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A Case For Impeaching President Trump

By Barbara Radnofsky August 24, 2018, 3:35 PM EDT

The impeachment and acquittal of President Bill Clinton modernized impeachment law, and streamlined an increasingly used congressional process. Since the Watergate-era process that produced the proposed articles of impeachment against President Richard Nixon (which were a major source of guidance for the Clinton impeachment prosecutors), we’ve experienced six of all 19 impeachments in our history. Half of all impeachment convictions in history have occurred from 1986 to now.

Impeachment in the House, and trials of impeachment in the Senate, are neither civil nor criminal proceedings, and thus involve no civil or criminal penalties. The U.S. Founders’ adaptation of the ancient term of art, “high Crimes and Misdemeanors,” requires no actual crime or misdemeanor, but rather concerns a high civil officer endangering our country, society or system of government. Previous impeachment convictions prove that impeachment requires neither “crime” nor “misdemeanor” — or even intent. But every past U.S. impeachment case, and particularly President Clinton’s, demonstrates that:

  • Mere claims of “manifest injury” absent proof of substantial effect upon our people or system of government will not justify Senate conviction; and
  • Proof of a crime is insufficient for the impeachment conviction “penalty” of removal from office.

Unlike criminal prosecution, impeachment carries no risk of jail or other loss of liberty — and double jeopardy does not apply.

In contrast to the impeachment process, the criminal process of the U.S. justice system cannot remove a president. If a president was convicted of a crime — unlikely given traditional notions of deferred presidential prosecution in this country — and even jailed while in office, he or she would retain the office. The president would govern from jail — unless the jail sentence was for a federal crime, and he or she chose to abuse the  presidential pardon power by self-pardoning.

The Clinton impeachment, and the more strategically organized judicial impeachments that have occurred since then, made thoughtful use of more than one impeachment article, part of a common practice throughout U.S. history of pleading multiple grounds and/or acts separately, then repeating, rephrasing and combining allegations. U.S. impeachment practice also permits strategic combination of earlier claims in “omnibus” or “catch-all” articles, a practice approved by the Senate in its sole power.

The efficiently conducted Clinton impeachment trial vindicated the intent of the revolutionaries-turned-statesmen who founded this country upon the rule of law, and envisioned impeachment as a regular process, without which we would face “tumults and insurrections.”

Below is a modern omnibus impeachment article, assuming the existence of other, more specific articles.[1]

In the Matter of Donald J. Trump: An Omnibus U.S. Impeachment Article

The President of the United States, Donald J. Trump, in violation of his constitutional Oath that “I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States,” and his duty to “take care that the laws be faithfully executed,” acting himself and by use of incompetent and corrupt agents and minions, and in other manners described herein, has caused and continues to cause substantial harm to the people, society and system of government of the United States, by impeachable acts and omissions, with great, harmful, cumulative effect.

The following charges encompass past — as well as ongoing — serious, substantial, harmful maladministration, in that:

