­li­cans on new leg­is­la­tion.”

A law­suit filed by state at­tor­neys gen­eral against the ad­min­is­tra­tion de­cried this ap­proach: “Fam­i­lies are in­ten­tion­ally be­ing trau­ma­tized for po­lit­i­cal gain.” The sep­a­ra­tion of chil­dren from par­ents for po­lit­i­cal gain is a great and dan­ger­ous of­fense.

There are other se­ri­ous con­sti­tu­tional is­sues in­volved in the pol­icy. Sig­nif­i­cantly, it was put into ef­fect only on the South­west bor­der, where most bor­der crossers are His­panic. Trump’s hos­til­ity to His­pan­ics is well known. He char­ac­ter­ized Mex­i­cans as “rapists” dur­ing his cam­paign, called El Sal­vador a “shit­hole coun­try” and in May said of un­doc­u­mented im­mi­grants from Cen­tral Amer­ica and Mex­ico: “You wouldn’t be­lieve how bad these peo­ple are. These aren’t peo­ple. These are an­i­mals.” Im­pos­ing a pro­gram of sep­a­rat­ing chil­dren from par­ents on a racial or eth­nic ba­sis is an abuse of power, and it also vi­o­lates the con­sti­tu­tional rights of the chil­dren and par­ents to equal pro­tec­tion of the law.

Ab­sent ev­i­dence that be­ing to­gether is harm­ful, it is also a vi­o­la­tion of due process to sep­a­rate chil­dren and par­ents with­out a court hear­ing of any kind.

A pres­i­dent who so de­lib­er­ately, cru­elly and ca­su­ally in­flicted se­ri­ous men­tal and psy­cho­log­i­cal harm on thou­sands—man­i­festly on an eth­nic ba­sis, as a de­ter­rent to oth­ers and as a po­lit­i­cal tool to get leg­is­la­tion passed with­out re­gard to the rights of the chil­dren and par­ents—has sub­verted the Con­sti­tu­tion.

This ar­ti­cle is adapted from The Case for Im­peach­ing Trump by El­iz­a­beth Holtz­man.

LAW­LESS Trump’s ac­tions, like lift­ing sanc­tions on China-based com­pany ZTE, have in­ter­sected with his busi­ness. He has also ap­proved fam­ily sep­a­ra­tion “with­out law­ful au­thor­ity.”

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