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Reich writes: "Donald Trump is causing a constitutional crisis with his blanket refusal to respond to any subpoenas."

Former Clinton labor secretary Robert Reich. (photo: Steve Russell/Toronto Star)
Former Clinton labor secretary Robert Reich. (photo: Steve Russell/Toronto Star)

The House Now Has a Constitutional Duty to Impeach Trump

By Robert Reich, Robert Reich's Blog

18 May 19


onald Trump is causing a constitutional crisis with his blanket refusal to respond to any subpoenas.

So what happens now? An impeachment inquiry in the House won’t send him packing before election day 2020 because Senate Republicans won’t convict him of impeachment.

So the practical political question is whether a House impeachment inquiry helps send him packing after election day. That seems unlikely.

Probably no more than a relative handful of Americans are still unsure of how they’ll vote on Nov. 3, 2020. An impeachment is unlikely to reveal so many more revolting details about Trump that these swing voters would be swayed to vote against him, and their votes wouldn’t make much of a difference anyway.

Besides, the inquiry probably wouldn’t reveal much that’s not already known, because House subpoenas will get tangled up in the courts for the remainder of Trump’s term (even though courts give more deference to subpoenas in an impeachment inquiry).

Worse yet is the chance that an impeachment inquiry plays into Trump’s hands by convincing some wavering voters that Democrats and the “deep state” are out to get Trump, thereby giving him more votes than he’d otherwise get.

Does this mean House Democrats should avoid taking the political risk of impeaching Trump? Not at all.

Another question needs to be considered — not just the practical political effect on the 2020 election, but something more important over the long run.

It is whether an action designed to enforce our Constitution is important for its own sake — even if it goes nowhere, even if it’s unpopular with many voters, even if it’s politically risky.

Every child in America is supposed to learn about the Constitution’s basic principles of separation of powers, and checks and balances.

But these days, every child and every adult in America is learning from Donald Trump that these principles are bunk.

By issuing a blanket refusal to respond to any congressional subpoena, Trump is saying Congress has no constitutional authority to oversee the executive branch. He’s telling America that Congress is a subordinate branch of government rather than a co-equal branch. Forget separation of powers.

By spending money on his “wall” that Congress explicitly refused to authorize, Trump is saying that Congress no longer has any constitutional authority over spending. Goodbye, checks and balances.

By unilaterally shuttering the government in order to get his way, Trump has said he has the constitutional right not to execute the laws whenever it suits him. Farewell, Congress.

By directing the attorney general, the Justice Department, the FBI and the Secretary of the Treasury to act in his own personal interest rather than in the interests of the American people, Trump is saying that a president can run the government on his own. Adios, Constitution.

By unilaterally threatening to cut off trade with the second-largest economy in the world, Trump is saying he has sole authority to endanger the entire American economy. (Make no mistake: If he goes through with his threat, the U.S. economy will go into a tailspin.)

By doing whatever he could to stop an investigation into Russian interference in the 2016 election, including firing the head of the FBI, Trump has told America it’s OK for a president to obstruct justice. Goodbye, law.

The core purpose of the U.S. Constitution is to prevent tyranny. That’s why the framers of the Constitution distributed power among the president, Congress and the judiciary. That’s why each of the three branches was designed to limit the powers of the other two.

In other words, the framers anticipated the possibility of a Donald Trump.

The framers also put in mechanisms to enforce the Constitution against a president who tries to usurp the powers of the other branches of government. Article I, Section 2 gives the House of Representatives the “sole power of impeachment.” Article I, Section 3 gives the Senate the “sole power to try all impeachments.”

Trump surely appears to be usurping the powers of the other branches. Under these circumstances, the Constitution mandates that the House undertake an impeachment inquiry and present evidence to the Senate.

This may not be the practical political thing to do. But it is the right thing to do.

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+32 # 2019-05-18 09:09
Amen! Gird up your loins dems and do what
is right not what is safe or comfortable!
A perfect statement from Mr. Reich! Thanks RSN.
+24 # ChrisCurrie 2019-05-18 10:03
It appears that the real purpose of Donald Trump's investigation of the FBI is to destroy all documents that might incriminate him. It also appears the he has promised to grant pardons any of those who get convicted of committing such crimes.
-19 # Dennis 2019-05-18 10:26
Still looking for the unicorn, eh Mr. Reich? There's a reason why the three branches are co-equal. Trump doesn't have to answer Congressional subpoenas.

Maybe running a candidate in 2020 who isn't a letch or a loony would increase your chances of undoing the 2016 Election... In fact, if Dems had run an honest primary, you might have the White House already!
-13 # Rodion Raskolnikov 2019-05-18 10:40
I don't think the house has a "duty" to impeach. It has the constitutional power or authority to impeach if a president commits serious crimes.