  1. He betrays our trust to foreign enemies and powers. He is a serious, ongoing threat to national security and our democratic system of government.
  2. He betrays our country’s trust to foreign attackers, as enemies of the country continue to wage war on our democratic institutions. His repeated, ongoing failures to protect and defend the country and confront our enemies cause great harm and future risks. He enhances the chance of unnecessary military conflict.
  3. He promotes loss of faith, fear in the populace and distrust in the integrity of our electoral system and democratic processes.
  4. He has engaged, personally and through his subordinates and agents, in harmful abuses of power and courses of conduct with a media company, friends, counsel and enemies of the United States to suppress information, misleading the public with lies and deception, suppressing news of public interest, oppressing a constitutionally protected free press, effectively chilling free speech and paying hush money to witnesses and others. He has seriously undermined, and continues to represent a threat to, the U.S. democratic and electoral process by concealing evidence and testimony, violating the separation of powers, interfering with, impeding and obstructing the administration of justice and the work of independent branches of government. He persists in such conduct on a near-daily basis.
  5. As candidate, nominee and president, he has abused his power, in a continuing course of conduct, personally and through his subordinates, engaging in lies, cover-ups, and impeding and obstructing of justice, including actions constituting jury tampering, witness tampering, witness intimidation and improperly attacking credibility of witnesses. The continuing misconduct, including his and his subordinates’ directions and lies, caused interference with the outcome of U.S. electoral processes and ongoing, serious harm to the reliability and reputation of our system of government. This continuing misconduct constitutes an attack on our electoral system and concealment of that attack, serious ethical and legal violations, the taking and handling of excessive contributions and illegal corporate donations, federal financial disclosure violations, and violations of state and federal tax, reporting, nonprofit and other regulations and laws protecting the public and our democratic system. He failed to disclose debts owed for hush money and expenses to cover tax and other frauds, paid to his lawyer and ultimately to witnesses to buy silence concerning his own misconduct. He and his subordinates repeatedly lied to cover up these serious, harmful wrongdoings.
  6. As President of the United States, he embraced, justified and ratified serious, harmful past misconduct of his presidential campaign’s high officers, agents and representatives during the presidential campaign in meetings with agents of a foreign power, for purpose of interference with, or to influence the outcome of, the U.S. electoral process, including the  presidential election won by him. E.g., in an Aug. 5, 2018, reference to one such meeting with a foreign agent, he acknowledged “the meeting my wonderful son, Donald, had in Trump Tower. This was a meeting to get information on an opponent. …”
  7. He has claimed publicly, through his legal representative and in his own words, that he has “the absolute right to PARDON [himself],” in violation of fundamental legal principles and the rule of law. His tyrannical claim of right to judge his own case destroys a basic tenet of our system of government.
  8. He has repeatedly abused his pardon power to reward unrepentant friends, political allies and individuals properly prosecuted by government officers — officers who he now seeks personally to intimidate, punish and degrade in the eyes of the public.
  9. He abuses his pardon power to shield himself, send clear signals to witnesses and interfere with investigations and prosecutions conducted by the judicial branch of government. His pardons subvert justice, bypass executive branch institutional checks on clemency abuse, cancel the contempt power of the judicial branch and violate separation of powers. On Aug. 22, 2018, his spokeswoman, queried on whether convicted criminal and former presidential campaign manager Paul Manafort might receive a pardon, implied he would not, for lack of satisfying a three-factor test: “The Manafort case doesn’t have anything to do with the president, doesn’t have anything to do with his campaign and it doesn’t have anything to do with the White House.” These presidential criteria for pardon (help for his presidency, help for his campaign, help for his White House) are abusive and reflect corrupt priorities in violation of the president’s constitutional obligations.
  10. He has abused, and threatens further abuse of, his power to terminate security clearances to retaliate against government officers who are loyal to the United States. He further harms U.S. national security by preventing these officers — whether currently serving or retired — from participating in future security discussions for the purposes of continuity of national defense, institutional memory and wise counsel. This abuse of power is a calculated attack against individual loyal officers, who are potential material fact and expert witnesses that could provide testimony concerning the dangers posed by his failures to preserve, protect and defend the United States from enemies attacking our electoral processes.
  11. He undertakes destruction of alliances, and alienates and harms allies, interfering in their internal political affairs, reducing deterrence and providing aid and comfort to authoritarian enemies — e.g., justifying Russia’s annexation of Crimea and pushing for Russia’s readmission to the G-7 while attacking our G-7 allies.
  12. He fails to consider proper advice for major agreements, betraying the trust of the American public, harming national security and U.S. allies — e.g., in dealing with North Korea, he agreed to cancellation of military exercises and U.S. base or troop removals, with apparent input from the president of Russia; honored the dictator of North Korea as loving and trustworthy; saluted a North Korean military official; refused to condemn North Korean atrocities; and subsequently declared that “[t]here is no longer a Nuclear Threat from North Korea.”
  13. He accepts — personally or via agents and family — massive, influential benefits such as gifts, loans and intellectual property rights, in some cases rising to the level of constitutionally defined emoluments, in other cases creating substantially harmful conflicts of interest. Feeble attempts to cure these conflicts via token donations are legally and factually inadequate to cure the massive harms caused.
  14. He is beholden to our enemies. His misconduct repeatedly reflects his ties to interests adverse to U.S. interests.
