The House Must Flex Its Constitutional Muscles to Get to Trump

By Laurence H. Tribe, Guardian UK

30 September 19

Only the procedures enshrined in the impeachment process have the power to cut through the president’s smokescreens

here is now powerful evidence that Donald Trump committed impeachable offenses by using his foreign policy and military powers to solicit (and all but coerce) Ukraine’s president to interfere with the 2020 presidential election. Nancy Pelosi, speaker of the House of Representatives, has confirmed that the House will move swiftly to investigate this threat to democracy, national security, and the separation of powers.

The first stages of that impeachment inquiry are already underway. It’s therefore important to think ahead about what should happen as the House inquiry unfolds – especially in the House intelligence and judiciary committees, chaired respectively by Adam Schiff and Jerrold Nadler. If the House is going to impeach the president, it better have a plan.

This may seem obvious, but it’s easy to lose sight of the bigger picture. Each passing day brings new revelations about the depth of Trump’s abuses, and the involvement of senior officials in fomenting or concealing them. Trump and his allies have responded by seeking to daze and disorient the public; they apparently hope to gaslight their way past high crimes and misdemeanors. With so many fires being set, attention is focused on the latest breaking news.

Moreover, talk of congressional strategy and procedure is boring. That’s true even for law professors like me. It’s one thing to believe that impeachment is necessary; it’s quite another to think about how the House will carry it out.

But here, process is profoundly important. As Joshua Matz and I explain in our book, To End a Presidency: “Procedure is where romantic ideas about legislators as the voice of the people collide with institutional reality. Good process is crucial to making thoughtful, accurate, and legitimate decisions. It’s through these rules that Congress evaluates the evidence and structures its deliberations … Impeachments must therefore be fair and appear fair.”

First and foremost, that means undertaking a thorough investigation. The House cannot make a reasoned judgment about whether to impeach – and what to include in articles of impeachment – without a clear understanding of what exactly Trump (and those in his orbit) did wrong. And there is clearly much more to this story than is yet known publicly.

Don’t get me wrong: we already know a lot from the rough transcript of Trump’s call with Ukraine’s president, the whistleblower complaint, Trump’s public statements, and credible news reports. That information alone supports a powerful case for impeachment. At minimum, it shifts the burden to Trump to disprove the obvious inference that he abused power, violated his oath, betrayed the nation, and acted corruptly.

But the House, and particularly the intelligence committee (which is expert in these matters), must probe further. Principles of due process require that Trump and other officials be afforded a meaningful opportunity to tell their story under oath. However unlikely, it is at least conceivable that they will offer context which casts the public record in a different light. At the same time, there is evidence that Trump’s abuses rippled out in many directions. Even as it weighs Trump’s fate, the House is duty-bound to examine any possible threats to national security and fair elections.

So the House must investigate – and must do so quickly. This presents its own dilemma. Trump has spent the past year “fighting all the subpoenas” with bogus legal arguments meant to justify near-total defiance of Congress. The House has gone to court to compel compliance with its subpoenas, but judicial process can take months or years. If Trump persists in such tactics, he could deny the House access to key witnesses and testimony, or could string the House along while pretending (in bad faith) to negotiate.

Given the urgency of the situation, the House has no choice but to issue a firm ultimatum to Trump: comply with our subpoenas immediately or we will infer that your unlawful obstruction is itself proof of guilt. This is well within the House’s authority. When the House opens an impeachment inquiry, it wields extraordinary constitutional powers and serves as the ultimate check on a rogue president. It can therefore overcome virtually any executive branch privilege or immunity. Otherwise, the president could commit high crimes and misdemeanors and defeat accountability by simply defying all efforts to discover his wrongdoing.

The House has already embarked on this path. On Friday, the House foreign affairs committee, in consultation with the House intelligence and oversight committees, issued a first round of subpoenas – and made clear to recipients that “your failure or refusal to comply with the subpoena shall constitute evidence of obstruction of the House’s impeachment inquiry.” That is exactly the right procedure.

Over the coming weeks, the House will presumably serve many more subpoenas. If the executive branch lawlessly refuses to turn over evidence demanded by the House, that will be impeachable obstruction of Congress and further proof of Trump’s guilt. If evidence is turned over and tends to confirm that Trump abused his office, the House will need to move quickly toward articles of impeachment.

That’s where the Judiciary committee comes in. Under the House rules – and consistent with the Richard Nixon and Bill Clinton precedents – the Judiciary committee takes a lead role in the impeachment process. That makes sense, since any impeachment raises a host of complex constitutional and legal questions, and the judiciary committee is uniquely equipped with the expertise, experience, and staff to help the House navigate those challenges most effectively.

As the intelligence, foreign affairs and oversight committees investigate, the judiciary committee must set to work. It may wish to hold hearings on three sets of issues: first, the final factual conclusions reached by other committees that bear on impeachment; second, the many legal and constitutional judgments involved in deciding whether to impeach (and on what specific grounds); and finally, how the Ukraine issue might relate to other instances of self-dealing, obstruction, and abuse already under investigation. The judiciary committee has already adopted procedures for impeachment hearings and can use them here (including a mechanism for allowing Trump to respond to its findings).