Refusing a house subpoena is not a serious crime. Everyone of us has the right to refuse to give our papers to the police. Here it is --

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

If a court issues an order, then of course Trump will have to comply. But congress is on a fishing trip, hoping to catch a whale. Mueller has already been over all of this. Congress can get from Mueller, if he will show the courtesy to appear. Why has he not been subpoenaed. Barr was.

Congress is playing politics with its constitutional powers. That's dangerous and unethical. Congress should just open impeachment hearings, then its subpoenas would carry a lot more weight. Right now, it is just a fishing trip.
+24 # wrknight 2019-05-18 11:53
Note, the Constitution specifically states "...SHALL impeach...."

It doesn't say "may impeach..." or "can impeach..."mayb e or possibly or "gee whiz, you might want to impeach...."

So if Democrats don't impeach, they are derelict in their duties.
-1 # Rodion Raskolnikov 2019-05-20 09:18
wrk -- but the constitution uses the word "shall" hundreds of times in the sense of establishing the existence of something such as authority or responsibility. Remember that the constitution is an establishing document not a legal judgment. For example:

"5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."

Also "shall" depends on finding high crimes or misdemeanors. Congress does not have those yet.

"Section 4
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."

Anyway, you have the meaning of "shall" wrong here.
+2 # Diane_Wilkinson_Trefethen_aka_tref 2019-05-20 10:14
Quoting wrknight:
Note, the Constitution specifically states "...SHALL impeach...."

To clarify wrknight’s comment, the future tense of the verb “to be” is conjugated “I shall, you will, he/she/it will; we shall, you will, they will” and that is all those words are – the future tense. However, “I will” and “We will” are much stronger; they are promises. Similarly, although “he/she/it will” are no more than the future tense, “he/she/it SHALL” are orders. That is why the Constitution’s directive that the House “SHALL [emphasis mine] have the sole Power of Impeachment” REQUIRES that the House vote a Bill of Impeachment if the evidence warrants.

But how can the House do this if they do not first investigate allegations that an impeachable offense has occurred? They cannot simply vote a Bill of Impeachment based on accusations. That is why “shall have the sole Power of Impeachment” is not only an explicit demand for the House to impeach, it is also an implicit demand, from the highest law of the land, that the House be granted access to whatever sources of information it needs to pursue an impeachment investigation.
0 # Rodion Raskolnikov 2019-05-20 17:15
Diane -- "But how can the House do this if they do not first investigate allegations that an impeachable offense has occurred? "

They do it in the same way a district attorney does it. They have clear evidence that a crime was committed and they believe they have the evidence to prove a certain person did it.

If congress has this, it should open impeachment hearings. This would give congress subpoena powers that are stronger and better than the run of the mill subpoenas for oversight.

The fact that congress is not opening an impeachment hearing, must mean they don't have evidence of a crime or proof that Trump committed it. They are still in the fishing expedition phase.

In the definition of "shall" you are correct in the first sense. Shall only means that "something will be." The constitution does not issue demands when it uses shall. It does in other instances.
+2 # DavidtheLiberal 2019-05-18 12:17
An impeachment this President wold be a Pyrrhic victory. It will gain nothing.
An impeached President Trump will not be convicted in this Senate. Not by this GOP Senate.
To avoid this, the public be brought to the point of driving the GOP Senate toward conviction. Right now, Trump is the GOP's useful idiot. He will appoint anyone whose name the Courts the Federalist Society sends him, and that's enough for Mr McConnell. McConnell will see to it that Trump is never convicted unless it will cost him an of his majority, hie leadership or his seat.
-1 # Rodion Raskolnikov 2019-05-20 09:23
DL -- even worse, it would put Pence in the white house. Pence has a better chance of being re-elected in 2020 than Trump does because Pence will unite the republican party. Pence would get the remainder of Trump's term plus two full terms of his own -- 12 years total. We just cannot survive that.

But I think we all know the congress is just campaigning for a democratic president in 2020. A beaten up and smeared Trump -- they think -- will be easy to beat. Maybe. But Lyndon Johnson understood these things better. He say, "never get into a pissing match with a pole cate." Pole cat is Texan for skunk. In a pissing match with a skunk, you always lose because a skunk can't smell his own stink, but Nadler and all his friends can smell it all over him. Watch out. Trump is a pole cat. These congressional democrats are playing a dangerous game.
-7 # dbrize 2019-05-18 14:35
More bloviation from Reich.

