To: Interested Parties
From: Arn Pearson, Senior Fellow, People For the American Way
Date: September 27, 2017
Re: The Power of Impeachment: Grounds, Modern Practice, and President Trump
The power of impeachment—firmly embedded in American history—is the one tool our Constitution gives Congress to redress abuses of power and the public trust by the President of the United States. It plays a critical role in our system of checks and balances, and was embraced by the framers of the U.S. Constitution and most state constitutions to ensure that we didn’t throw off a monarch only to suffer at the hands of an elected tyrant.
Given the mounting evidence of several major scandals within the Trump administration—including credible accusations of obstruction of justice, violations of the Constitution’s emoluments clause, and assorted attempts at self-enrichment—it is important that Americans understand the meaning of our Constitution’s impeachment provision and how it would apply to President Trump’s behavior if exercised.
Scope of impeachable offenses
Article II of the Constitution provides that,
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Treason and bribery are clear, and “high Crimes and Misdemeanors” is intended to cover what George Mason called “many great and dangerous offenses.” The phrase is not limited to indictable violations of law. It was commonly used in England at the time of the Constitutional Convention to denote “political crimes,” ranging from abuses of power and breaches of public trust to serious misconduct that undermines the constitutional system or demeans the public office. The Constitution does not, however, provide for impeachment just because Congress thinks the President is doing a bad job or disagrees with his or her policies. The framers explicitly rejected adding “maladministration” to Article II.
Based on that history, Charles Lund Black’s treatise on impeachment argues that impeachable offenses include, but are not limited to: income tax fraud; using the power of government to harass political opponents; withholding appropriated funding “for the purpose of destroying authorized programs”; unauthorized military actions, if extreme (such as President Nixon’s secret bombing of Cambodia); “improper campaign tactics”; and obstruction of justice.
Offenses committed by family members or subordinates are not considered grounds for impeachment, unless the President condones, encourages, or is indifferent to the misconduct. The Articles of Impeachment against President Nixon included “failing to act when he knew or had reason to know that his close subordinates endeavored to impede” investigations and Congressional inquiries related to the Watergate break-in and cover-up.
Similarly, acts committed prior to assuming office are generally thought to lie outside of the impeachment process, because it is intended to be a political remedy for political misconduct, not for past wrongdoing. It is, however, ultimately up to Congress. Congress could conceivably decide that a past crime brought to light during a president’s tenure was so egregious as to make the president unfit for office.
Modern-era presidential impeachments
The Constitution’s impeachment clause has been used by Congress twice in recent times—against President Richard Nixon for his role in the Watergate scandal, and against President Bill Clinton for transgressions related to the Paula Jones sexual harassment lawsuit.
The articles of impeachment against President Nixon approved by the House Judiciary Committee, first and foremost, dealt with his obstruction of justice. The lengths to which Nixon went to hide the Watergate break-in and block investigations of his abuses of power popularized the phrase, “the cover-up is worse than the crime.” The House charges against Nixon for his attempts to obstruct justice included making false and misleading statements to government officials; withholding evidence; interfering with investigations by the Department of Justice, FBI, the special prosecutor, and Congressional committees; approving hush money; misusing the CIA; and trying to silence defendants or reward people of interest for remaining silent or giving false testimony.
Interestingly, the obstruction of justice article also included, “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States” concerning investigations.
The second article of impeachment against Nixon was for abuse of power, including use of the IRS, FBI, and Secret Service to harass and spy on the president’s political enemies.
Articles hotly debated but ultimately not approved alleged receiving “emoluments from the United States in excess of the compensations provided by law,” and falsifying records in order to keep secret his administration’s massive bombing campaign against Cambodia.
Similarly, the two articles of impeachment against President Clinton also focused on obstruction of justice—by ““personally, and through his subordinates and agents” attempting to “delay, impede, cover up and conceal the existence of evidence”—and “willfully corrupt[ing] and manipulate[ing] the judicial process of the United States for  personal gain” by giving false and misleading testimony to a grand jury. Two other articles, dealing with perjury in depositions and making false and misleading statements to Congress, were passed by the House Judiciary Committee but failed on the House floor.
Both the Nixon and Clinton impeachment articles note a president’s “constitutional duty to take care that the laws be faithfully executed.”