Eventually, if impeachment is warranted, the judiciary committee – acting closely with the other investigating committees – will need to produce a detailed factual and legal report making that case, along with specific proposed articles for the House to vote on. The judiciary committee report recommending articles of impeachment against Nixon is one of the great works of constitutional law of the 20th century.

They should follow that model here, both to present the strongest possible case to the public and the Senate and also to document for history the record of Trump’s outrageous misconduct. But it will have to do so expeditiously. Time is not the friend of this indispensable effort to hold a renegade president properly to account – and to protect the republic from his continued and seemingly escalating abuses.

The months ahead will be trying. Trump will pull out all the stops as he fights for his political life. But the impeachment power was built for moments like this one. It exists to guard against would-be tyrants who sacrifice democracy and sell out national security to advance their private self-interest, especially when they embroil foreign nations in that corrupt effort. The House must invoke that power wisely and decisively as it investigates Trump’s misconduct – and decides how best to activate our constitution’s ultimate safeguard.

Making the Rule of Law a Reality Show

By Marc Ash, Reader Supported News

30 September 19

he prevailing meme on how to impeach Donald Trump post-Ukraine-gate is to “keep it simple.” Specifically, focus on the call between Trump and Ukrainian president Volodymyr Zelensky. Without a doubt, the call and what Trump said on it warrant impeachment.

For three years, Trump and his enablers have been telling us he did not collude with Russian efforts to sway the 2016 election in his favor. The transcript of the Zelensky call tells a different story. It clearly shows Trump not just colluding, but blatantly attempting to orchestrate a new round of foreign interference on his behalf by what appears to have been a reluctant Ukrainian president. As if saying to US law enforcement and Congress, “Here I’m doing it again, see if you can stop me this time."

But it gets worse. Far from being the enthusiastic participant Putin was, Zelensky appears to have wanted no part of it. At which point Trump doubles down and directly ties military aid to combat a Russian offensive with Zelensky’s cooperation in fabricating politically damaging evidence against 2020 Democratic presidential hopeful Joe Biden, whom Trump seems to assume or want to be the eventual nominee. 

Is this treasonous? Let us count the ways. First of all, Trump is again doing Putin’s bidding. The Russian offensive in eastern Ukraine is a major security threat to the region, and it is certainly in the best interest of US national security to mitigate that. Zelensky and the Ukrainians are resisting the Russian offensive. Trump’s approach is an aid to the Russian offensive and a detriment to the Ukrainian resistance. 

The argument can be made that a US proxy war with Russia in eastern Ukraine is not the way to promote peace in the region. Likely it is not. That, however, does not in any way justify Trump going rogue to aid the Russians. 

The problem for the Democrats is that although Ukraine-gate gives them plenty of good cause for impeachment, and it does, it is difficult to divorce from previous Trump transgressions. The Ukrainian phone call took place on the day after Mueller’s testimony before Congress – a day when Democrats had all the evidence they needed to impeach and no stomach for doing anything about it. 

If the election interference component of Ukraine-gate sounds familiar, it should; it is Trump trying to use the same playbook that got him elected in 2016. The problem and the accelerant here is that neither Congress nor the Justice Department took any meaningful legal action to confront Trump’s blatantly unlawful conduct.

What is different about Ukraine-gate appears to be that the public gets it. It is, for whatever reason, resonating with voters in a way that Russian interference in the 2016 election, the firing of the director of the FBI to obstruct the subsequent investigation, the Mueller report, or the deliberate torture of child asylum seekers at the US-Mexican border did not. This one is not necessarily more serious – they were all mind-bogglingly serious – but it is more marketable. 

Trump’s conduct in the Ukrainian affair, as in the other impeachable instances, is patently illegal. He is a clear and present danger to US and global security. If the public now sees that through the lens of Ukraine-gate, then so be it. Public awareness of the scope of the Trump threat is long overdue.

The danger here is that Pelosi and Democrats deferred to public opinion and were resigned to inaction because of fear of political consequences. Yes, they now have a more compelling issue in the court of public opinion. 

But they also have a rogue and criminal president who is emboldened by his ability to flout the law and the Constitution and strengthened by additional time to marshal the resources of the American presidency to consolidate his grip on power. This is the danger of subjugating the rule of law to public opinion and political expediency. The rule of law becomes a reality TV show, literally. 

Defending the Constitution is not guaranteed to be clean, fun, or politically convenient, but the alternatives are the stuff of fascist revolution.

It would probably be a sound strategy for the Democrats not to forgive through omission Trump’s previous illegal conduct. They may choose to focus on Ukraine-gate, which depending upon what is on the super-secret NSC server may be only be getting started, but they should not lose sight of or trivialize the conduct that set the stage for the call with Zelensky. 

The Democrats need to keep all options on the table at this stage.

Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.