  15. In affairs domestic and foreign, he is incurably conflict-ridden. He continually acts in violation of his executive branch duties, including his duty as head of law enforcement. He places personal, financial, family and foreign interests above those of the United States, for reasons which may include blackmail and fear of exposure, desire for vindication and exoneration, incompetence, negligence and incapacity. His lies and coverups impede and distract from measures needed for the protection of the interests of United States.
  16. He impedes, interferes with and undermines the integrity of investigations and the administration of justice. He threatens witnesses and participants in anticipated judicial proceedings which may be adverse to his interests, while messaging certain potential witnesses to stay silent in exchange for future favors, e.g., pardons. He calls for abandonment of due process and the rule of law, engaging in harmful false claims, e.g.: “The appointment of the Special Counsel is totally UNCONSTITUTIONAL!” By example, he causes others to follow suit.
  17. 17. He calls for loyalty to himself and not to the United States, thereby challenging the rule of law and interfering in legitimate investigations.
  18. His big lies and other propaganda techniques harm the trustworthiness of the U.S. government, and cause mass deception of the American public.
  19. By incompetence, negligence and/or intentional action, he leaks information allowing manipulation of financial markets, and engages in security breaches that benefit enemies foreign and domestic, endangering national security.
  20. He engages in oppression, peculation, tyranny and misconduct, depriving people of their U.S. constitutional rights, promoting racial animus, terror, violence, attacks and hate crimes based on race, gender, religion and nationality, against both adults and children.
  21. By incompetence, negligence and/or intentional action, he allows individuals under his command to engage in cruel, unusual, inhumane and illegal conduct, and to neglect and delay necessary measures to prevent great harm and to save lives.
  22. He represents an escalating threat to U.S. citizens and other persons on U.S. soil, including persons of color, by his oppressive conduct. He calls for abandonment of due process. He normalizes white supremacists and their terrorism, radicalizing dangerous persons, and encouraging and ratifying misconduct by individuals including terror, violence and murders — e.g., acts of white supremacist terror in Charlottesville, Virginia — in a pattern known as “the Trump effect.”
  23. He fails to properly respond to natural disasters, in disregard of the constitutional rights of U.S. citizens in states and territories, leading to victims unnecessarily suffering and dying. He is responsible for FEMA’s decision to “filter out” Puerto Rico’s requests for life-saving aid. He deceives the country regarding his actions — e.g., falsely praising his response to the ongoing Puerto Rico crisis.
  24. He violates fundamental human rights in taking children from parents, illegally denying due process, humane detention conditions and right of return to fit parent owed to adult and child asylum seekers and others on U.S. soil. He engages in crimes against humanity and implements arbitrary, extreme, unlawful policies interfering in family life, violating children’s rights under U.S. and international law. The American Bar Association describes his policy  of forced separation of a child from a fit parent as “unnecessarily cruel … violat[ing] due process … antithetical to the very human values on which this country was founded … [and a] terrible example for the rest of the world.”
  25. As asylum-seekers await justice, imprisoned, separated from their suffering children, he has illegally redefined asylum ex post facto, thus returning asylum-seekers to certain death.
  26. He abuses his powers and violates the separation of powers, poaching powers of independent branches of government, exceeding the constitutional boundaries of his office in derogation of the powers of the separate branches.
  27. He fails to faithfully execute the law, refusing to enforce laws properly enacted for the public good and protection of the country.
  28. He impairs citizens’ constitutional exercises of free speech, including peaceful protest.
  29. He has lied, abused his powers, and attempted by threats to silence those who have accused him of sexual and other misconduct. He creates and promotes oppressive, denigrating and other harmful conditions for persons whom he has maligned, and influences others to emulate his harmful conduct.
  30. He made wrongful use of a charitable foundation to benefit his campaign for president, violating tax and election laws, with selfish purpose including influence of federal elections, with actual awareness of the federal law barring tax-exempt involvement in campaigns.
  31. He continues to fail to faithfully execute his office; betrays trust; behaves in manners grossly incompatible with the proper function and purpose of his office; employs the office for improper purpose and personal gain; fails to guard against interference with democratic and electoral processes; fails to retain officers whose merit warrant their retention; fails to properly staff important posts; and improperly appoints, supervises and retains corrupt, conflicted and incompetent agents, officers and subordinates, ratifying their incompetence and corruption.
  32. He acts directly and vicariously through subordinates, for whom he is responsible.
  33. He abuses the prestige and benefits of his high office, including massive  communications platforms, government funds, officers and other resources. His betrayals influence individuals and entities to betray their trusts and to interfere with administration of justice.
  34. He brings the presidency into disrepute, subverting the rule of law and justice, to the manifest injury of the people, society, interests, government and constitutional system of the United States, undermining confidence in and the integrity and fairness of the various agencies, services and branches of our government.

Wherefore, the president, by such conduct, warrants impeachment and trial, removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States.

Barbara Radnofsky is an attorney, mediator and teacher, and author of “A Citizen’s Guide to Impeachment.” After her retirement from Vinson & Elkins in 2006, she became the first woman in Texas history to be nominated by the Democratic Party for U.S. Senate and state attorney general.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] The author’s book, “A Citizen’s Guide to Impeachment,” offers background on 19 U.S. impeachment cases, including cases analyzed by Supreme Court Chief Justice William Rehnquist, and his support of the process, at pp. 32, 86 and 141, and endnotes 323-24. See also pp. 36-38 and 65-77, and endnotes 158-169 and 258-295, for information on impeachment and judicial case cited herein. See pp. 3-4 and 21-30, and endnotes 1-3 and 79-138, for impeachment grounds and words of the framers.