Potential grounds for impeachment of President Trump
Impeachment is ultimately a political process to address a political problem, so it will likely take dramatic events—such as Trump firing Special Counsel Mueller or being indicted by a grand jury—and a wave of public protest to move the Republican majority in the House to action. If that moment arrives, there is already more than enough in the public record to warrant commencing the process.
Ethics experts from both sides of the partisan divide agree that Trump’s actions with respect to FBI director James Comey, his firing of Comey, and his public attacks on Special Counsel Mueller constitute obstruction of justice—the cornerstone of both the Nixon and Clinton impeachments. Mueller has recently requested White House documents related to the firings of both Comey and National Security Advisor Michael Flynn.
Trump has hardly been subtle about his desire and attempts to derail investigations of his campaign and inner circle. Trump publicly stated that he fired FBI Director Comey in order to reduce pressure from the Russia investigation, and Comey’s testimony before Congress revealed at least three occasions on which Trump tried to influence his work.
Since then, Trump has repeatedly attacked the integrity of Special Counsel Mueller—sparking widespread concern in Congress and the public that Trump would attempt a remake of Nixon’s “Saturday Night Massacre”—at the same time that he was sending conciliatory (and inappropriate) messages to Mueller through his attorneys.
Federal law makes it illegal to “corruptly or by threats or force, or by any threatening letter or communication, influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice.” While legal experts debate whether a sitting president can be indicted, there is no question about—and plenty of precedent for—Congress’ ability to impeach a president for this type of behavior.
While obstruction of justice is the most obvious ground for impeachment, other actions (and inactions) of President Trump during his first eight months in office constitute potentially impeachable offenses. Chief among them are:
Violation of the Constitution’s Emoluments Clause
Article I of the Constitution bars any officeholder from accepting any gift or “emolument” from any foreign state. Emolument is an old term meaning a “gain, profit, [or] advantage” arising from an office or position.
President Trump has run afoul of that clause by refusing to divest of his global real estate holdings and place them in a blind trust, thus leaving the door wide open for foreign agents to curry favor by patronizing, buying, or investing in his business ventures. Citizens for Responsibility and Ethics in Washington (CREW), 196 members of Congress, and others have filed lawsuits have against Trump for violating the Emoluments Clause, and a U.S. District Court has scheduled CREW’s complaint for oral argument in October.
Abuse of Power
Misusing the powers of the presidency is recognized as clear grounds for impeachment. President Nixon was impeached for abusing the powers of his office to harass political enemies, engage in illegal campaign finance schemes, and interfere with federal agencies. Similarly, one of the articles of impeachment against President Clinton (passed by the House Judiciary Committee but defeated on the floor) alleged that Clinton used “the powers and influence of the of the office of the President” to “undermine the integrity of his office,” bring “disrepute on the Presidency,” “betray his trust as President,” and “act in a manner subversive of the rule of law and justice.”
In President Trump’s case, the list of abuses of power is long and growing longer by the day. Among other things, Trump has pressured Attorney General Jeff Sessions to prosecute his 2016 election opponent, Hillary Clinton; directly and through his underlings attempted to intimidate and interfere with the Office of Government Ethics’ efforts to enforce ethics laws; and sought to intimidate and undermine a free press.
And if, god help us, Trump were to launch a war against North Korea without obtaining congressional approval, that too could be grounds for impeachment. Senator Dan Sullivan—who represent the most vulnerable state, Alaska, and sits on the Armed Services Committee—went on Fox News to say that the Constitution is “very clear” that a “preemptive war [against North Korea] would require the authorization of Congress.”
Evidence that President Trump has cashed in on his presidency for personal gain—and has enabled or turned a blind eye to his family and subordinates doing the same—could also serve as grounds for impeachment. Trump’s refusal to divest of his business empire means that he has personally benefitted from the increased attention and profits his election has brought to his companies.
Since Trump took office, he has used his properties—such as the Mar-a-Lago resort in Florida—to conduct public business and take his numerous vacations. Mar-a-Lago doubled its initiation fees to $200,000 in January, and Trump’s Washington, D.C. hotel made a $2 million profit in in the first four months of 2017, despite Trump Organization projections of a $2.1 million loss. That dramatic turnaround comes courtesy of the hotel being able to charge the highest prices in town for the cadre of cabinet members, GOP officials, lobbyists, and foreign dignitaries who choose the hotel in order to maximize their influence. In addition, Trump’s reelection campaign spent $600,000 on Trump-owned properties in the first half of this year alone.
“I think our brand is the hottest it has ever been,” Eric Trump told the New York Times.
