Impeachment, as we have already seen, “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.”
“In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or the other, and in such cases there will always be the gravest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
Still, the framers of the Constitution gave Congress the power to impeach and remove the president from office for—as Alexander Hamilton argued in the Federalist Papers to make the case for ratification of that document by the states—“those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself.”
President Trump has done much to violate the public trust and much to injure our society. Trump’s claim to power over federal law enforcement to reward his friends and punish his enemies is dangerous but entirely opportunistic. The doctrinal claims by his Attorney General, William Barr, and other rightists to “plenary discretion over the prosecutorial function” is far more dangerous to our democracy than the corruption of a single president, however.
“The constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President,” Barr argues (emphasis by Barr), even for investigations into the president’s own conduct. And the president’s “absolute” and “non-reviewable” power over law enforcement includes the power to investigate political enemies for real or imagined crimes, the power that Trump and Barr have exercised for yet-to-be-named crimes by Vice President Biden In Ukraine. Elections have consequences, but elections in the United States have not had those consequences.
Trump’s exercise of the powers of the presidency under a claim of right to obstruct every effort to inform the American people of the president’s conduct is the single greatest danger to our democracy.
Congress has demanded information from presidents since Washington’s first term. Many members of Congress then had been delegates to the constitutional convention, such as Representative James Madison. They knew the framers’ intent, because they were the framers. An abundant body of law and democratic thought supports the power of Congress to inform itself and the American people. A prominent political scientist, Woodrow Wilson, wrote that if Congress is derelict in its duty to “look diligently into every affair of government,” then “the country must be helpless to learn how it is being served…[and] must remain in embarrassing, crippling ignorance of the very affairs which it is important it should understand and direct.”
The inspector general statutes that led us to our present-day impeachment moment were a response by Congress to the abuses of the Nixon presidency. The statutes scattered independent watchdogs across the government with power to audit federal programs, to investigate fraud and abuse, and to support congressional oversight. The IG statute for the intelligence community indisputably requires the Director of National Intelligence to provide the same report to congressional intelligence committees that the IG provided the Director of DNI about the allegations by the whistleblower within the intelligence committee. The whistleblower’s allegations are of serious misconduct by the Trump administration and by Trump personally, and the IG found the allegations credible and serious. The Trump administration refused to provide the intelligence committees the report despite the requirement of the statute and demand by the committees.
A Justice Department internal memo argues that the whistleblower’s complaint does not fall within that statutory requirement. But Barr has argued for more than 30 years that “dual reporting requirements” like the provisions of the IG statutes are an unconstitutional “encroachment on executive branch authority.” Barr was a senior official in the Department of Justice at the start of the George H.W. Bush administration. Barr argued in a militant 1989 memorandum widely distributed throughout government that “appropriate supervisors” should approve any information provided Congress. Barr said that the President had the power to “withhold in the public interest information” demanded by Congress, especially with respect to foreign relations and national security, but really with respect to all presidential action. “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved,” Barr wrote.
Trump promised a “warlike” response to congressional investigations as soon as Democrats won control of the House in the 2018 election, and to fight all congressional subpoenas. The Department of Justice claims discretion whether to prosecute criminal charges for defiance of congressional subpoenas that the House refers, and has not prosecuted. The Trump administration denies that Congress has any power to enforce subpoenas on their own, a power recognized by courts for centuries.
The administration claims that White House aides have “absolute immunity” from congressional subpoenas, and instructed aides to defy House subpoenas. A federal judge a decade ago said that the only authority for that argument was the Justice Department’s own internal memos and “a discredited notion of executive power and privilege.” The judge required Bush White House aides to testify.
The administration has instructed other witnesses who have not held any position in government to refuse to answer any questions about communications with the president under the claim of executive privilege, as Cory Lewandowski did in his thuggish testimony to the House Judiciary Committee. There is not a syllable of legal authority for that sweeping claim of executive privilege.
When challenged in court, the Trump administration has delayed the litigation with frivolous arguments and dilatory tactics forbidden by court rules and canons of legal ethics. On November 20, 2018, an exasperated judge denied the Trump administration’s twelfth motion in eleven weeks to stay litigation that challenged the Trump administration’s plan to include a citizenship question on the 2020 Census, a question obviously intended to inhibit Latino participation in the Census to the political benefit of Republicans. The administration, the judge said, had “tried and failed repeatedly to halt the orderly progress of this litigation.” The latest motion, the judge said, “makes so little sense…that it is hard to understand as anything but an attempt to avoid a timely decision on the merits altogether.” The administration’s defense of the citizenship question failed when the trial judge and the Supreme Court found that the non-discriminatory reason for the question given by senior administration officials in sworn testimony in court proceedings was not believable.
Trump’s allies have responded with all of the “animosities, partialities, influence, and interest” that Hamilton predicted, repeating Trump’s charges that House investigations are a “witch hunt” and “presidential harassment.” They argue that the many allegations of criminality by Trump—extortion and bribery, campaign finance violations, tax fraud, obstruction of justice, and so forth—remain unproven, and are fighting to keep them that way. “No quid pro quo” is the new “no collusion.”
The abuse of presidential power to conceal the president’s conduct is reason enough for impeachment. The House impeached Nixon in large part for a “course of conduct designed to delay, impede, and obstruct the investigation” of misconduct in both judicial and congressional proceedings; for “deceiving the American people into believing that a thorough and complete investigation had been conducted with respect to misconduct…and that there had been no involvement of [executive branch] personnel in such misconduct”; and for “endeavoring to cause prospective defendants…to expect favored treatment and consideration in return for their silence or false testimony.”
The House must go forward with the impeachment inquiry. Barr must go.
And then we must find a way to heal the injury to our society.