If Congress desired to perform its “Constitutional duty” we would not be involved in wars of choice, FISA courts would be nonexistent and 4th Amendment protections not abused on a daily basis.

Spare the crocodile tears over Congressional “duties”. Their chief “duty” with rare exception, is to gain re-election and leave with more capital than they began with. Lots more. They’re not about to let the Constitution get in the way.
+12 # gbdoc 2019-05-18 16:08
What a refreshing view, and what a pity it's so rarely articulated, and so often honored in the breach: Ther right thing needs to be done because it's the right thing to do. Whether it's opportune, or expedient, or somesuch is irrelevant.
-5 # HenryS1 2019-05-18 16:13
I am curious whether there is aboutRR's claim that impeachment hearings would give Congressional subpoenas more weight than subpoenas without impeachment.

I support Pelosi's strategy. Gather information, be reasonable, don't play into Trump's victim play-acting.

Impeaching now would fail to convict, strengthen Trump and make him harder to remove. The country clearly does not favor impeachment. Why should the Democrats in the House of Representatives commit political suicide and go against the majority position in public opinion for a guaranteed embarrassment and failure? That is the present outlook for immediate impeachment. It will lead to Republican advantage in upcoming elections. Impeachment's prospects may get better, with more evidence, and more Trump resistance to reasonable requests for information.

Why accept Trump's bully bait, take the premature first swing in a losing fight on the bully's home ground, have him win and everyone else lose? Be serious, the situation warrants it. This is not a boxing prize fight for personal entertainment.

If you really need the theatrical entertainment, note that a future impeachment right at the critical pre-election months would at least have some benefits. It would be stronger, it would have more evidence to present that would get and hold attention longer. The economy might not give Trump such an advantage as it does now.

Concentrate on NOT going to war against Iran.
+8 # lfeuille 2019-05-18 18:17
Impeachment proceedings would ive congressional subpoenas more weight because without them Trump can claim that the subpoenas have no legitimate legislative purpose. Impeachment is a function specifically assigned to the legislature in the constitution.
-1 # Rodion Raskolnikov 2019-05-20 17:21
The Supreme Court decision in the impeachment of Judge Alcee Hastings notes that impeachment proceedings give congress superior powers of subpoena than exist in a normal oversight hearing.

All subpoenas are part of a formal legal process. The power to subpoena arises from the nature of the proceedings. Right now, congress has no formal procedure against Trump. Neither did Mueller. So they really had no right to get anything from him unless he agree voluntarily to give it to them.

Nadler is a lawyer. Same for Schiff. They know all this. They are bluffing us. They are running a publicity gambit for themselves. They are milking this for all the TV time and campaign donations they can get. Mueller, too.
+1 # lfeuille 2019-05-18 18:19
Right you are Mr. Reich. Too bad the Dem. leadership in congress doesn't take it's constitutional duty seriously.
+7 # DongiC 2019-05-19 01:13
The arguments against impeachment are impressive but this issue cuts to the core of America's honor. Trump is not only a threat but a travesty. He violates the law almost daily, his word is worthless, his goals are beneath contempt. If the electorate cannot perceive the danger he poses to all of us, then, we are truly lost. Impeachment, sadly, is the House's number one priority, right now. Let the House of Representatives get on with it!
-3 # librarian1984 2019-05-19 02:51
All these people who are giving down votes to reasonable skeptics -- do you understand how impeachment works? Do you really think this Senate would impeach?
+1 # Diane_Wilkinson_Trefethen_aka_tref 2019-05-20 09:29
Quoting librarian1984:
. . . do you understand how impeachment works? Do you really think this Senate would impeach?
McConnell is refusing to assign some bills to committee which have been passed by the House or proffered by Democrats in the Senate. He is also refusing to let those bills come to the Senate floor. His stated reason for these actions is that the President isn't going to sign those bills anyway. However, the Constitution does NOT say that the probability of a Presidential veto is a good reason for a leader of either house of Congress to block consideration of legislation. In fact, exactly the opposite. Two paragraphs in Art I, Sec 7, lay out in precise detail how Congress is to handle a bill that has been vetoed by the President. It is NOT the job of Congress to pass laws that the President will sign. It is their JOB to pass laws that benefit the country.

In like manner, it is the JOB of the House to bring a bill of impeachment when they have evidence that warrants it. The Constitution does not say the House should not impeach unless the Senate is ready to convict. The Constitution appoints the House as prosecutor in cases of impeachment by conferring upon it “the sole Power of Impeachment". Just as it is a dereliction of duty for a prosecutor to fail to bring a case JUST because s/he might lose in court, it is a dereliction of duty for the House to fail to bring a Bill of Impeachment when there is good and sufficient cause to do so.

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