Meanwhile, Trump has granted ethics waivers to White House appointees that have enabled them to influence public policies that directly benefit their business interests. Trump made his son-in-law, Jared Kushner, his lead advisor on Middle Eastern affairs, even though Kushner’s real estate empire is heavily dependent on Israeli financing and sought a $500 million investment from Qatar. And Carl Icahn, who Trump appointed to be a special advisor on “issues relating to regulatory reform,” used his post to push for changes in regulations that would save his businesses hundreds of millions before resigning under media scrutiny in August.
A tipping point?
The Republican majority in Congress may still seem a long way from embracing impeachment of their own party’s president, but major scandals often have a tipping point, and the path has been blazed before.
Based on the intrepid reporting of Washington Post reporters Bob Woodward and Carl Bernstein, the Senate voted 77-0 shortly after Nixon’s inauguration in 1973 to form a Select Committee on Presidential Campaign Activities. The Committee’s dramatic hearings began that May—the same month Archibald Cox was appointed as special prosecutor—and captivated the country.
But it took Nixon’s order to fire of Cox in October 1973, the resulting resignations of the Attorney General and Deputy Attorney General, and the indictment of a Nixon aide before the House Judiciary Committee formally initiated the impeachment process in February 1974. In the end, seven Republican committee members joined the Democrats to send articles of impeachment to the House floor, and Republican support for Nixon in Congress quickly evaporated.
Congressional Republicans have begun sending Trump signals that they won’t tolerate any Nixonian moves to fire Attorney General Sessions and oust Special Counsel Mueller.
Senator Lindsey Graham (R-SC) warned that forcing out Mueller “could be the beginning of the end” of Trump’s tenure in the White House, and Rep. Mike Simpson (R-ID) said “All hell would break loose” if that happened.
Two bipartisan pairs of Senators have introduced bills that would prevent Trump from removing Mueller as special counsel without cause and federal court approval—both of which were considered yesterday during Senate committee hearings—and Senate Judiciary Committee chair Chuck Grassley (R-IA) said he would not allow a confirmation hearing on any new Attorney General nominee should Trump fire Sessions.
Meanwhile, House Democrats in Congress are increasingly using “resolutions of inquiry” (ROIs) and other procedural mechanisms to try to force their Republican colleagues to deal with the Russia scandal and Trump’s ethical morass. ROIs, which under House rules require a floor vote within 14 days, are sometimes viewed as a precursor to impeachment.
House Financial Services Committee Democrats introduced an ROI on July 14 “to follow the Trump money trail,” seeking broad information from the Treasury Department’s Financial Crimes Enforcement Network concerning the business dealings of Trump, his family, and a long list of associates. Rep. Dan Kildee’s (D-MI) press release stated that, “The Ranking Members are determined to investigate any financial dealings between the President, his associates and Russia, and to uncover any evidence of illicit activity that may have compromised the President and this country.”
The ROI was voted down 34-26 in Committee, and then referred to the House floor on July 28 with an adverse report and minority views. The minority report references Trump’s “alleged ties to Russian government officials, oligarchs, and organized crime leaders,” as well as the “highly suspicious circumstances” surrounding his $340 million in loans from Deutsche Bank.
Special counsel Mueller may be thinking along the same lines. The Daily Beast reported in August that Mueller has brought the IRS’s financial crimes unit into his investigation, and the former Justice Department attorney who led the agency’s Enron probe now serves on his team. The FBI also raided former Trump campaign chairman Paul Manafort’s home in July, and prosecutors reportedly told him to expect an indictment. Manafort, a lobbyist for numerous foreign interests, has had extensive business activities in Ukraine and owes millions to a Russian oligarch who is close to Putin.
Ultimately, public pressure may play the pivotal role in spurring House Republicans into action, especially if Trump’s base of support continues to erode as we approach the 2018 midterm elections. Polls already show much stronger public support for impeachment of Trump (42%) than there was for Nixon (24%) when the House took action.
Congress need not wait for a fully developed case before stepping up to the plate to hold Trump accountable to the Constitution and the rule of law. When the impeachment process began against President Nixon for his abuses of power—including obstruction of justice—much of the evidence still had not come to light, and the outcome was far from clear. The House Judiciary Committee’s hard-hitting and bipartisan investigation unearthed serious crimes, Nixon read the handwriting on the wall and resigned, and we became a better nation for it.